Smetka v. Homeq/Wells Fargo

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE RICHARD J. SMETKA, ) ) ) ) ) ) ) ) ) ) ) Plaintiff/Appellant, v. HOMEQ SERVICING CORPORATION; WELLS FARGO BANK, NA, Defendants/Appellees. No. DIVISION ONE FILED: 06-08-2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CV 09-0520 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. CV 2009-050676 The Honorable Eddward Ballinger, Jr., Judge AFFIRMED Richard J. Smetka In propria persona Phoenix Tiffany & Bosco, P.A. By Michael A. Bosco, Jr. May Lu Attorneys for Appellees Phoenix J O H N S E N, Judge ¶1 Richard J. Smetka appeals from the superior court s grant of a Corporation motion and Appellees ). to dismiss filed by Fargo Bank, N.A. Wells HomEq Servicing (collectively For the following reasons, we affirm. FACTUAL AND PROCEDURAL HISTORY ¶2 In February Mortgage Corporation 2004, Smetka ( WMC ). The borrowed money debt evidenced was from WMC by a promissory note and secured by a deed of trust on Smetka s home. In November 2004, Smetka quitclaimed the home to the Trustees of the Smetka Family Trust. In the meantime, in March 2008, WMC assigned its beneficial interest in the deed of trust to Wells Fargo and in October 2008, the trustee recorded a notice of trustee s sale. ¶3 Smetka filed an Wells Fargo and HomEq. the complaint. eight-count complaint against WMC, HomEq and Wells Fargo moved to dismiss The court granted the motion and entered an order dismissing HomEq and Wells Fargo that included language required timely by Arizona appealed. Rule We of have Civil Procedure jurisdiction 54(b). pursuant to Smetka Arizona Revised Statutes ( A.R.S. ) section 12-2101(B) (2003). DISCUSSION A. ¶4 Standard of Review. We review an order granting a motion to dismiss for abuse of discretion. Dressler v. Morrison, 212 Ariz. 279, 281, 2 ¶ 11, 130 P.3d 978, 980 (2006). [W]e assume the truth of the allegations set forth in the complaint and uphold dismissal only if the plaintiffs would not be entitled to relief under any facts susceptible of proof in the statement of the claim. Mohave Disposal, Inc. v. City of Kingman, 186 Ariz. 343, 346, 922 P.2d 308, 311 (1996). B. Smetka s Issues on Appeal. ¶5 Rather than superior court erred offering in legal dismissing argument the for complaint why the against Appellees, Smetka s brief instead argues facts and theories not contained in the complaint and not raised in the superior court. In our discretion, we decline to address these issues on appeal. See, e.g., Maher v. Urman, 211 Ariz. 543, 548, ¶ 13, 124 P.3d 770, 775 (App. 2005) (arguments not made in superior court are waived on appeal). For the most part, Smetka s brief argues that the trustee s sale of the home was unauthorized or illegal. As Appellees note, however, the trustee s sale did not occur until after Appellees the argue, court granted Smetka s their complaint motion to dismiss. As did not contain any a complaint by allegations arising from the sale of the home. C. Smetka s Complaint Was Properly Dismissed. 1. ¶6 General principles. We determine the sufficiency of evaluating it under the standard stated in Arizona Rule of Civil 3 Procedure 8(a), which requires [a] short and plain statement of the claim showing that the pleader is entitled to relief. If a pleading does not comply with Rule 8, an opposing party may move to dismiss the action for [f]ailure to state a claim upon which relief can be granted. Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419, ¶ 7, 189 P.3d 344, 346 (2008) (quoting Ariz. R. Civ. P. 12(b)(6)). [A] complaint that states only legal conclusions, without any supporting factual allegations, does not satisfy Arizona's notice pleading standard under Rule 8. Cullen, 218 Ariz. at 419, ¶ 7, 189 P.3d at 346. We look only to the complaint when evaluating a motion to dismiss for failure to state a claim. ¶7 As Id. noted, Smetka s against all defendants. 2. ¶8 complaint alleged eight counts We address each in turn. Count One. Smetka s first count was titled, Unfair Lending Practices. It alleged, Defendants knowingly or intentionally made loan this to Plaintiff without determining, using commercially reasonable means or mechanism, that the Plaintiff had the ability to repay the home loans, in violation of under Arizona Revised Statutes. According to the complaint, however, neither Wells Fargo nor HomEq made [the] loan at issue to Smetka; that loan was made by WMC. Smetka offers no authority for the proposition that an assignee of a deed of trust or a 4 loan servicing company is liable for any wrongdoing of a lender. Therefore, we conclude the superior court correctly dismissed this count. 