Ramos v. Chase Home Fin.

• Decision Date: 25 August 2011
• Docket Number: Civil No. 11–00050 JMS/KSC.
• Citation: 810 F.Supp.2d 1125
• Parties: Alfredo RAMOS, an individual, Winnie Ramos, an individual, Plaintiffs, v. CHASE HOME FINANCE, a Business Entity, form unknown, First Magnus Financial Corporation, a Business Entity, form unknown; Charter Funding, a Business Entity, form unknown, Title Guaranty Escrow Services, Inc., a Business Entity, form unknown; Mortgage Electronic Registration Systems, Inc., a Business Entity, form unknown, Defendants.
• Court: U.S. District Court — District of Hawaii

810 F.Supp.2d 1125

Alfredo RAMOS, an individual, Winnie Ramos, an individual, Plaintiffs,

v.CHASE HOME FINANCE, a Business Entity, form unknown, First Magnus Financial Corporation, a Business Entity, form unknown; Charter Funding, a Business Entity, form unknown, Title Guaranty Escrow Services, Inc., a Business Entity, form unknown; Mortgage Electronic Registration Systems, Inc., a Business Entity, form unknown, Defendants.

Civil No. 11–00050 JMS/KSC.

United States District Court, D. Hawai‘i.

Aug. 25, 2011.

Alfredo Ramos, Kapaau, HI, pro se.

Winnie Ramos, Kapaau, HI, pro se.

Kevin W. Herring, Ashford & Wriston, Honolulu, HI, for Defendants.

ORDER (1) GRANTING DEFENDANT TITLE GUARANTY ESCROW SERVICES, INC.'S MOTION TO DISMISS COMPLAINT FILED APRIL 14, 2011 AND/OR FOR JUDGMENT ON THE PLEADINGS; (2) DISMISSING OTHER CLAIMS; AND (3) GRANTING LEAVE TO AMEND AS TO CERTAIN COUNTS

J. MICHAEL SEABRIGHT, District Judge.

I. INTRODUCTION

On April 14, 2011, Plaintiffs Alfredo and Winnie Ramos (“Plaintiffs”), proceeding pro se, filed an Amended Complaint against Defendants Chase Home Finance (“Chase”), First Magnus Financial Corporation (“First Magnus”), Charter Funding, Title Guaranty Escrow Services, Inc. (“Title Guaranty”),¹ and Mortgage Electronic Registration Systems (“MERS”). The Amended Complaint alleges federal and state law claims stemming from a November 1, 2005 mortgage transaction concerning real property located at 53–3976 South Kupa Place, Kapaau, Hawaii (the “subject property”). It seeks declaratory and injunctive relief, as well as damages and rescission of the mortgage transaction.

Title Guaranty seeks dismissal of all counts. No other party has officially appeared in the action.² For the reasons set forth below, the court GRANTS the Motion with leave to amend as to certain claims. Given obvious deficiencies as to all Defendants, certain claims are dismissed where appropriate as to all Defendants.

II. BACKGROUND

A. Factual Background

The court assumes the Amended Complaint's factual allegations are true for purposes of this Motion. See, e.g., Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n. 1 (9th Cir.2003).

According to the Amended Complaint, on November 1, 2005, Plaintiffs entered into a loan repayment and security agreement with First Magnus for $335,000. See Doc. No. 15, Am. Compl. ¶ 3. Plaintiffs' claims stem from the consummation of this transaction.

Plaintiffs assert, among other things, that (1) First Magnus qualified Plaintiffs for a loan which it knew Plaintiffs were not qualified for and could not repay, and that Plaintiffs “should have been declined for this loan,” id. ¶ ¶ 21, 24, 29; (2) First Magnus failed to verify that Plaintiffs could repay the loan; id. ¶¶ 22–24; (3) the terms of the transaction were not clear and Defendants never explained the transaction to them, id. ¶ 25; (4) the loan was more expensive than alternative financing arrangements for which Plaintiffs could have qualified, id. ¶ 21; and (5) Defendants charged excessive or illegal fees. Id. ¶ 26.

Plaintiffs assert that Defendants failed to provide forms and disclosures required under the Truth in Lending Act (“TILA”), 15 U.S.C. § 1601 et seq. ; the Equal Opportunity Credit Act; “Fair Lending/Fair Debt Collection Act”; and the Real Estate Settlement Practices Act (“RESPA”), 12 U.S.C. § 2601 et seq. Am. Compl. ¶¶ 12, 14. Defendants allegedly “intentionally concealed the negative implications of the loan they were offering,” id. ¶ 19, and “failed to perform their due diligence in investigat[ing] the legal requirements that this loan should have been processed within.” Id. ¶ 20. The misconduct was such that Plaintiffs were sold “a deceptive loan product” and the acts of deception created an illegal loan and constituted predatory lending. Id. ¶¶ 23, 28(2). ³ Defendants' acts allegedly were in violation of federal and state law, including bad faith, breach of fiduciary duty, and unfair and deceptive trade practices.

