United States District Court, D. Arizona
Honorable John J. Tuchi United States District Judge
issue is Defendants The Bank of New York Mellon f/k/a the
Bank of New York as Successor in Interest to JP Morgan Chase
Bank, N.A. Solely in its Capacity as Trustee for the
Structured Asset Mortgage Investments II Trust 2006-AR8
Mortgage Pass-Through Certificates Series 2006-AR8 and
Structured Asset Mortgage Investments II, Inc.'s Motion
to Dismiss Plaintiff's Complaint (Doc. 19, MTD), to which
Plaintiff Steven Paul Nickolas filed a Response (Doc. 26,
Resp.) and concurrent Motion for Leave to File First Amended
Complaint (Doc. 25, MTA). In this Order, the Court will also
resolve Plaintiff's Application for Temporary Restraining
Order, Preliminary and Permanent Injunctions (Doc. 31). No
party requested oral argument for these matters, nor did the
Court deem it necessary to resolve the pending Motions.
See LRCiv 7.2(f).
begin with, Defendants did not oppose Plaintiff's Motion
to Amend, so Plaintiff would ordinarily be entitled to
summary disposition of that Motion. See LRCiv
7.2(i). However, Plaintiff's Response to Defendants'
prior-filed Motion to Dismiss fails to meet any of the
arguments in Defendants' Motion except for
Defendants' request for the Court to dismiss this case on
res judicata grounds. To the extent Defendants argue
that Plaintiff fails to state a claim, Plaintiff simply
states that the “First Amended Complaint contains
sufficient factual matter that, when accepted as true and
viewed in the light most favorable to the nonmoving party,
‘states a claim of relief that is plausible on its
face.'” (Resp. at 2-3.) This is simply a statement
of the motion to dismiss standard and not a substantive
argument as to why Defendants' grounds for dismissal of
Plaintiff's claim lack merit. As a result of
Plaintiff's failure to meet Defendants' arguments,
the Court would also find that Defendants are entitled to
summary disposition of their Motion to Dismiss for failure to
state a claim. See LRCiv 7.2(i). The Court has
neither the obligation nor capacity to examine the Complaint
or Proposed First Amended Complaint and make Plaintiff's
arguments against dismissal on behalf of Plaintiff. See,
e.g., F.D.I.C. v. Garner, 126 F.3d 1138, 1145
(9th Cir. 1997) (finding that the court may conclude that a
party that presents no applicable case law in support of an
argument waives it); Pelfresne v. Village of Williams
Bay, 917 F.2d 1017, 1023 (7th Cir. 1990) (“A
litigant who fails to press a point by supporting it with
pertinent authority, or by showing why it is sound despite a
lack of supporting authority or in the face of contrary
authority, forfeits the point. We will not do his research
for him.” (internal quotations omitted)).
Court will nonetheless examine Defendants' arguments for
dismissal of Plaintiff's claims for failure to state a
claim, albeit in the absence of any counterargument from
Plaintiff. The Court will also consider Defendants'
contention that Plaintiff's claim is barred by the
doctrine of res judicata.
to the Proposed First Amended Complaint (Doc. 25-1, PFAC) and
the judicially-noticed documents in the public record or
central to Plaintiff's allegations (Doc. 20), in
2006, Plaintiff obtained a loan for $896, 500 through a Note
and secured by a Deed of Trust against real property in
Scottsdale, Arizona. The Deed of Trust states:
The Note or a partial interest in the Note (together with
this Security Instrument) can be sold one or more times
without prior notice to Borrower. A Sale might result in a
change in the entity (known as the “Loan
Servicer”) that collects Periodic Payments due under
the Note and this Security Instrument and performs other
mortgage loan servicing obligations under the Note, this
Security Instrument, and Applicable Law. There also might be
one or more changes of the Loan Servicer unrelated to a sale
of the Note.
(Doc. 20 Ex. 1.) Countrywide Bank, N.A. was the lender and
Mortgage Electronic Registration Systems, Inc.
