Brown v. Countrywide Home Loans Inc, et al, No. 2:2015cv00199 - Document 40 (E.D. Wash. 2016)
Court Description: ORDER granting 23 Defendants Motion to Dismiss for Failure to State a Claim. Parties Northwest Trustee Services Inc (a trustee doing business in Washington state), Mortgage Electronic Registration Systems Inc (a corporation doing business in Washington state) and Nationstar Mortgage LLC (a limited liability company) are DISMISSED WITHOUT PREJUDICE. Signed by Judge Salvador Mendoza, Jr. (SK, Case Administrator)
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Brown v. Countrywide Home Loans Inc, et al Doc. 40 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 1 Mar 30, 2016 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 2 SEAN F. MCAVOY, CLERK 3 No. 2:15-CV-0199-SMJ BARRY K. BROWN, 4 Plaintiff, ORDER 5 v. 6 7 8 9 10 11 12 13 14 15 COUNTRYWIDE HOME LOANS, INC., a California corporation; BANK OF AMERICA, N.A., a national bank doing business in Washington state; NORTHWEST TRUSTEE SERVICES, INC., a trustee doing business in Washington state; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., aka MERS, a corporation doing business in Washington state; NATIONSTAR MORTGAGE, LLC, a limited liability company; and DOES 1-100, inclusively and All Persons Unknown, Claiming Any Legal Or Equitable Right, Title, Estate, Lien, Or Interest In The Property Described In The Complaint Adverse To Plaintiff’s Title, Or Any Cloud On Plaintiff’s Title Thereto, 16 Defendants. 17 18 This matter comes before the Court on a motion to dismiss by Defendants 19 Mortgage Electronic Registration Systems, Inc., Nationstar Mortgage, and 20 Northwest Trustee Services, Inc., ECF No. 23. Having thoroughly considered the ORDER - 1 Dockets.Justia.com 1 parties’ briefing and the relevant record, the Court grants the motion for the 2 reasons explained below. 3 On May 26, 2015, plaintiff a complaint against the present movants alleging 4 claims for negligence, fraud, violations of the Washington Deed of Trust Act, 5 accounting, breach of contract, unjust enrichment, quiet title, declaratory relief, 6 injunctive relief, violations of the Fair Credit Reporting Act, and violations of the 7 Racketeer Influenced Corrupt Organizations Act. These defendants ask the Court to dismiss the complaint for failure to state 8 9 a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). 10 To grant a motion to dismiss, the court must be able to conclude that the 11 moving party is entitled to judgment as a matter of law, even after accepting all 12 factual allegations in the complaint as true and construing them in the light most 13 favorable to the non-moving party. Fleming v. Pickard, 581 F.3d 922, 925 (9th 14 Cir. 2009). To survive a motion to dismiss, a plaintiff must first include a short 15 and plain statement of the claim showing that he or she is entitled to relief. Fed. 16 R. Civ. Proc. 8(a)(2). 17 A. Negligence 18 Plaintiff alleges that the defendants breached their duty to maintain proper 19 and accurate loan records by failing to properly credit loan payments, preparing 20 and filing false documents, and foreclosing on his property without legal authority ORDER - 2 1 or proper documentation. Plaintiff alleged that this caused his credit score to 2 decrease and his tax liability to increase. ECF No. 1 at 17. 3 To state a claim for negligence, a plaintiff must prove (1) the defendant 4 owed plaintiff a duty of care, (2) the defendant breached that duty, (3) the breach 5 damaged plaintiff, and (4) defendant’s breach was the proximate cause of 6 plaintiff’s damages. Ranger Ins. Co. v. Pierce Cnty., 164 Wn.2d 545, 554, 192 7 P.3d 886 (2008). 8 Brown alleges that all defendants breached their duty of care to “exercise 9 reasonable care and skill to maintain proper and accurate loan records” by “failing 10 to properly and accurately credit payments made by Plaintiff toward the loan, 11 preparing and filing false documents, and foreclosing on the Subject Property 12 without having the legal authority and/or proper documentation to do so.” ECF 13 No. 1 at 17. 14 The movants make a number of arguments in support of summary judgment 15 on this cause of action. While 16 fundamental problem with Brown’s complaint is that it is insufficiently specific to 17 permit the Court to evaluate whether these arguments apply. Rule 8(a)(2) of the 18 Federal Rules of Civil Procedure requires plaintiffs to include “a short and plain 19 statement of the claim showing that” they “are entitled to relief”. 