United States District Court, D. Arizona
A. Teilborg, Senior United States District Judge
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”),
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. (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).
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
Motion to Dismiss
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).
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)).
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).
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).
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).
Ariz. Rev. Stat. Ann. ...