McIntosh v. Wells Fargo Bank, N.A.
| Decision Date | 19 November 2012 |
| Docket Number | No. CV-12-01218-PHX-GMS,CV-12-01218-PHX-GMS |
| Court | U.S. District Court — District of Arizona |
| Parties | Wayne McIntosh Plaintiff, v. Wells Fargo Bank, N.A., Citibank N.A. Defendants. |
Pending before the Court are several motions relating to this case. Defendants Wells Fargo Bank, N.A., and Citibank N.A. have filed a Motion to Dismiss the Amended Complaint (Doc. 12), an unopposed Motion to Transfer Bond from Superior Court (Doc. 14), and a Motion for Ruling (Doc. 17). In response, Plaintiff Wayne McIntosh has filed a Motion to Maintain Temporary Restraining Order (Doc. 15), two Motions for Summary Judgment (Docs. 15, 23), and a Motion for Contempt (Doc. 22). Defendants have filed a Motion to Strike McIntosh's Motion for Summary Judgment. (Doc. 27.) For the following reasons, Defendants' Motion to Dismiss is granted in part and denied in part, McIntosh's Motion for Contempt is denied, the Motion to Maintain the Temporary Restraining Order is denied as moot because the TRO has expired, the Motion to Transfer Bond is denied as moot, the Motions for Summary Judgment are denied, and the Motions to Strike and for a Ruling are denied as moot.
In January of 2007 Plaintiff Wayne McIntosh executed a Deed of Trust ("DOT") for property located at 4901 East Butler Drive in Paradise Valley, Arizona ("the Property") in connection with a loan for $1,300,000.00. (Doc. 12-1, Ex. B at 6-7.)1 The DOT listed UBS AG Tampa Branch as the "Lender," Fidelity National Title as "Trustee," and Mortgage Electronic Registration Systems, Inc. ("MERS") as "beneficiary." (Id.)
On March 24, 2008, MERS assigned its beneficial interest to U.S. Bank, N.A., as Trustee for MARM 2007-HFI. (Doc. 12-1, Ex. C.) That same day, U.S. Bank exercised its rights as beneficiary and appointed Mark S. Bosco as Substitute Trustee. (Id., Ex. D.) Bosco then filed a Notice of Trustee Sale. (Id., Ex. E.) Just under four months later, on July 15, 2008, Bosco cancelled the sale. (Id., Ex. F.) Effective November 11, 2008, U.S. Bank transferred its beneficial interest back to MERS. (Id., Ex. G.) MERS then appointed First American Title Insurance Company ("First American") as trustee, replacing Bosco. (Id. , Ex. I.) On November 12, 2008, First American noticed a Trustee Sale of the Property (id., Ex. J), which has been continued indefinitely. On March 26, 2010, MERS assigned its beneficial interest to Citibank, N.A. as "Trustee for MASTR Adjustable Rate Mortgages Trust 2007 HF1, Mortgage Pass-Through Certificates, Series 2007-HF1." (Id., Ex. H.) It appears America's Servicing Co., which belongs to Defendant Wells Fargo, is servicing McIntosh's mortgage. (Doc. 1-1 at 3.)
McIntosh filed for bankruptcy in 2011, and in connection with his bankruptcy was informed that he had to obtain Citibank's approval for a plan restructuring his mortgage. (Doc. 18). McIntosh reached out to Citibank, and eventually received a letter from Stephen M. Smith, allegedly Citibank's general counsel. (Doc. 15 at 3.) Smith stated that he was responding on behalf of Vikram Pandit, CEO of Citibank, to address McIntosh's "suggestions for helping seniors affected by the foreclosure crisis." (Id.) McIntosh had sent the letter to Citibank in an apparent attempt to gain approval for his loan restructuring under bankruptcy. Smith's letter, however, stated (Id.)
