United States District Court, D. Arizona
Quentin R Tezak Irrevocable Living Trust April 11th 2014, Plaintiff,
JPMorgan Chase Bank, et al., Defendants.
A. Teilborg Senior United States District Judge.
before the Court is Defendant JP Morgan Chase Bank's
(“Chase”) Motion to Dismiss (Doc. 7) pursuant to
Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which
relief can be granted. The Court has jurisdiction over this
matter pursuant to 28 U.S.C. §§ 1332, 1441. The
Court now rules on this Motion.
approximately August 29, 2007, Betty Tezak and Q. Robert
Tezak (“Q. Tezak”) obtained a loan for $300, 000
from Chase. (Doc. 7-1 at 2). This loan was secured by a Deed
of Trust dated August 29, 2007, which was recorded in the
official records of Maricopa County, Arizona at Instrument
No. 2007-1155926 as a lien against the property at 2340 S.
Standage, Mesa, Arizona, 85202-6615 (“Property”).
(Doc. 7-1 at 2-11 (copy of the Deed of Trust)). On April 11,
2014, Q. Tezak quitclaimed the Property to the Quentin R.
Tezak Irrevocable Trust dated April 9, 2014
(“Trust”). (Doc. 7-1 at 13-14 (Quitclaim Deed)).
This Quitclaim Deed was recorded in the official records of
Maricopa County, Arizona at Instrument No. 2014-0437583.
Q. Tezak passed away on February 23, 2015, (Doc. 7-1 at 16;
see 2:18-bk-07636-EPB, Doc. 23-1 at 22), a Chapter 7
bankruptcy case was filed in Q. Tezak's name on June 28,
2018, (Doc. 7 at 2; see 2:18-bk-07636-EPB, Doc. 1).
The Bankruptcy Court dismissed the bankruptcy action on July
6, 2018. (Id.; see 2:18-bk-07636-EPB, Doc.
1). On or about July 19, 2018, the trustee under the Deed of
Trust, Quality Loan Service Corp. (“Quality
Loan”), recorded a Notice of Trustee's Sale. (Doc.
7-1 at 18-20 (Instrument No. 2018-0552397)). Thereafter, on
August 13, 2018, Chase moved to re-open the Bankruptcy action
to seek in rem relief from the automatic stay so
that Chase could proceed with enforcement efforts against the
Property. (Doc. 7 at 3; see 2:18-bk-07636, Doc. 23).
reinstating the Bankruptcy on September 17, 2018, (Doc. 7 at
3; see 2:18-bk-07636, Doc. 29), the Bankruptcy Court
granted Chase in rem stay relief after finding that
the filing of the Bankruptcy petition “was part of a
scheme to delay, hinder, and defraud Chase in an attempt to
prevent Chase from conducting a foreclosure of the real
property located at 2340 South Standage, Mesa, Arizona,
85202[, ]” (Doc. 7 at 3; see 2:18-bk-07636,
Doc. 38 at 1). The Bankruptcy Court explicitly ordered that
Chase could “enforce its valid legal rights and
remedies with respect to the Property, including, without
limitation, to conduct and complete a foreclosure sale of the
Property.” (Doc. 7 at 3; see 2:18-bk-07636,
Doc. 38 at 2). On October 24, 2018, Quality Loan sold the
Property at a trustee's sale to a third-party. (Docs. 7
at 3; 7-1 at 22-24 (Trustee's Deed Upon Sale, Instrument
October 24, 2018, the same day that the trustee's sale
was completed, Plaintiff Quentin R Tezak Irrevocable Living
Trust (“Plaintiff”) filed a quiet title action by
and through Robert J. Tezak, its sole trustee, in Maricopa
County Superior Court. (Doc. 1-3 at 3-13). Plaintiff's
civil action names two Defendants: Chase, the lender, and
Quality Loan, the trustee under the Deed of Trust.
