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Hanks v. Harper

United States District Court, D. Arizona

December 10, 2019

Bob L Hanks, Plaintiff,
v.
Christina Harper, et al., Defendants.

          ORDER

          Douglas L. Rayes United States District Judge.

         Before the Court is Bank of America, N.A.'s (“BOA”) motion to dismiss (Docs. 10, 40)[1], U.S. Bank Trust, N.A.'s and LSF9 Master Participation Trust by Caliber Home Loans, Inc.'s, (referred to collectively as “Caliber Defendants”) motion to dismiss (Docs. 16, 33, 42), and First American Financial Corporation's (“First American”) motion to dismiss (Docs. 21, 36, 37), all of which are fully briefed. For the following reasons, the three motions are granted.

         I. Background

         On May 31, 2006, Carl Greiner[2] obtained a loan for $216, 000 secured by a Deed of Trust. (Doc. 10-1 at 4-17.) The Deed of Trust was recorded on July 10, 2006 with the legal description omitted. (Id.) On June 24, 2010, Mr. Greiner obtained a bankruptcy discharge under 11 U.S.C. § 727. (Doc. 10-2 at 8.) On January 10, 2012, First American Title Insurance Company (“FA”) filed an Affidavit of Scrivener's Error, noting that the legal description on the Deed of Trust securing Mr. Greiner's $216, 000 loan had been inadvertently omitted and providing the legal description as follows:

LOT 112, OF PALM LANE VILLAGE, ACCORDING TO THE PLAT OF RECORD IN THE OFFICE OF THE COUNTY RECORDER OF MARICOPA COUNTY, ARIZONA, IN BOOK 142 OF MAPS, PAGE 22.[3]

(Doc. 10-1 at 26-27.) In early 2012, Mr. Greiner defaulted on his loan, and a notice of trustee sale on Lot 112 was recorded on May 8, 2012. (Id. at 37.) On January 16, 2013, Reconstruct Company, N.A., the successor trustee, filed a notice of cancellation of trustee sale. (Id. at 40.)

         In 2013 and 2014, Mr. Greiner quitclaimed his interest in Lot 112 to Pine Valley Land Trust (“Pine Valley”), which soon quitclaimed its interest to Ameron National Trust (“Ameron National”), whose sole interest holder and Trustee is Plaintiff. (Id. at 42; Doc. 10-2 at 2; Doc. 21 at 6.) On October 22, 2014, Ameron National filed a request for a temporary restraining order in Maricopa County Superior Court to halt a trustee sale on Lot 112 scheduled for October 24, 2014 and find the Deed of Trust invalid. (Doc. 21-1 at 2.) The trial court determined that the Deed of Trust was valid and the scrivener's error could not have caused any harm to Ameron or its privies, which the Court of Appeals affirmed.[4] (Id. at 53-64.) The Supreme Court of Arizona denied the Petition for Review and refused to accept any more pleadings or documents in the matter. (Id. at 85-88.)

         The Caliber Defendants obtained the Deed of Trust by assignment on August 10, 2016. (Doc. 16-1.) On November 8, 2018, Christina Harper, the Trustee under the Deed of Trust, recorded a notice of trustee sale on Lot 112. (Doc. 10-2 at 15-16.) On February 6, 2019, Ameron National quitclaimed its interest to Plaintiff. (Doc. 1-3 at 81.) Plaintiff commenced this action two days later by filing a complaint with claims for fraud, slander of title, unjust enrichment, quiet title, and declaratory judgment in the Maricopa County Superior Court. (Doc. 1-3.) Lot 112 was sold at public auction on February 14, 2019 to LSF9 Master Participation Trust (“LSF9”).

         The action was removed to this Court on May 16, 2019. (Doc. 1.) On May 23, 2019, BOA filed its motion to dismiss. (Doc. 10.) The same day, Caliber Defendants filed their motion to dismiss on behalf of themselves and Trustee Christina Harper. (Doc. 16.) On May 28, 2019, First American filed its motion to dismiss. (Doc. 21.) The motions are now ripe.

         II. Legal Standard

         To survive dismissal for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint 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). The task when ruling on a motion to dismiss “is to evaluate whether the claims alleged [plausibly] can be asserted as a matter of law.” See Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). When analyzing the sufficiency of a complaint, the well-pled factual allegations are taken as true and construed in the light most favorable to the plaintiff. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). However, legal conclusions couched as factual allegations are not entitled to the assumption of truth, Iqbal, 556 U.S. at 680, 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 Cir. 2008).

         III. Discussion

         A. Fraud

         In his complaint, Plaintiff asserts a claim for fraudulent concealment against “Defendants, ” explaining that the encumbrances on Lot 112 were fraudulently concealed from him at the time that he received the quit claim deed. (Doc. 1-3 at 11-12.) In order to plead a fraudulent concealment claim, Plaintiff must allege facts supporting “(1) the concealment of a material existing fact that in equity and good conscience should be disclosed; (2) knowledge on the part of the party against whom the claim is asserted that such a fact is being concealed; (3) ignorance of the fact on the part of the one from whom the fact is concealed; ...


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