Swango v. Nationstar Sub1, LLC

• Decision Date: 27 August 2018
• Docket Number: Case No. 3:17-cv-01338-MO
• Citation: Swango v. Nationstar Sub1, LLC, Case No. 3:17-cv-01338-MO (D. Or. Aug 27, 2018)
• Parties: SUSAN K. SWANGO, Plaintiff, v. NATIONSTAR SUB1, LLC; NATIONSTAR MORTGAGE HOLDINGS, INC.; NATIONSTAR MORTGAGE, LLC, doing business as Champion Mortgage Company; METLIFE HOME LOANS, LLC; METLIFE BANK, NATIONAL ASSOCIATION; ZIEVE, BRODNAX AND STEELE, LLP; BENJAMIN D. PETIPRIN; METLIFE, INC.; SYNCHRONY BANK; SYNCHRONY FINANCIAL; and FIDELITY NATIONAL TITLE INSURANCE COMPANY, doing business as Lawyers Title Insurance Corporation, Defendants.
• Court: U.S. District Court — District of Oregon

SUSAN K. SWANGO, Plaintiff, v. NATIONSTAR SUB1, LLC; NATIONSTAR MORTGAGE HOLDINGS, INC.;NATIONSTAR MORTGAGE, LLC, doing business as Champion Mortgage Company;METLIFE HOME LOANS, LLC; METLIFE BANK, NATIONAL ASSOCIATION;ZIEVE, BRODNAX AND STEELE, LLP; BENJAMIN D. PETIPRIN; METLIFE, INC.;SYNCHRONY BANK; SYNCHRONY FINANCIAL; and FIDELITY NATIONAL TITLEINSURANCE COMPANY, doing business as Lawyers Title Insurance Corporation, Defendants.

Case No. 3:17-cv-01338-MO

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION

August 27, 2018

OPINION AND ORDER

MOSMAN, J.,

This matter comes before the Court on the following Motions: the Motion to Dismiss[54]Plaintiff's Second Amended Complaint [47] pursuant to Federal Rule of Civil Procedure 12(b)(6) filed by Defendants Zieve, Brodnax, and Steele, LLP, and Benjamin Petiprin(collectively, "the Zieve Defendants"); the Motion to Dismiss[55] filed by DefendantsNationstar Mortgage LLC d/b/a Champion Mortgage Company, MetLife Home Loans LLC, and MetLife Bank, N.A.("Nationstar" or "MetLife," respectively); and the Request for Judicial Notice[56] filed by MetLife and Nationstar.

For the reasons that follow, the Court GRANTS the Zieve Defendants' Motion to Dismiss[54]; GRANTS in part and DENIES in part MetLife and Nationstar's Motion to Dismiss[55]; and GRANTS MetLife and Nationstar's Request for Judicial Notice[56].The Court declines to exercise supplemental jurisdiction over Plaintiff's state-law claims and DISMISSES this action, without prejudice for Plaintiff to pursue her claims in state court.

BACKGROUND

The following facts are taken from Plaintiff's Second Amended Complaint [47], the Line of Credit Deed of Trust attached as Exhibit 1 [57-1] to the Declaration of James P. Laurick[56], the Assignment of Trust Deed [57-2] attached as Exhibit 2 thereto,¹ and the Fixed Rate Note attached as Exhibit 3 thereto [57-3], and are taken as true at this stage of the proceedings:

Plaintiff obtained a line of credit from MetLife secured by a Deed of Trust on Plaintiff's real property ("the Property"). 2d Am. Compl. [47]¶ 38;see alsoLaurick Decl. [57]Exh. 1[57-1].Plaintiff alleges that MetLife, as part of its advertising for reverse mortgage products,represented to prospective borrowers that a borrower could "stay in your home until you die."2d Am. Compl. [47]¶ 96.The Deed of Trust was recorded on June 22, 2009, and identified the "maximum principal amount" as $938,250.00.Id.¶¶ 38, 151.Paragraph 2 of the Deed of Trust requires Plaintiff to:

pay all property charges consisting of taxes, ground rents, flood and hazard insurance premiums, and special assessments in a timely manner, and shall provide evidence of payment to Lender, unless Lender pays property charges by withholding funds from monthly payments due to the Borrower or by charging such payments to a line of credit as provided for in the Loan Agreement.

Laurick Decl.[56]Exh. 1 [57-1], at 2.Paragraph 5 of the Deed of Trust provides:

If Borrower fails to make these payments or the property charges required by Paragraph 2, or fails to perform any other covenants and agreements contained in this Security Instrument, or there is a legal proceeding that may significantly affect Lender's rights in the Property (such as a proceeding in bankruptcy, for condemnation or to enforce laws or regulations), then Lender may do and pay whatever is necessary to protect the value of the Property and Lender's rights in the Property, including payment of taxes, hazard insurance and other items mentioned in Paragraph 2.

Id., at 3.The Deed of Trust provides that the Lender may accelerate the debt and require immediate payment in full if "[a]n obligation of the Borrower under this Security Instrument is not performed."Id., at 3-4.It also states that, in the event of acceleration, the "Lender may invoke the power of sale and any other remedies permitted by applicable law."Id., at 6.

