United States District Court, D. Arizona
Cherie A. Fishburne, Plaintiff,
CitiMortgage Incorporated, et al., Defendants.
HONORABLE JOHN J. TUCHI UNITED STATES DISTRICT JUDGE
issue are Defendants Tiffany & Bosco, P.A. and Leonard J.
McDonald’s (collectively, “Bosco
Defendants”) Motion to Dismiss (Doc. 18), to which
pro se Plaintiff Cherie A. Fishburne filed a
Response (Doc. 36), and Bosco Defendants filed a Reply (Doc.
40); Defendant CitiMortgage Inc.’s (“CMI”)
Motion to Dismiss (Doc. 19), to which Plaintiff filed a
Response (Doc. 31), and CMI filed a Reply (Doc. 41); and
Defendants S. Matt Collins, Carrie Collins, David LaSpaluto,
and Sarah Sabalos-LaSpaluto’s (collectively,
“Attorney Defendants”) Motion to Dismiss (Doc.
23), to which Plaintiff filed a Response (Doc. 37), and
Attorney Defendants filed a Reply (Doc. 42). The Court
resolves these Motions without oral argument. See
January 19, 2007, Plaintiff took out a loan for $645, 750
from CMI’s predecessor, ABN AMRO (“Loan”),
secured by a Deed of Trust on property located at 12054 West
Skinner Drive, Peoria, Arizona 85383 (the
“Property”). The Deed of Trust was not recorded.
The purpose of the Loan was to pay off a purchase money loan
Plaintiff had taken out in 2006, and the release of the
purchase money loan as a result of the 2007 Loan was
recorded. Plaintiff filed a voluntary petition for Chapter 13
bankruptcy on October 14, 2009. In the bankruptcy
proceedings, Plaintiff asserted that the Loan was secured by
the Deed of Trust on the Property. CMI submitted a claim
under the Loan and Deed of Trust, and Plaintiff did not
object or otherwise raise any claims against CMI. The
Bankruptcy Court confirmed a Chapter 13 Plan on July 15,
February 16, 2017, CMI filed suit against Plaintiff in
Arizona state court, seeking a declaration that the Deed of
Trust, although not recorded, constitutes a valid encumbrance
on the Property and that Plaintiff is estopped from
challenging its validity. Mr. LaSpaluto and Mr. Collins were
counsel for CMI in the lawsuit. The state court granted
summary judgment for CMI and entered Judgment on July 18,
2018. Plaintiff did not appeal, but she filed a motion for
reconsideration about six months later. On December 31, 2018,
the state court judge denied the motion and subsequently
denied Plaintiff’s Temporary Restraining Order request,
which sought to avoid a pending foreclosure of the Deed of
Defendants are the trustee under the Deed of Trust and are
attempting to perform a non-judicial foreclosure on the
Property. They took no part in the state court action.
January 9, 2019, Plaintiff filed a Chapter 7 bankruptcy
petition, which she alleges she was forced to do to
automatically stay “Defendant’s illegal
non-judicial foreclosure action.” (Doc. 1, Compl.
¶ 44.) She then filed the present lawsuit on January 15,
2019, raising eleven claims against Defendants: (1) recording
false documents in violation of A.R.S. §§ 33-420(A)
and (B); (2) violation of the Fair Debt Collection Practices
Act, 15 U.S.C. § 1692(e) (“FDCPA”); (3)
declaratory and injunctive relief under 28 U.S.C. § 2201
and A.R.S. § 33-801; (4) breach of fiduciary duties; (5)
fraudulent concealment; (6) civil conspiracy; (7) fraudulent
misrepresentation; (8) conversion; (9) quiet title; (10)
unjust enrichment; and (11) wrongful foreclosure. The Court
denied Plaintiff’s request for a Preliminary Injunction
on March 8, 2019. (Doc. 32.) Defendants now move to dismiss
all claims against them.
analyzing a complaint for failure to state a claim for relief
under Federal Rule of Civil Procedure 12(b)(6), the well-pled
factual allegations are taken as true and construed in the
light most favorable to the nonmoving party. Cousins v.
Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). Legal
conclusions couched as factual allegations are not entitled
to the assumption of truth, Ashcroft v. Iqbal, 556
U.S. 662, 680 (2009), and therefore are insufficient to
defeat a motion to dismiss for failure to state a claim.
In re Cutera Sec. Litig., 610 F.3d 1103, 1108 (9th
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,
678 (2009) (quoting Twombly, 550 U.S. at 570).
“[A] well-pleaded complaint may proceed even if it
strikes a savvy judge that actual proof of those facts is
improbable, and that ‘recovery is very remote and
unlikely.’” Twombly, 550 U.S. at 556
(quoting Scheuer v. Rhodes, 416 U.S. 232, 236
Plaintiff’s claims in this lawsuit are premised on the
proposition that Defendants did not have a valid, enforceable
Deed of Trust on the Property-a proposition that the state
court has already rejected in a final Judgment. To begin
with, Plaintiff is judicially estopped from claiming to this
Court that the Deed of Trust is not valid and enforceable by
her representations in her Chapter 13 proceedings in United
States Bankruptcy Court in 2009 and 2010.
estoppel-“an equitable doctrine invoked by a court at
its discretion”- exists to protect the integrity of the
judicial process by “prohibiting parties from
deliberately changing positions according to the
exigencies of the moment.” New Hampshire v.
Maine, 532 U.S. 742, 749–50 (2001) (citations and
internal quotation marks omitted). “[W]here a party
assumes a certain position in a legal proceeding, and
succeeds in maintaining that position, he may not thereafter,
simply because his interests have changed, assume a contrary
position.” New Hampshire, 532 U.S. at 749
(citations and internal quotation marks omitted). The
application of judicial estoppel is appropriate to ...