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Kopec v. Wells Fargo Bank NA

United States District Court, D. Arizona

September 4, 2018

Bjorg Kopec, Plaintiff,
Wells Fargo Bank NA, Defendant.



         At 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).

         As a 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).

         I. BACKGROUND

         In 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.[1] 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.[2] 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.

         In June 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.

         When 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.

         On July 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.


         A. Motion to Dismiss

         A 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)).

         B. Motion for Temporary Restraining Order

         To 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)).

         III. ...

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