Subramaniam v. Beal
| Decision Date | 27 September 2013 |
| Docket Number | No. 3:12-cv-01681-MO,3:12-cv-01681-MO |
| Parties | DENISE SUBRAMANIAM, pro se, Plaintiff, v. D. ANDREW BEAL, et al., Defendants. |
| Court | U.S. District Court — District of Oregon |
In her first amended complaint [20], pro se plaintiff Denise Subramaniam alleges a variety of claims centered around the mortgaging and threatened foreclosure of her home. Previously, I appointed pro bono counsel [14] for the purpose of assisting Ms. Subramaniam in drafting an amended complaint [20]. Now, defendants Northwest Trustee Services, Inc. [31], , MGC Mortgage [66], Ally Financial [105], Litton Loan Servicing LP [120], and Phil Gramm [127] move to dismiss Ms. Subramaniam's amended complaint [20]. For the reasons explained below, I dismiss with prejudice all of Ms. Subramaniam's claims against all defendants.1
On February 9, 2004, Ms. Subramaniam obtained a home mortgage from People's Choice Home Loan, Inc. ("People's Choice"). The loan has since been transferred three times. In 2007, after the first assignment of the note and Deed of Trust by People's Choice to Homecomings Financial Network, Inc., People's Choice filed for bankruptcy protection and was ultimately liquidated. See In re People's Choice Home Loan, Inc., Case No. 07-10765, United States Bankruptcy Court, Central District of California (Santa Ana). People's Choice is not a defendant in this case. The loan and Deed of Trust are currently held by LNV Corporation. (Req. Jud. Notice [67], Ex. D.)
LNV commenced foreclosure by trustee's sale in 2012. On May 20, 2012, Ms. Subramaniam received a notice of trustee's sale, posted at her home. However, the trustee's sale was canceled on September 27, 2012, and Ms. Subramaniam remains in possession of her home. (Req. Jud. Notice [76].)
Ms. Subramaniam's allegations appear to stem from the threatened foreclosure and from the transfers of her loan. She alleges the following general claims: "fraudulent foreclosure" and resulting emotional and physical damage; fraud and mail fraud; conspiracy; breach of contract; violation of the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2601 et seq.; violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C.§ 1962; and discrimination in violation of the Federal Housing Act ("FHA"), 42 U.S.C. § 3601 et seq., and the Equal Credit Opportunity Act ("ECOA"), 15 U.S.C. § 1691.2 I discuss each in turn.
When reviewing a motion to dismiss, the court must "accept all factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party." Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). The court construes pro se pleadings "liberally," affording pro se plaintiffs the "benefit of any doubt." Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). However, this liberal interpretation of a pro se complaint "may not supply essential elements of the claim that were not initially pled." Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). A court need not accept legal conclusions as true because "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). When a pro se plaintiff has been given a chance to amend her complaint, the court has appointed an attorney to assist with the process, and she still fails to state a sufficient or coherent claim, her claim may be dismissed with prejudice. See Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992) ().
To survive a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A pleading that offers only "labels andconclusions" or "'naked assertion[s]' devoid of 'further factual enhancement'" will not suffice. Id. (quoting Twombly, 550 U.S. at 555, 557). While the plaintiff does not need to make "detailed factual allegations"at the pleading stage, the allegations must be sufficiently specific to give the defendant "fair notice" of the claim and the grounds on which it rests. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (per curiam) (citing Twombly, 550 U.S. at 555).
This court must determine whether it may exert personal jurisdiction over defendant Phil Gramm. The plaintiff bears the burden of demonstrating that personal jurisdiction over each defendant is appropriate. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004). Oregon's long-arm statute extends jurisdiction to the outer limits of the state and federal constitutions. See Or. R. Civ. Pro. 4(L); State ex rel. Western Seed Production Corp. v. Campbell, 250 Or. 262, 271, 442 P.2d 215, 219 (1968). In order to exercise personal jurisdiction over an out-of-state defendant, it must be shown that the defendant has sufficient "minimum contacts" with the forum state that the exercise of jurisdiction does not offend "traditional notions of fair play and substantial justice." Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (internal citations omitted). Personal jurisdiction can be either general or specific. General jurisdiction is constitutionally permissible only if the defendant has engaged in "continuous and systematic" contacts with the forum state. See Schwarzenegger, 374 F.3d at 801 (internal citations omitted). Specific jurisdiction is proper where the out-of-state defendant (1) has purposefully directed his activities at the forum state; (2) the claim arises out of the defendant's forum-related activities; and (3) the exercise of jurisdiction comports with fair play and substantial justice. See id. at 802.