(Id. at 3, 8). Chase received a copy of the Summons
and Complaint for this civil action on or about October 31,
2018. (Doc. 1 ¶ 3). There is no indication that
Defendant Quality Loan has been served. On November 19,
2018, Chase filed a Notice of Removal (Doc. 1), stating that
removal is proper under 28 U.SC. § 1332. (Doc. 1 ¶
November 20, 2018, Chase filed a Motion to Dismiss (Doc. 7)
(hereinafter, “Motion”) pursuant to Fed.R.Civ.P.
12(b)(6) for failure to state a claim upon which relief can
be granted. After the time for responding to this Motion had
expired, the Court cautioned Plaintiff in an Order dated
December 19, 2018 that if no response was filed by December
28, 2018, the Court would deem the failure to respond to be
consent to the Motion to Dismiss being granted pursuant to
LRCiv 7.2(i). (Doc. 10). On December 28, 2018, Plaintiff
filed a one-page Response to the Motion to Dismiss (Doc. 11),
stating only that: “[t]he signatures of Quentin and
Betty Tezak are forged[.] [W]e can provide the actual
signatures of Quentin and Betty Tezak.” (Doc. 11 at 1).
Thereafter, Plaintiff filed an Amended Response to
Defendant's Motion to Dismiss (Doc. 13) (hereinafter,
“Amended Response”) on January 8, 2019.
January 9, 2019, Chase filed a Reply in Support of its Motion
to Dismiss (Doc. 12). Then, on January 16, 2019, Chase filed
a Motion to Strike Amended Response to Motion to Dismiss, or,
in the Alternative, Motion for Leave to File Reply to Amended
Response (Doc. 14). In an Order dated January 18, 2019, the
Court denied Chase's Motion to Strike Plaintiff's
Amended Response, but granted Chase leave to file a Reply to
Plaintiff's Amended Response. (Doc. 15 at 3). Defendant
filed its Reply to Plaintiff's Amended Response (Doc. 16)
on January 25, 2019.
has moved to dismiss Plaintiff's Complaint for failure to
state a claim upon which relief can be granted pursuant to
Fed.R.Civ.P. 12(b)(6). (Doc. 7). Under Rule 12(b)(6), a
motion to dismiss should not be granted “unless it
appears beyond doubt that the plaintiff can prove no set of
facts in support of his claims which would entitle him to
relief.” Barnett v. Centoni, 31 F.3d 813, 816
(9th Cir. 1994) (citation omitted). “Dismissal can be
based on the lack of a cognizable legal theory or the absence
of sufficient facts alleged under a cognizable legal
theory.” Balistreri v. Pacifica Police
Dep't, 901 F.2d 696, 699 (9th Cir. 1988) (citing
Robertson v. Dean Witter Reynolds, Inc., 749 F.2d
530, 533-34 (9th Cir. 1984)).
survive a Rule 12(b)(6) motion to dismiss, a complaint must
meet the requirements of Rule 8. Rule 8(a)(2) requires a
“short and plain statement of the claim showing that
the pleader is entitled to relief, ” so that the
defendant receives “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)). To meet
this standard, a complaint must contain sufficient factual
matter, which, if accepted as true, states a claim to relief
that is “plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Facial plausibility exists “when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. Plausibility does not
equal “probability, ” but requires “more
than a sheer possibility that a defendant has acted
unlawfully.” Id. “Determining whether a
complaint states a plausible claim for relief” is
“a context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” Id. at 679.
analyzing a complaint for failure to state a claim,
“[a]ll factual allegations made by the nonmoving party
are taken as true and construed in the light most favorable
to that party.” Iolab Corp. v. Seaboard Sur.
Co., 15 F.3d 1500, 1504 (9th Cir. 1994) (citation
omitted). However, a court need not accept as true legal
conclusions couched as factual allegations. Papasan v.
Allain, 478 U.S. 265, 286 (1986); Iqbal, 556
U.S. at 678 (“[T]he tenant that a court must accept as
true all of the allegations contained in a complaint is