(“MERS”) was the beneficiary and “nominee
for the lender and the lender's successors and
assigns” under the terms of the Deed of Trust. (Doc. 20
originated, the loan was deposited in a securitized
trust-Plaintiff alleges wrongly-by Defendant Structured Asset
Mortgage Investments II Inc. (“SAMI”) The
judicially-noticed property records proffered by Defendants
show that, in August 2009, MERS assigned all beneficial
interest and rights under the Deed of Trust to Defendant The
Bank of New York Mellon f/k/a the Bank of New York as
Successor in Interest to JP Morgan Chase Bank, N.A. Solely in
its Capacity as Trustee for the Structured Asset Mortgage
Investments II Trust 2006-AR8 Mortgage Pass-Through
Certificates Series 2006-AR8 (“BNYM”), and BNYM
substituted ReconTrust Company, N.A. as successor trustee.
(Doc. 20 Exs. 2-3.)
2009, Plaintiff defaulted on the loan and ReconTrust recorded
a Notice of Trustee's Sale but, after Plaintiff received
a permanent loan modification, the sale was cancelled in
January 2010. (Doc. 20 Exs. 4-6.) In 2012, Plaintiff
defaulted on the loan again, and ReconTrust recorded a Notice
of Trustee's Sale for a sale to take place in July 2012.
In a prior lawsuit, Plaintiff filed suit against BNYM's
trust,  MERS, and other parties on June 28, 2012.
(Case No. 2:12-cv-01922-ROS.) During the pendency of that
litigation, BNYM substituted Quality Loan Service Corporation
(“Quality”) as trustee. (Doc. 20 Ex. 10.) In
March 2015, Plaintiff stipulated to dismiss the case with
prejudice. (Doc. 20 Exs. 25, 26.) Around the same time,
Quality recorded a Notice of Trustee's Sale for a sale to
take place in April 2015, which was eventually cancelled.
(Doc. 20 Exs. 11, 13.)
2015, Plaintiff filed for Chapter 13 bankruptcy protection.
(Case No. 2:15-bk-09321-BKM.) In the bankruptcy proceeding,
Plaintiff filed an adversary proceeding (Case No.
2:16-ap-00060-BKM) alleging, as he does in this lawsuit, that
the assignments of interest and rights under the Deed of
Trust were wrongful and that BNYM lacked standing to
foreclose. (Doc. 20 Exs. 28-30.) Plaintiff voluntarily
dismissed the bankruptcy and adversary proceedings in
December 2016 and filed the present case in April 2017. (Doc.
1, Comp.; Doc. 20 Exs. 28, 29.)
PFAC, Plaintiff seeks declaratory relief in the form of a
determination whether BNYM holds the Note or Deed of Trust on
Plaintiff's residence such that it has a right to enforce
a claim against the residence by way of a foreclosure action.
(PFAC ¶ 32.) Defendant moves to dismiss Plaintiff's
claim under Federal Rule of Civil Procedure 12(b)(6) both
because it is barred by the doctrine of res judicata
and because Plaintiff fails to state a claim as a matter of
complaint must include “only ‘a short and plain
statement of the claim showing that the pleader is entitled
to relief,' in order to ‘give the defendant 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)); see also Fed. R. Civ. P.
8(a). A dismissal under Rule 12(b)(6) for failure to state a
claim can be based on either (1) the lack of a cognizable
legal theory or (2) insufficient facts to support a
cognizable legal claim. Balistreri v. Pacifica Police
Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
“While a complaint attacked by a Rule 12(b)(6) motion
does not need detailed factual allegations, a plaintiff's
obligation to provide the ‘grounds' of his
‘entitle[ment] to relief' requires more than labels
and conclusions, and a formulaic recitation of the elements
of a cause of action will not do.” Twombly,
550 U.S. at 555 (citations omitted). The complaint must thus
contain “sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,