United States District Court, D. Arizona
Adam C. Cytron, Plaintiff,
PHH Mortgage Corporation, USAA Federal Savings Bank, Jason P Sherman, Kari Sheehan, and Daniel C Schmidt, Defendants.
G. Campbell United States District Judge.
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.
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.
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.
Failure to Comply with Rule 8.
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).
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.
Claims with no Cognizable Legal Theory.
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.
“Show me the Note.”
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