Richardson v. Bank of N.Y. Mellon
| Decision Date | 20 August 2020 |
| Docket Number | CIV. NO. 19-00374 JMS-WRP |
| Parties | ANNA KUULEIONAONA RICHARDSON, Plaintiff, v. THE BANK OF NEW YORK MELLON, AS TRUSTEE FOR THE CERTIFICATE HOLDERS OF CWALT, INC. ALTERNATIVE LOAN TRUST 2006-OC8, MORTGAGE PASS THROUGH CERTIFICATES, SERIES 2006-OC8; AND SHELLPOINT MORTGAGE, Defendants. |
| Court | U.S. District Court — District of Hawaii |
Pro se Plaintiff Anna Kuuleionaona Richardson ("Plaintiff") asserts numerous claims against the lender and servicer of her residential mortgage—Defendants The Bank of New York Mellon fka The Bank of New York, as Trustee for the Certificateholders of CWALT, Inc., Alternative Loan Trust 2006-OC8, Mortgage Pass-Through Certificates, Series 2006-OC8 ("BONY Mellon"); and NewRez LLC fka New Penn Financial, LLC dba Shellpoint Mortgage Servicing ("Shellpoint") (collectively, "Defendants").1 ECF No. 1.
By the instant Motion, Defendants seek dismissal of the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) contending that Plaintiff failed to state a claim upon which relief can be granted. ECF No. 23. The court finds this matter suitable for disposition without a hearing. See Local Rule 7.1(c). For the reasons discussed below, the court GRANTS Defendants' Motion to Dismiss.
To summarize the relevant background, the court relies on allegations in the Complaint, as well as matters of public record in the State of Hawaii Bureau of Conveyances.3
On or about August 25, 2006, Plaintiff executed a promissory note (the "Note") in exchange for a loan in the amount of $352,000 from Countrywide Home Loans, Inc. ("Countrywide"). See ECF No. 1 at PageID #3-4; see also Defs.' Ex. 1, ECF No. 23-3 at PageID #128 (the "Mortgage"). The loan was secured by a mortgage on Plaintiff's residential property (the "Mortgage") located at 41-581 Inoale Street, Waimanalo, Hawaii 96795 (the "subject property"). See ECF No. 1 at PageID #3-4; see also Defs.' Ex. 1, ECF No. 23-3 at PageID #128-29. The Mortgage, recorded in the Bureau of Conveyances on September 6, 2006, see ECF No. 23-3 at PageID #127, identifies Plaintiff as the "Borrower," Countywide as the "Lender," and Mortgage Electronic Registration Systems, Inc. ("MERS") as the mortgagee "solely as nominee for Lender and Lender's successors and assigns." Id. at PageID #128. The Mortgage provides to MERS and its successors and assignees the power to sell the subject property to effectuate repayment of the loan and specifies that the "Note or a partial interest in the Note (together with this Security Instrument) can be sold one or more times without prior notice to [Plaintiff]." Id. at PageID #138. On March 20, 2018, MERS assigned the Mortgage to BONY Mellon, and on March 22, 2018, the Assignment was recorded at the Bureau of Conveyances. See ECF No. 1 at PageID #4; ECF No. 23-4 at PageID #149-51 (the "Assignment"). The Complaint identifies Shellpoint as the current servicer of the loan. ECF No. 1 at PageID #3.
Although not entirely clear, the Complaint alleges that Plaintiff was not qualified for the loan when she obtained it, was unable to negotiate a loan modification, was not notified that her loan was purchased on one or more occasions, defaulted on the loan, and that Shellpoint issued a notice of intent to foreclose. See id. at PageID #4-5, 9-10, 22. The Complaint relies heavily on a purported "forensic audit" of the subject property issued by "Certified Forensic Loan Auditors." Id. at PageID #3-18. The Complaint's factual allegations appear to be excerpts from the unattached "forensic audit" and are confusing, conclusory, and largely indecipherable.4 Taken as a whole, however, the Complaint alleges that Defendants lack any right to foreclose the subject property.