McIntosh responded by apparently sending Citibank a $5.00 check and a quitclaim deed for the property, which Citibank returned with a note stating that it could not cash the check "Due to You [sic] Account Has Been Paid in Full." (Doc. 18-1.)
Defendants removed to this Court on June 7, 2012. (Doc. 1.) The Defendants filed a Motion to Dismiss and a Motion to Dissolve the TRO on June 21, 2012. This Courtdenied the Motion to Dissolve the TRO on August 31, 2012. Defendants have also filed a Motion to Transfer Bond from Superior Court. In the meantime, McIntosh filed a Motion to Maintain the TRO and Motion for Summary Judgment. After McIntosh did not respond to the Motion to Dismiss, Defendants filed a Motion for Ruling. The Court ordered McIntosh to respond to the Motion to Dismiss, and he did. He also filed a Motion for Summary Judgment and a Motion for Sanctions, which led Defendants to file a Motion to Strike the Motion for Summary Judgment. The Court grants in part and denies in part the Motion to Dismiss, denies the Motion for Sanctions, recognizes the dissolution of the TRO, and denies McIntosh's Motions for Summary Judgment.
To survive dismissal for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint must contain more than "labels and conclusions" or a "formulaic recitation of the elements of a cause of action;" it 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). While "a complaint need not contain detailed factual allegations . . . it must plead 'enough facts to state a claim to relief that is plausible on its face.'" Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1022 (9th Cir. 2008) (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Igbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). The plausibility standard "asks for more than a sheer possibility that a defendant has acted unlawfully." Id. When a complaint does not "permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not shown—that the pleader is entitled to relief." Id. at 679 (internal quotation omitted). The Ninth Circuit "construe[s] pro se pleadings liberally on a defendant's motion to dismiss for failure to state a claim." Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002).
When analyzing a complaint for failure to state a claim under Rule 12(b)(6), "[a]ll allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party." Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir. 1996). However, legal conclusions couched as factual allegations are not given a presumption of truthfulness, and "conclusory allegations of law and unwarranted inferences are not sufficient to defeat a motion to dismiss." Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). On a motion to dismiss, the court may consider only allegations contained in the pleadings and documents referred to in the complaint. Colony Cove Props., LLC v. City of Carson, 640 F.3d 948, 955 (9th Cir. 2011); Hal Roach Studios, Inc. v. Richard Feiner and Co., Inc, 896 F.2d 1542, 1555 n.19 (9th Cir. 1990) ().
McIntosh's complaint refers to a quiet title action, but he appears to assert the action of wrongful foreclosure. Either way, the Court cannot say that McIntosh's Amended Complaint fails to state a claim for wrongful foreclosure.
McIntosh's allegations support a quiet title action. A.R.S. § 12-1101 provides that "[a]n action to determine and quiet title to real property may be brought by anyone having or claiming an interest therein, whether in or out of possession, against any person or the state when such person or the state claims an estate or interest in the real property which is adverse to the party bringing the action." Under long-established Arizona law, however, a plaintiff cannot bring a quiet title action unless he has paid off her mortgage in full. Farrell v. West, 57 Ariz. 490, 491, 114 P.2d 910, 911 (1941) (); Eason v. Indymac Bank, CV 09-1423-PHX-JAT 2010 WL 1962309, at *2 (D. Ariz. May14, 2010) (); Frazer v. Millennium Bank, 2:10-cv-01509 JWS 2010 WL 4579799, at *4 (D. Ariz. Oct.29, 2010) (same). Defendants contend that McIntosh's quiet title claim fails because he failed to allege that he owes no balance on his mortgage. Focusing on the absence of a specific series of words ignores the nature of McIntosh's claim—Citibank told him that his account was paid in full and that it did not have an interest in his loan. These allegations meet the standard necessary to proceed on a quiet title action. See Bergdale v. Countrywide Bank FSB, CV-12-8057-PCT-GMS, 2012 WL 4120482 (D. Ariz. Sept. 18,...
To continue reading
Request your trial