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Palmisano v. JPMorgan Chase Bank National Association

United States District Court, D. Arizona

July 12, 2017

Joseph Palmisano, Plaintiff,
v.
JPMorgan Chase Bank National Association, Defendant.

          ORDER

          James A. Teilborg, Senior United States District Judge

         Pending before the Court are: (1) Defendant's Motion to Dismiss Plaintiff's First Amended Complaint (“Motion to Dismiss”), (Doc. 19); (2) Plaintiff's Response to Defendant's Motion to Dismiss (“Response”), (Doc. 22); and (3) Defendant's Reply in Support of Defendant's Motion to Dismiss (“Reply”), (Doc. 23).

         I. Background

         The Court assumes the facts alleged in the First Amended Complaint (“FAC”), (Doc. 16), are true for purposes of deciding the pending Motion to Dismiss. See Shwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000). For an unspecified amount of time, Defendant held a promissory note, the repayment of which was secured by a Deed of Trust recorded against Plaintiff Joseph Palmisano's Gilbert, Arizona property. (FAC at ¶ 5). Around June 28, 2013, Plaintiff attempted to sell the property to a third-party for $850, 000.00.[1] (Id. at ¶ 6; see also Doc. 22 at 1) (“Palmisano . . . attempted to sell his residence.”). Plaintiff requested a payoff demand statement to Jason P. Sherman, counsel for Defendant in a Chapter 11 Bankruptcy Case in which Plaintiff was the debtor. (FAC at ¶¶ 7, 13). Plaintiff alleges that his attorney believed that he was ethically prohibited from issuing a payoff demand directly to Defendant. (Id. at ¶ 14). After at least four written requests to Mr. Sherman between July and August 2013, (id. at 19), Plaintiff never received a payoff demand statement, (id. at ¶ 12). Plaintiff was unable to sell the property until May 2016 for $720, 000.00. (Id. at ¶ 15). As a result, Plaintiff alleges that he has suffered damages in the amount of $130, 500.00. (Id. at ¶¶ 16, 25).

         On November 2, 2016, Plaintiff filed his FAC alleging that Defendant violated Ariz. Rev. Stat. Ann. § 33-715(A) and 15 U.S.C. § 1639g by not delivering a timely payoff demand statement and further asserting claims of negligence and negligence per se against Defendant for violating the state and federal statutes. (Id. at ¶¶ 17-36).

         II. Motion to Dismiss

         Defendant moves to dismiss Plaintiff's FAC for failing to state a claim under Federal Rule of Civil Procedure (“Federal Rule”) 12(b)(6) because Plaintiff failed to comply with the Arizona statute for requesting a payoff demand statement, Section 1639g took effect after the events occurred, and the negligence claims are untimely. (Doc. 19 at 1-5).

         A. Legal Standard

         The Court may grant a motion to dismiss a complaint for failure to state a claim under Federal Rule 12(b)(6) for two reasons: (1) lack of cognizable legal theory; or (2) insufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). To survive a Federal Rule 12(b)(6) motion for failure to state a claim, a complaint must meet the requirements of Federal Rule 8(a)(2), which requires a “short and plain statement of the claim showing that the pleader is entitled to relief, ” so that the defendant has “fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

         Although a complaint does not need detailed factual allegations, the pleader's obligation to provide grounds for relief requires “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 555 (internal citations omitted). Federal Rule 8(a)(2) “requires a ‘showing, ' rather than a blanket assertion, of entitlement to relief. Without some factual allegations in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only ‘fair notice' of the nature of the claim, but also ‘grounds' on which the claim rests.” Id. at 555 n.3 (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1202 at 94, 95 (3d ed. 2004)). Thus, Federal Rule 8's pleading standard demands more than “an unadorned, the defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555).

         In deciding a motion to dismiss under Federal Rule 12(b)(6), the Court must construe the facts alleged in the complaint in the light most favorable to the drafter of the complaint and the Court must accept all well-pleaded factual allegations as true. See Shwarz, 234 F.3d at 435. Nonetheless, the Court does not have to accept as true a legal conclusion couched as a factual allegation. Papasan v. Allain, 478 U.S. 265, 286 (1986).

         B. Analysis

         Defendant argues that the Court should grant Defendant's Motion to Dismiss because Plaintiff's “claims fail under the terms of the statutes themselves.” (Doc. 19 at 1, 5). Specifically, Defendant contends that (1) the payoff demand was not filed with the branch as required under Ariz. Rev. Stat. Ann. § 33-715(G); (2) the payoff statement provision in 15 U.S.C. § 1639g took effect after the events giving rise to this case occurred; and (3) Plaintiff's negligence and negligence per se claims are untimely. (Id. at 3-5).

         1. Ariz. Rev. Stat. Ann. ...


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