On July 11, 2019, Plaintiff initiated this action by filing the Complaint, which alleges the following claims: (1) "Lack of Standing/Wrongful Attempt to Foreclosure;" (2) "Fraud in the Concealment;" (3) "Fraud in the Inducement;" (4) "Unconscionable Contract;" (5) "Breach of Contract;" (6) "Breach of Fiduciary Duty;" (7) "Quiet Title;" (8) "Slander of Title;"(9) "Declaratory Relief;" (10) Violation of the Consumer Credit Protection Act ("CCPA"); and (11) "Violation of Federal Regulations, Regulation X, 12 C.F.R. § 1024.41(b)(2)(i)(A)." Id. at PageID #18-38 (emphases omitted). Plaintiff seeks (1) a declaration that Defendants lack any interest in the subject property and Mortgage and therefore may not foreclose the subject property; (2) quiet title to the subject property; (3) a refund of Plaintiff's payments to Defendants; and (4) damages in an amount between $100,000 and $2 million, plus interest and attorney's fees. Id. at PageID #38-39.
Defendants filed the instant Motion on February 25, 2020. ECF No. 23. On March 11, 2020, Plaintiff sought an extension of time to file her Opposition, or alternatively, to amend her Complaint. ECF No. 24. On March 12, 2020, the court extended the deadline for Plaintiff to file her Opposition from April 3, 2020 to May 1, 2020. ECF No. 26. On May 1, 2020, Plaintiff sent an email to the court indicating that she would stand on her Complaint and was not seeking further extension; thus, the court construes Plaintiff's email as her Opposition. See ECF No. 29. Defendants filed a Reply on May 11, 2020. ECF No. 30. Pursuant to Local Rule 7.1(c), the court finds this matter suitable for disposition without a hearing.
Federal Rule of Civil Procedure 12(b)(6) permits a motion to dismiss for "failure to state a claim upon which relief can be granted." To state a claim, a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). In considering whether a complaint fails to state a claim, the court must set conclusory factual allegations aside, accept non-conclusory factual allegations as true, and determine whether these allegations state a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 677-80 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Weber v. Dep't of Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir. 2008). A Rule 12(b)(6) dismissal is proper when there is either a "lack of a cognizable legal theory or the absence of sufficient facts alleged." UMG Recordings, Inc. v. Shelter Capital Partners, LLC, 718 F.3d 1006, 1014 (9th Cir. 2013) (quoting Balistreri v. Pacifica Police Dep't, 901 F.3d 696, 699 (9th Cir. 1990)).
Rule 8 requires more than "the-defendant-unlawfully-harmed-me accusation[s]" and "[a] pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do." Iqbal, 556 U.S. at 678 (citations and quotations omitted). "Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement." Id. (quotation signalsomitted). 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); see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).
Because Plaintiff is proceeding pro se, the court liberally construes the Complaint and resolves all doubts in her favor. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted). The court must grant leave to amend if it appears that Plaintiff can correct the defects in her Complaint, Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000), but if a claim or complaint cannot be saved by amendment, dismissal with prejudice is appropriate. Sylvia Landfield Tr. v. City of L.A., 729 F.3d 1189, 1196 (9th Cir. 2013); see also Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 532 (9th Cir. 2008) () (citation omitted).
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 thecircumstances 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. Thus, Plaintiff's Complaint must include "the who, what, when, where, and how" of the misconduct alleged. Vess v. Civa-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003). However, "[m]alice, intent, knowledge, and other conditions of a person's mind may be alleged generally." Fed. R. Civ. P. 9(b); see also In re GlenFed, Inc. Sec. Litig., 42 F.3d at 1547 ().
Plaintiff's Complaint fails to comply with Rule 8. First, the Complaint refers to "Defendants" without specifying which Defendant engaged in what conduct, and/or includes allegations against entities not named as parties in this case.5 Second, the Complaint fails to include sufficient factual allegations to support each claim. To the contrary, the Complaint is replete with mere legal assertions and/or allegations that are nonsensical, speculative, conclusory, and/orlargely based on conjecture and opinion.6 Such allegations fail to provide any justification for relief.
In short, the Complaint fails to comply with Rule 8's requirements that a pleading contain "a short and plain statement of the claim showing that the pleader is entitled to relief" and "a demand for the relief sought." Fed. R. Civ. P. 8(a). In addition, for the reasons set forth below, each specific...
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