3. Count Two. ¶9 Smetka s negligently by second failing count to alleged the disclose defendants relevant acted information, failing to provide additional options for [Smetka], failing to conduct reasonable transactions and evaluation the into property the merits itself, and of the other loan regular, customary and usual activities that are born and conducted by professionals of their same nature and type. Again, these allegations arise out of the original making of the loan by WMC rather than servicing activities performed by HomEq or actions by Wells Appellees Fargo. were To the negligent extent in the failing complaint to provide meant that additional options for him, on appeal Smetka does not specify what those options might have been or provide any authority for the proposition that either HomEq or Wells Fargo were obligated to provide such options. 4. ¶10 Count Three. Count Three alleged negligence per se. Negligence per se requires a violation of a specific requirement of a law. Hutto v. Francisco, 210 Ariz. 88, 91, ¶ 12, 107 P.3d 934, 937 (App. 2005) (citation omitted). 5 The complaint, however, fails to cite any specific law that the Appellees allegedly violated; nor does Smetka identify any such provision on appeal. Therefore, the superior court correctly dismissed this claim. 5. Count Four. ¶11 Count Four alleged defendants breached a fiduciary duty to Smetka that arose in connection with their work[ing] on behalf of herein. [Smetka] to close the loan transactions discussed Because neither Wells Fargo nor HomEq was involved in the closing of the loan to Smetka, we do not understand these allegations dismissal to of have these been directed allegations at against them; them accordingly, was proper. Moreover, assuming without deciding that HomEq and Wells Fargo owed Smetka a fiduciary duty, the complaint contained no facts to support Smetka s contention that they breached that duty. 6. ¶12 Count Five. Count Five alleged negligent misrepresentation. According to the complaint, defendants breached their duty to represent accurately, truthfully, and completely all information that [Smetka] relied upon in performing [his] investigation, consideration and evaluation and/or the selection of financing for the subject property. original loan transaction, HomEq was involved. Again, these allegations concern the in which neither Wells Fargo nor The contention that Appellees negligently represented information in connection with Smetka s decision to 6 enter into the loan is an unwarranted deduction[] of fact that is insufficient to withstand a motion to dismiss. See Aldabbagh v. Ariz. Dep t of Liquor Licenses and Control, 162 Ariz. 415, 417, 783 P.2d 1207, 1209 (App. 1989). 7. Count Six. ¶13 Count Six alleged that Appellees intentionally misrepresented the nature of the loan, that [Smetka] needed a mortgage of a sub-prime nature that such a sub-prime loan was in [Smetka s] benefit, and other intentional misrepresentations. Again, made in neither this allegation connection Wells concerned with Fargo the nor acts committed issuance HomEq was of the or omissions loan, involved. in which Accordingly, dismissal of this claim was proper. 8. Count Seven. ¶14 Count Seven alleged defendants breached the covenant of good faith and fair dealing. In Arizona, a covenant of good faith and fair dealing is implied in every contract. Maleki v. Desert Palms Prof l Props., L.L.C., 222 Ariz. 327, 333, ¶ 28, 214 P.3d 415, 421 (App. 2009). The complaint, however, alleged no facts supporting the contention that Appellees breached a duty of good faith and fair dealing. conclusory fairly and advantage fashion in of that good him defendants faith with regarding breached Smetka the 7 The complaint alleged in loan and by by not dealing taking undue transactions. These allegations are too vague to support a claim for relief; moreover, they appear to concern acts committed prior to the formation of any contract that may have given rise to a duty of good faith owed to Smetka by Wells Fargo or HomEq. Therefore, we conclude the superior court correctly dismissed Count Seven. 9. Count Eight. ¶15 Count Eight was a claim to restrain or to set aside a wrongful foreclosure injunction, a against plaintiff all must defendants. first To establish obtain [a] likelihood that he will succeed at trial on the merits. an strong Shoen v. Shoen, 167 Ariz. 58, 63, 804 P.2d 787, 792 (App. 1990). As we have concluded that dismissal of each of the other claims was proper against Appellees, the superior court was correct in dismissing count eight.1 D. ¶16 Request for Attorney s Fees. Appellees request their attorney s fees and costs pursuant to A.R.S. § 12-341.01(A) (2003) and ARCAP 21, as well as A.R.S. § 12-349 (2003) and ARCAP 25. Because this case arises out of a contract, A.R.S. § 12-341.01(A) applies, and we grant Appellees request for attorney s fees on appeal, as well as their costs subject to compliance with ARCAP 21. 1 We also note that according to our record, Smetka quitclaimed his interest in the home and therefore may lack standing to seek to restrain or set aside the trustee s sale. 8 CONCLUSION ¶17 court s For the dismissal foregoing of the reasons, complaint we affirm against the Wells superior Fargo and HomEq. /s/______________________________ DIANE M. JOHNSEN, Presiding Judge CONCURRING: /s/____________________________ PATRICK IRVINE, Judge /s/____________________________ PHILIP HALL, Judge 9

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