United States District Court, D. Arizona
J. TUCHI UNITED STATES DISTRICT JUDGE
issue are Defendant Wells Fargo Bank NA's Motion to
Dismiss (Doc. 7); and pro se Plaintiff Bjorg
Kopec's Motion for Temporary Restraining Order (Doc. 11),
to which Defendant filed a Response (Doc. 14).
threshold matter, the Court notes that it entered an Order
(Doc. 10) advising Plaintiff that she was required to file a
Response to Defendant's Motion to Dismiss by August 31,
2018, and failure to do so could result in dismissal of her
case. Plaintiff failed to file a Response, and Defendant is
thus eligible for summary disposition of its Motion to
Dismiss. See LRCiv 7.2(i). Considering
Plaintiff's pro se status, the Court will
nonetheless consider Plaintiff's Motion for Temporary
Restraining Order (Doc. 11), filed August 30, 2018, at the
same time the Court addresses Defendant's Motion to
Dismiss. The Court will resolve the pending Motions without
oral argument. See LRCiv 7.2(f).
October 2006, Plaintiff obtained a Loan for $280, 250.00 from
Defendant secured by a Deed of Trust on real property
(“Property”) in Mesa, Arizona. Defendant
assigned the Loan to Deutsche Bank National Trust Company but
remained the loan servicer. In March 2014, a Trustee's
Sale was noticed after Plaintiff defaulted on the Loan. The
sale did not take place, however, and Plaintiff filed for
Chapter 13 bankruptcy protection in January
2015. In March 2016, during the course of her
bankruptcy proceedings, Plaintiff entered into a Loan
Modification Agreement with Deutsche Bank. Plaintiff
defaulted on the Loan Modification Agreement in October 2016.
2017, Deutsche Bank moved the Bankruptcy Court for relief
from the automatic stay to foreclose on the Property. The
parties, including Plaintiff, stipulated to an Order
providing for a plan for Plaintiff to make payments under the
Loan. The Order also provided that Deutsche Bank could not
hold a Trustee's Sale on the Property unless Plaintiff
again defaulted and then failed to cure the default within 15
days of written notice of default.
Plaintiff defaulted again, Deutsche Bank provided written
notice of default to Plaintiff in March 2018. The Bankruptcy
Court entered an Order lifting the automatic stay due to
Plaintiff's failure to comply with the terms of the
Stipulated Order and stating that Deutsche Bank may exercise
its rights in the Property. Defendant, as loan servicer,
recorded a Notice of Trustee's Sale for a sale of the
Property on September 5, 2018.
12, 2018, Plaintiff filed suit against Defendant in Arizona
state court, and Plaintiff filed a motion for a Temporary
Restraining Order, which the state court denied. (Doc. 1-4 at
10.) Defendant then removed the action to this Court. (Doc.
1.) In the Complaint (Doc. 1-2), Plaintiff raises three
claims against Defendant: (1) negligence; (2) slander of
title; and (3) wrongful foreclosure. Defendant has moved to
dismiss Plaintiff's claims, and Plaintiff has again moved
for a Temporary Restraining Order in an attempt to stop the
scheduled Trustee's Sale.
Motion to Dismiss
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 Federal Rule of Civil Procedure
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 (1974)).
Motion for Temporary Restraining Order
obtain preliminary injunctive relief, Plaintiff must show
that “(1) she is likely to succeed on the merits, (2)
she is likely to suffer irreparable harm in the absence of
preliminary relief, (3) the balance of equities tips in her
favor, and (4) an injunction is in the public
interest.” Garcia v. Google, Inc., 786 F.3d
733, 740 (9th Cir. 2015) (citing Winter v. Nat. Res. Def.
Council, Inc., 555 U.S. 7, 20 (2008)). The Ninth Circuit
Court of Appeals, employing a sliding scale analysis, has
also stated that “‘serious questions going to the
merits' and a hardship balance that tips sharply toward
the plaintiff can support issuance of an injunction, assuming
the other two elements of the Winter test are also
met.” Drakes Bay Oyster Co. v. Jewell, 747
F.3d 1073, 1078 (9th Cir. 2013) cert. denied, 134
S.Ct. 2877 (2014) (quoting Alliance for the Wild Rockies
v. Cottrell, 632 F.3d 1127, 1132 (9th Cir. 2011)).