B. Procedural Background

Plaintiffs filed suit on January 21, 2011, and an Amended Complaint was filed on April 14, 2011. Plaintiffs' Amended Complaint alleges nine separate counts, entitled: (1) Declaratory Relief; (2) Injunctive Relief; (3) Contractual Breach of Implied Covenant of Good Faith and Fair Dealing; (4) Violations of TILA; (5) Violations of RESPA; (6) Rescission; (7) Unfair and Deceptive Acts and Practices (UDAP); (8) Breach of Fiduciary Duty; (9) “Unconscionability—UCC2–3202”; (10) Predatory Lending; (11) Quiet Title; and (12) “Lack of Standing; Improper Fictitious Entity.”

On June 17, 2011, Title Guaranty filed its Motion to Dismiss and/or for Judgment on the Pleadings, Doc. No. 20, seeking dismissal of all counts. The Motion was originally set for hearing on August 22, 2011, and Plaintiffs were specifically notified that an Opposition was due by August 1, 2011. Doc. No. 21. Plaintiffs also acknowledged the need for an Opposition to Title Guaranty's Motion, while appearing at a July 11, 2011 status conference before Magistrate Judge Kevin Chang. Doc. No. 24. Nevertheless, Plaintiffs did not file an Opposition. Pursuant to Local Rule 7.2(d), the court determines the Motion without a hearing.

III. STANDARDS OF REVIEW

A. Rule 12(b)(6)

Federal Rule of Civil Procedure 12(b)(6) permits a motion to dismiss a claim for “failure to state a claim upon which relief can be granted[.]”

“To survive a motion to dismiss, a complaint must 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, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)); see also Weber v. Dep't of Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir.2008). This tenet—that the court must accept as true all of the allegations contained in the complaint—“is inapplicable to legal conclusions.” Iqbal, 129 S.Ct. at 1949. Accordingly, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955). Rather, “[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.” Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). Factual allegations that only permit the court to infer “the mere possibility of misconduct” do not show that the pleader is entitled to relief. Id. at 1950.

The court liberally construes pro se pleadings. See Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir.1987). “Unless it is absolutely clear that no amendment can cure the defect ... a pro se litigant is entitled to notice of the complaint's deficiencies and an opportunity to amend prior to dismissal of the action.” Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir.1995).

The court may dismiss a complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) on its own motion. See Omar v. Sea–Land Serv., Inc., 813 F.2d 986, 991 (9th Cir.1987) (“A trial court may dismiss a claim sua sponte under [Rule] 12(b)(6). Such a dismissal may be made without notice where the claimant cannot possibly win relief.”); Ricotta v. California, 4 F.Supp.2d 961, 968 n. 7 (S.D.Cal.1998) (“The Court can dismiss a claim sua sponte for a Defendant who has not filed a motion to dismiss under Fed.R.Civ.P. 12(b)(6).”); see also Baker v. Director, U.S. Parole Comm'n, 916 F.2d 725, 727 (D.C.Cir.1990) (holding that a district court may dismiss cases sua sponte pursuant to Rule 12(b)(6) without notice where plaintiff could not prevail on complaint as alleged).

B. Federal Rule of Civil Procedure 9(b)

Federal Rule of Civil Procedure 9(b) requires that “[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.” “Rule 9(b) requires particularized allegations of the circumstances constituting fraud.” In re GlenFed, Inc. Sec. Litig., 42 F.3d 1541, 1547–48 (9th Cir.1994) (en banc) (emphasis in original), superseded on other grounds by 15 U.S.C. § 78u–4.

In their pleadings, Plaintiffs must include the time, place, and nature of the alleged fraud; “mere conclusory allegations of fraud are insufficient” to satisfy this requirement. Id. (citation and quotation signals omitted). Where there are multiple defendants, Plaintiffs cannot “lump multiple defendants together” and instead must “differentiate their allegations [between defendants].” Destfino v. Reiswig, 630 F.3d 952, 958 (9th Cir.2011) (citation omitted). However, “[m]alice, intent, knowledge, and other condition of mind of a person may be averred generally.” Fed.R.Civ.P. 9(b); see also In re GlenFed, Inc. Sec. Litig., 42 F.3d at 1547 (“We conclude that plaintiffs may aver scienter ... simply by saying that scienter existed.”); Walling v. Beverly Enter., 476 F.2d 393, 397 (9th Cir.1973) (Rule 9(b) “only requires the identification of the circumstances constituting fraud so that the defendant can prepare an adequate answer from the allegations.” (citations omitted)).

A motion to dismiss for failure to plead with particularity is the functional equivalent of a motion to dismiss under Fed.R.Civ.P. 12(b)(6). Vess v. Ciba–Geigy Corp. USA, 317 F.3d 1097, 1107 (9th Cir.2003). In considering a motion to dismiss, the court is not deciding the issue of “whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support claims.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overruled on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).

IV. DISCUSSION

Most, if not all, of the arguments raised by Title Guaranty were addressed in several of this court's recent Orders regarding similar complaints.⁴ See, e.g., Hoilien v. Bank of Am., 2011 WL 2518731 (D.Haw. June 23, 2011); ...