As to plaintiff's claim of wrongful foreclosure, the case or controversy requirement of the United States Constitution deprives federal courts of jurisdiction to hear moot cases. Iron ArrowHonor Soc'y v. Heckler, 464 U.S. 67, 70 (1983). A case is moot when it "has lost its character as a present, live controversy" and no effective relief can be granted. United States v. Geophysical Corp. of Alaska, 732 F.2d 693, 698 (9th Cir. 1984). Mootness is a question of subject matter jurisdiction that courts must consider under Federal Rule of Civil Procedure 12(b)(1). White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000).
There is no indication that former Senator Phil Gramm, who served from 1985-2002 as a United States Senator from the state of Texas, has such continuous and systematic contacts with the state of Oregon that he is subject to general jurisdiction therein. The amended complaint [20] alleges no instances in which Senator Gramm purposefully directed activities at the state of Oregon, and there is no suggestion that this suit arises from any such activities. In fact, the only allegations against Senator Gramm pertain to his legislative activities as a United States Senator from Texas; as such, Senator Gramm would be absolutely immune from liability under the Speech or Debate Clause of the Constitution. U.S. Const. Art. I § 6. These activities are not sufficiently related to the state of Oregon to allow for the exercise of specific jurisdiction over Senator Gramm.
I need not decide, or even address, the question of immunity, as this court lacks personal jurisdiction over Senator Gramm. I dismiss all claims against him with prejudice. Defendant Senator Gramm's motion to dismiss [127] is GRANTED.
I interpret Ms. Subramaniam's claim of "fraudulent foreclosure" as one for wrongful foreclosure. Oregon recognizes a cause of action for the wrongful foreclosure of a trust deed.ORS 86.735. However, this cause of action lies only where the foreclosure has actually occurred. See Tabb v. One West Bank, No. 3:10-855, 2011 WL 4448752 at *9 (D. Or. Aug. 26, 2011); Hulse v. Ocwen Federal Bank, FSB, 195 F. Supp. 2d 1188, 1204 n. 5 (D. Or. 2002). Ms. Subramaniam's claim for wrongful foreclosure is moot because her house was not foreclosed upon. (Req. Jud. Notice [76].). Because no foreclosure occurred, there is no controversy about whether it was fraudulent or wrongful, and the court cannot provide any relief. Oregon does not recognize a cause of action for wrongful attempted foreclosure, see Hulse, 195 F. Supp. 2d at 1204 n.5, so Ms. Subramaniam's allegation that a potentially wrongful foreclosure was threatened or attempted does not give rise to a cause of action.
Ms. Subramaniam alleges that she suffered emotional and physical damages from the threatened foreclosure. As there is no cause of action for wrongful attempted foreclosure in Oregon, and no foreclosure has occurred, Ms. Subramaniam cannot recover for these alleged damages under a wrongful foreclosure theory. See id. Construed liberally, however, Ms. Subramaniam's claim may be one for intentional infliction of emotional distress ("IIED"). To prevail on an intentional infliction of emotional distress ("IIED") claim under Oregon law, a plaintiff must prove that: "(1) the defendant intended to inflict severe emotional distress on the plaintiff, (2) the defendant's actions caused the plaintiff severe emotional distress, and (3) the defendant's actions transgressed the bounds of socially tolerable conduct." Schiele v. Montes, 231 Or. App. 43, 48, 218 P.3d 141, 144 (2009). Under Oregon law, "[l]iability [for IIED] has been found only where the...
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