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Gbelia v. Nationstar Mortgage LLC

United States District Court, D. Arizona

March 18, 2016

Peter Adolphus Gbelia, Plaintiff,
v.
Nationstar Mortgage LLC, et al., Defendants.

ORDER

Douglas L. Rayes United States District Judge

Before the Court is Defendant Nationstar Mortgage LLC’s (“Nationstar”) Motion to Dismiss. (Doc. 11.) The motion is fully briefed.[1] For the following reasons, the motion is granted.

BACKGROUND

Plaintiff is a Lieutenant Colonel in the United States Air Force. (Doc. 1-1 at 42, ¶ 1.) On September 20, 2007, Plaintiff borrowed $237, 500.00 from Miner Kennedy Association (“Miner Kennedy”) to purchase property in Chandler, Arizona (“Property”). (Id. at 43, 50-55.) The loan is evidenced by a promissory note (“Note”) executed by Plaintiff in favor of Miner Kennedy, and secured by a deed of trust (“DOT”) recorded against the Property in the Office of the Maricopa County Recorder.[2] (Id.; Doc. 11-1, Ex. 1.) The DOT identifies Plaintiff as the borrower, Miner Kennedy as the lender, Orange Coast Title as the trustee, and Mortgage Electronic Registration Systems, Inc. (“MERS”)[3]as the nominal beneficiary acting on behalf of Miner Kennedy and its successors and assigns. (Doc. 11-1, Ex. 1.)

Thereafter, the Note and DOT (collectively “Loan”) were transferred to AmTrust Bank (“AmTrust”). (Doc. 1-1 at 44, ¶ 7.) On December 4, 2009, the Office of Thrift Supervision closed AmTrust and appointed the Federal Deposit Insurance Corporation (“FDIC”) as its Receiver. (Id.; Doc. 11 at 3 n.4 (citing http://www.fdic.gov/bank/individual/failed/amtrust.html).)[4] That same day, pursuant to a Purchase and Assumption Agreement (“P&A”), AmTrust’s assets were transferred to New York Community Bank (“NYCB”). (Doc. 11-1, Ex. 2.) On September 3, 2010, the FDIC and Nationstar entered into an Agreement for Purchase and Sale of Servicing Rights (“Servicing Agreement”), in which the servicing rights to the Loan were assigned to Nationstar. (Doc. 11, Ex. 3.)

At some point, Plaintiff defaulted on the Loan.[5] MERS assigned the DOT to Nationstar (“Assignment”) on March 21, 2013, and recorded the assignment on April 2 of that year. (Doc. 1-1 at 43, 80-81.) On May 7, 2015, Nationstar substituted David W. Cowles as trustee (“Substitution of Trustee”). (Id. at 43, 77.) That same day, Cowles noticed a trustee’s sale of the Property for August 11, 2015 (“Notice of Trustee’s Sale”). (Id. at 43, 74-75.)

On August 10, 2015, Plaintiff filed his complaint in Maricopa County Superior Court, along with a motion seeking a temporary restraining order (“TRO”) enjoining the scheduled trustee’s sale. (Id. at 29-37, 42-48.) The court scheduled a hearing on Plaintiff’s TRO request, but vacated it after Nationstar voluntarily agreed to postpone the trustee’s sale pending resolution of this case. (Id. at 93-99.) Thereafter, Nationstar removed the matter to this Court pursuant to 28 U.S.C. § 1332, and now moves to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Docs. 1, 11.)

LEGAL STANDARD

When analyzing a complaint for failure to state a claim to relief under Rule 12(b)(6), the well-pled factual allegations are taken as true and construed in the light most favorable to the nonmoving party. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). Legal conclusions couched as factual allegations are not entitled to the assumption of truth, Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009), and therefore are insufficient to defeat a motion to dismiss for failure to state a claim, In re Cutera Sec. Litig., 610 F.3d 1103, 1108 (9th Cir. 2010). Nor is the court required to accept as true “allegations that contradict matters properly subject to judicial notice, ” or that merely are “unwarranted deductions of fact, or unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). To avoid dismissal, the complaint must plead sufficient facts to state a claim to relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This plausibility standard “is not akin to a ‘probability requirement, ’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557.)

DISCUSSION

Plaintiff’s claims are brought pursuant to A.R.S. § 33-420, which states, in relevant part:

A. A person purporting to claim an interest in . . . real property, who causes a document asserting such claim to be recorded in the office of the county recorder, knowing or having reason to know that the document is forged, groundless, contains a material misstatement or false claim or is otherwise invalid is liable to the owner or beneficial title holder of the real property for the sum of not less than five thousand dollars, or for treble the actual damages caused by the recording, whichever is greater, and reasonable attorney fees and costs of the action.
B. The owner or beneficial title holder of the real property may bring an action pursuant to this section in the superior court in the county in which the real property is located for such relief as is required to immediately clear title to the real property as provided for in the rules of procedure for special actions. This special action may be brought based on the ground that the lien is forged, groundless, contains a material misstatement or false claim or is otherwise invalid. The owner or beneficial title holder may bring a separate special action to clear title to the real property or join such action with an action for damages as described in this section.

To state a claim under this section based on a misstatement of fact or false claim, Plaintiff must plausibly allege that (1) Nationstar knowingly recorded or caused to be recorded a document containing a misstatement of fact or false claim and (2) the misstatement or false claim was material to him. Sitton ...


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