20 complaint does not meet the Rule 8 standard. ORDER - 3 some of these arguments may apply, the Brown’s 1 B. Fraud 2 Under Washington law, a claim for fraud has the following nine elements: 3 (1) representation of an existing fact; (2) materiality; (3) falsity; (4) the speaker’s 4 knowledge of its falsity; (5) intent of the speaker that it should be acted upon by 5 the plaintiff; (6) plaintiff’s ignorance of its falsity; (7) plaintiff’s reliance on the 6 truth of the representation; (8) plaintiff’s right to rely upon it; and (9) damages 7 suffered by the plaintiff. Stiley v. Block, 130 Wash.2d 486, 505, 925 P.2d 194 8 (1996). To survive a motion to dismiss, a complaint must plead allegations of 9 fraud with particularity. Fed. R. Civ. Proc. 9(b). The complaint must include an 10 account of the time, place, and specific content of the false representations as well 11 as the identities of the parties to the misrepresentations. Swartz v. KPMG LLP, 12 476 F.3d 756, 764 (9th Cir. 2007). 13 While Brown brings a fraud claim against “all defendants individually and 14 as agents of other defendants,” he only makes specific allegations of fraud against 15 Bank of America. ECF No. 1 at 18. As to the moving defendants, Brown’s 16 allegation of fraud fails to comply with Rule 9(b). 17 C. Washington Deed of Trust Act 18 In this case, it is undisputed that no foreclosure sale has occurred. 19 Accordingly, Brown’s claim under the Deed of Trust Act fails because the Act 20 “does not create an independent cause of action for monetary damages where no ORDER - 4 1 foreclosure sale has been completed.” Frias v. Asset Foreclosure Servs., Inc., 181 2 Wn.2d 412, 417, 334 P.3d 529 (2014). 3 D. Accounting 4 A claim for an accounting must be accompanied by an allegation that there 5 is a fiduciary relationship between the parties or that the account is so complicated 6 that it cannot conveniently be taken in an action at law. State v. Taylor, 58 Wn.2d 7 252, 262, 362 P.2d 247 (1961). Brown alleged neither requisite. Accordingly, his 8 claim for an accounting fails. 9 E. Unjust enrichment and promissory estoppel 10 In Washington, unjust enrichment is the method of recovery for the value of 11 the benefit retained absent any contractual relationship because notions of fairness 12 and justice require it. Young v. Young, 164 Wn.2d 477, 484, 191 P.3d 1258 13 (2008). A party to a valid express contract is bound by the provisions of that 14 contract, and may not disregard the same and bring an action on an implied 15 contract (like unjust enrichment and promissory estoppel) relating to the same 16 matter, in contravention of the express contract. Chandler v. Wash. Toll Bridge 17 Auth., 17 Wn.2d 591, 604, 137 P.2d 97 (1943). Here, it is undisputed that the 18 relationship between the parties was controlled by contracts—the note and deed of 19 trust. Accordingly, these claims fail. 20 // ORDER - 5 1 F. Quiet title 2 In Washington, actions to quiet title resolve competing claims of ownership 3 or the right to possess property. Kobza v. Tripp, 105 Wn. App. 90, 95, 18 P.3d 4 621 (2001). The problem here is that none of the defendants are claiming a right 5 to own or possess the subject property. And Brown does not allege that he has 6 satisfied the terms of the deed of trust. So there is nothing to resolve by quiet title 7 action. Accordingly, it fails. 8 G. Declaratory & injunctive relief 9 As the defendants point out, declaratory and injunctive relief are 10 remedies—not independent causes of action. Accordingly, these bare claims for 11 declaratory or injunctive relief fail. 12 H. Racketeer Influence Corrupt Organizations Act 13 To establish the basic elements of a civil RICO claim, a private plaintiff 14 must allege (1) conduct (2) of an enterprise (3) through a pattern (4) of 15 racketeering activity. Sedima S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 (1985). 16 “Racketeering activity” includes a long list of statutorily defined predicate acts 17 such as mail and wire fraud, bank fraud, money laundering, and transacting in 18 stolen property. 18 U.S.C. § 1961(1)(B). 19 Plaintiffs must allege with particularity the time, place, and manner of each 20 act of fraud, plus the role of each defendant in each scheme. Lancaster ORDER - 6 1 Community Hosp. v. Antelope Valley Hosp. Dist., 940 F.2d 397, 405 (9th Cir. 2 1991). Because Brown does not allege anything related to his RICO claim with 3 particularity, it fails. 4 Accordingly, IT IS HEREBY ORDERED: 5 1. Services’ Motion to Dismiss, ECF No. 23, is GRANTED. 6 7 2. 10 11 Nationstar Mortgage, MERS, and Northwest Trustee Services are DISMISSED WITHOUT PREJUDICE. 8 9 Defendants Nationstar Mortgage, MERS, and Northwest Trustee IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order and provide copies to all counsel. DATED this 30th day of March 2016. 12 SALVADOR MENDOZA, JR. United States District Judge 13 14 15 16 17 18 19 20 Q:\SMJ\Civil\2015\Brown v Countrywide Home Loans Inc et al-0199\ord mtd nsm lc1 docx ORDER - 7
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