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Cytron v. PHH Mortgage Corp.

United States District Court, D. Arizona

December 12, 2016

Adam C. Cytron, Plaintiff,
v.
PHH Mortgage Corporation, USAA Federal Savings Bank, Jason P Sherman, Kari Sheehan, and Daniel C Schmidt, Defendants.

          ORDER

          David G. Campbell United States District Judge.

         Defendants PHH Mortgage Corporation, Kari Sheehan, and Daniel C. Schmidt move to dismiss pro se Plaintiff Adam C. Cytron's claims against them pursuant to Federal Rule of Civil Procedure 12(b)(6). Doc. 26. Defendant Jason P. Sherman has filed a separate motion, joining the first motion and asserting an independent argument that Plaintiff's claims are barred by A.R.S. § 33-807(E). Doc. 27. The motions are fully briefed. Docs. 28, 29, 35, 36. The Court concludes that oral argument will not aid in its decision. See Fed. R. Civ. P. 78(b). The Court will grant Defendants' motion and grant Plaintiff leave to file a first amended complaint.

         I. Background.

         On July 21, 2016, Plaintiff filed a 101-page complaint. Docs. 1 (Pages 1-62), 1-1 (Pages 63-101). The Complaint contains lengthy and disjointed factual allegations. From what the Court can decipher, the heart of Plaintiff's Complaint is as follows. In 2008, Plaintiff entered into a mortgage loan with Defendants and executed a deed of trust. Doc. 1-1 at 23. Plaintiff unsuccessfully attempted to obtain a loan modification from Defendants on several occasions between 2008 and 2015. Doc. 1 at 5. Plaintiff received notice that a trustee sale of his property was scheduled to take place on July 22, 2016. Id. at 12. The Complaint contained an emergency motion asking the Court to enter a temporary restraining order (“TRO”) to prevent the trustee sale. Id. The Court denied the motion. Doc. 6. The trustee's sale of Plaintiff's property was completed on July 22, 2016, and a trustee's deed was recorded on July 25, 2016. Doc. 26-1.

         The remainder of the Complaint is difficult to decipher. It refers to dozens of laws and regulations relating to securities and lending, but makes only rare attempts to connect those laws and regulations to the few facts alleged. See Docs. 1, 1-1. On Page 90 of the Complaint, Plaintiff suggests nine claims:

(1) declaratory relief; (2) negligence; (3) quasi contract; (4) violation of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692; (5) violation of the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2605; (6) violation of Business and Professions Code § Title 32[;] (7) accounting; (8) breach of contract; and (9) breach of implied covenant and good faith and fair dealing.

Doc. 1-1 at 27.

         II. Failure to Comply with Rule 8.

         As an initial matter, the Court finds that the entire Complaint may be dismissed under Rule 8. That rule provides that a complaint should contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). “Each allegation must be simple, concise, and direct.” Fed.R.Civ.P. 8(d)(1). A complaint that fails to comply with these requirements may be dismissed. See McHenry v. Renne, 84 F.3d 1172, 1179-80 (9th Cir. 1996).

         Plaintiff fails to concisely allege specific facts to support how each Defendant violated the particular right at issue in a given count. Plaintiff scatters facts throughout the complaint and includes allegations that seem irrelevant. The Court will therefore dismiss the Complaint with leave to file a first amended complaint. In a first amended complaint, Plaintiff should follow the directions set forth later in this order.

         III. Claims with no Cognizable Legal Theory.

         A number of claims referenced or implied in the Complaint have no cognizable legal basis. In the interest of efficiency, the Court will briefly address them.

         A. “Show me the Note.”

         In the Complaint, Plaintiff argues that “Defendants are not the true creditors” and “have no legal, equitable, or pecuniary right if any debt obligation exists.” Doc. 1-1 at 28. Plaintiff appears to suggest that Defendants had no authority to foreclose on their home because Defendants were not holders in due course of the original promissory note. Doc. 1 at 22-28 (“if proper negotiation of the Mortgage Note was not followed as required, the trusts that these trustees represent do not hold ...


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