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James v. Wells Fargo Bank NA

United States District Court, D. Arizona

March 27, 2018

Rodney Ray James, Plaintiff,
v.
Wells Fargo Bank NA, et al., Defendants.

          ORDER

          Honorable John J. Tuchi United States District Judge

         At issue are Defendant Wells Fargo Bank, N.A.'s Motion to Dismiss Complaint (Doc. 8, MTD), to which pro se Plaintiff Rodney Ray James filed a Response (Doc. 14, Resp.) and Defendant filed a Reply (Doc. 15, Reply); and Defendant's Motion to Quash Lis Pendens (Doc. 16), to which Plaintiff did not respond.

         I. BACKGROUND

         The facts relevant to the pending Motions are as follows: In July 2007, Plaintiff borrowed $90, 800 from Defendant to purchase a home in Casa Grande, Arizona. The loan, and Plaintiff's promise to repay it, were memorialized in a Note secured by a Deed of Trust recorded on June 18, 2008.[1] (MTD Ex. A.) In December 2012, Defendant substituted Quality Loan Service Corporation (“Quality”) as the Trustee under the Deed of Trust. (MTD Ex. B.) In 2014, Plaintiff and Defendant entered into a Loan Modification Agreement, recorded on September 2, 2014. (MTD Ex. C.) On November 22, 2016, Plaintiff recorded a document entitled “Notice of Revocation of and Collapse of Deed of Trust, ” whereby Plaintiff purported to declare a unilateral revocation of the Deed of Trust. (MTD Ex. D.) Following Plaintiff's failure to make his loan payments, Defendant and Quality sold the property at a Trustee's Sale on February 21, 2017. (MTD Ex. E.)

         On February 17, 2017, Plaintiff filed suit in Arizona state court, raising four claims against Defendant: (1) Defendant lacks standing as “Creditor in Fact” under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”); (2) Defendant “has not presented lawful, authenticated evidence supporting [Defendant's] claim of beneficial interest;” (3) Defendant violated the FDCPA; and (4) a request for emergency stay or Temporary Restraining Order to vacate proposed sale for lack of standing. (Doc. 1-1 at 2-7, Compl.) Plaintiff served Defendant with the Summons and Complaint on February 24, 2017. (Doc. 1-1 at 31.)

         Defendant removed the case to this Court on March 17, 2017. (Doc. 1.) The Court held hearings on March 20, 2017 (Doc. 5), and April 11, 2017 (Doc. 10), and denied as moot Plaintiff's request for injunctive relief (Count 4), including his request to vacate the Trustee's Sale, because it already occurred on February 21, 2017, and Plaintiff served the Complaint on Defendant in this matter three days later, on February 24, 2017. See A.R.S. § 33-811(C) (providing trustor waives all defenses and objections to trustee's sale if injunction not obtained prior to sale).

         Defendant now moves to dismiss Plaintiff's claims under Federal Rule of Civil Procedure 12(b)(6) and to quash the lis pendens on the property.

         II. LEGAL STANDARD

         Rule 12(b)(6) is designed to “test[ ] the legal sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). To survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint must contain more than “labels and conclusions” or a “formulaic recitation of the elements of a cause of action”; it must contain factual allegations sufficient to “raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). While “a complaint need not contain detailed factual allegations [] it must plead ‘enough facts to state a claim to relief that is plausible on its face.'” Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1022 (9th Cir. 2008) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). The plausibility standard “asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.

         When analyzing a complaint for failure to state a claim under Rule 12(b)(6), “[a]ll allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party.” Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir. 1996). However, legal conclusions couched as factual allegations are not given a presumption of truthfulness, and “conclusory allegations of law and unwarranted inferences are not sufficient to defeat a motion to dismiss.” Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998).

         In ruling upon a motion to dismiss, the court may consider only the complaint, any exhibits thereto, and matters which may be judicially noticed pursuant to Federal Rule of Evidence 201. See Mir v. Little Co. of Mary Hospital, 844 F.2d 646, 649 (9th Cir. 1988); Isuzu Motors Ltd. v. Consumers Union of United States, Inc., 12 F.Supp.2d 1035, 1042 (C.D. Cal. 1998). The court may take judicial notice of facts “not subject to reasonable dispute” because they are either: “(1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201; see also Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (noting that the court may take judicial notice of undisputed “matters of public record”). The court may disregard allegations in a complaint that are contradicted by matters properly subject to judicial notice. Daniels- Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010).

         III. ANALYSIS

         A. Counts 1 and 3 - FDCPA

         The Court finds it nearly impossible to discern from the Complaint how Plaintiff believes Defendant violated the FDCPA because the allegations contained in Counts 1 and 3 are anything but the “plain statement of the claim showing ...


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