On July 11, 2012, MetLife assigned to Champion Mortgage Company"all rights and benefits whatsoever accrued or to accrue under" the Deed of Trust.Laurick Decl.[56]Exh. 2 [57-2], at 1.Champion is an entity related to Nationstar. 2d Am. Compl. [47]¶¶ 10-11.As of July 20, 2017, MetLife and Nationstar had lent to Plaintiff $664,125.08 in principal with a total amount due of $742,784.87.Id.¶ 106.At an unspecified time, Nationstar accelerated the debt and moved to foreclose on the Property on the basis that Plaintiff had failed to pay propertytaxes.Id.¶ 110.Plaintiff alleges that, in the event that she did not pay property taxes, Nationstar was required to pay them under the terms of the loan.Id.¶¶ 102-05.

Plaintiff, proceeding pro se, brings nine causes of action.In Claim One, she brings a breach of contract claim against MetLife and Nationstar on the basis that they failed to fulfill their contractual obligation to pay property taxes, and did not advance Plaintiff the full amount of funds called for under the line of credit contract.Id.¶¶ 94-112.In Claim Two, Plaintiff brings a claim to quiet title in the Property as to MetLife and Nationstar.Id.¶¶ 113-41.In Claim Three, Plaintiff brings a claim for civil conspiracy against all Defendants on the basis that they conspired to conduct an unlawful foreclosure of the Property.Id.¶¶ 142-69.In Claim Four, Plaintiff brings two counts against Nationstar under the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692-1692p. 2d Am. Compl. [47]¶¶ 170-88.In Claim Five, Plaintiff brings a claim against Nationstar under the Racketeer Influenced and Corrupt Organizations Act("RICO"), 18 U.S.C. § 1961 et seq. 2d Am. Compl. [47]¶¶ 189-214.In Claim Six, Plaintiff brings five counts under the Oregon Unlawful Trade Practices Act ("UTPA"), Or. Rev. Stat. §§ 646.607,646.638, and646.639, against MetLife and Nationstar. 2d Am. Compl. [47]¶¶ 215-32.In Claim Seven, Plaintiff brings two counts under Or. Rev. Stat. §§ 124.100and124.110 against MetLife, Nationstar, and Fidelity for financial abuse of a protected person. 2d Am. Compl. [47]¶¶ 233-52.In Claim Eight, Plaintiff brings a claim for fraud against MetLife and Fidelity on the basis that MetLife made the loan to Plaintiff, and Fidelity insured the loan, with the intention of foreclosing on the Property.Id.¶¶ 253-69.Lastly, Plaintiff brings a declaratory judgment claim against all Defendants regarding whether Plaintiff is required to allege that she has tendered the amount due on the loan in order to bring a quiet title claim.Id.¶¶ 270-84.

Plaintiff's earlier First Amended Complaint [8] contained largely the same allegations and claims as the Second Amended Complaint.Defendants filed Motions to Dismiss[18, 24] the First Amended Complaint, which the Court addressed in its Opinion and Order [37] of February 5, 2018.The Court denied in part, granted in part with leave to amend, and granted in part without leave to amend the Motions to Dismiss.The Court stated: "The Court advises Plaintiff that failure to address the pleading deficiencies outlined in this Opinion and Order in her next amended complaint may result in the Court finding that dismissal of such claims with prejudice is necessary because further leave to amend would be futile."Op. & Order [37], at 27.

Plaintiff filed her Second Amended Complaint [47] on March 23, 2018.

STANDARDS

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).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).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.'"Id.(quotingBell Atl. Corp. v. Twombly, 550 U.S. 544, 570(2007)).A pleading that offers only "labels and conclusions" or "'naked assertion[s]' devoid of 'further factual enhancement'" will not suffice.Id.(quotingTwombly, 550 U.S. at 555, 557).While a 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 onwhich it rests.SeeErickson v. Pardus, 551 U.S. 89, 93(2007)(per curiam)(citingTwombly, 550 U.S. at 555).

Federal Rule of Civil Procedure 15 provides that a "court should freely give leave" to amend a complaint "when justice so requires."Fed. R. Civ. P. 15(a)(2).As such, when a court dismisses a complaint for failure to state a claim, "leave to amend should be granted 'unless the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency.'"DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658(9th Cir.1992)(quotingSchreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401(9th Cir.1986)).If amendment would be futile, the court need not grant leave to amend.Id."Leave to amend may also be denied for repeated failure to cure deficiencies by previous amendment."Abagninin v. AMVAC Chem. Corp., 545 F.3d 733, 742(9th Cir.2008).

When reviewing a motion to dismiss against a pro se plaintiff, the court construes the pro se pleadings "liberally," affording the plaintiff the "benefit of any doubt."Hebbe v. Pliler, 627 F.3d 338, 342(9th Cir.2010)(internal quotations omitted).This liberal interpretation may not, however, "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).

DISCUSSION

Nationstar and MetLife move to dismiss each of Plaintiff's causes of...