Myers v. Flagstar Bank, FSB et al, No. 3:2015cv05067 - Document 28 (W.D. Wash. 2015)
Court Description: ORDER granting 15 Defendant MCT's Motion to Dismiss for Failure to State a Claim, MCT is Dismissed with prejudice and without leave to amend; ORDER granting 14 Dismissing, only as to Defendant FNMA, without prejudice and without leave to ame nd; denying 18 Plaintiff's Motion to Amend First Complaint; denying 24 Plaintiff's Motion to Stop Mortgage Payment; Plaintiff has 21 days to file a Second Amended Complaint or this matter will be dismissed in its entirety; signed by Judge Ronald B. Leighton.(DN)
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Myers v. Flagstar Bank, FSB et al Doc. 28 1 HONORABLE RONALD B. LEIGHTON 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 8 GREGORY A. MYERS, CASE NO. C15-5067 RBL 9 Plaintiff, ORDER ON VARIOUS MOTIONS 10 v. [Dkt. #s 14, 15, 18, and 24] 11 FLAGSTAR BANK, FSB, et al., 12 Defendants. 13 14 THIS MATTER is before the Court on the following motions: Defendant FNMA’s and 15 Defendant Flagstar’s Motion to Dismiss [Dkt. #14]; Defendant MTC’s Motion to Dismiss [Dkt. 16 #15]; Plaintiff Myers’s Emergency Motion for Court to Order Flagstar to Cease Ongoing 17 Mortgage Payment Demands and Request to File a First Amended Complaint [Dkt. #18]; and 18 Myers’s Motion to Stop Mortgage Payment Demands for Discharged Debt [Dkt. #24]. 19 This is the second time Myers has sued Flagstar and MTC for claims arising out of his 20 mortgage, its default, and the subsequent foreclosure. See Myers v MERS, Cause No. 11-cv21 5582RBL. This Court dismissed the prior action with prejudice, Myers appealed, and the Ninth 22 Circuit affirmed [See Dkt. #s 28 and 29 in that case]. During the same period, Myers filed for 23 bankruptcy protection, and ultimately obtained a discharge of his unsecured debt. Defendants 24 ORDER ON VARIOUS MOTIONS - 1 Dockets.Justia.com 1 argue that Myers’s current claims are barred by res judicata. And, they argue, even if the claims 2 are not barred, Myers has waived the bulk of them by failing to restrain the foreclosure sale. 3 Defendants also claim that Myers is judicially estopped from asserting his claims because he did 4 not list them as assets in his bankruptcy, and that the claims fail on the merits as a matter of law, 5 in any event. They seek dismissal under Fed. R. Civ. P. 12 (b)(6). 6 Dismissal under Rule 12(b)(6) may be based on either the lack of a cognizable legal 7 theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. 8 Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff’s complaint must allege 9 facts to state a claim for relief that is plausible on its face. See Aschcroft v. Iqbal, 129 S. Ct. 10 1937, 1949 (2009). A claim has “facial plausibility” when the party seeking relief “pleads 11 factual content that allows the court to draw the reasonable inference that the defendant is liable 12 for the misconduct alleged.” Id. Although the Court must accept as true the Complaint’s well13 pled facts, conclusory allegations of law and unwarranted inferences will not defeat a Rule 12(c) 14 motion. Vazquez v. L. A. County, 487 F.3d 1246, 1249 (9th Cir. 2007); Sprewell v. Golden State 15 Warriors, 266 F.3d 979, 988 (9th Cir. 2001). “[A] plaintiff’s obligation to provide the ‘grounds’ 16 of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic 17 recitation of the elements of a cause of action will not do. Factual allegations must be enough to 18 raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 19 (2007) (citations and footnotes omitted). This requires a plaintiff to plead “more than an 20 unadorned, the-defendant-unlawfully-harmed-me-accusation.” Iqbal, 129 S. Ct. at 1949 (citing 21 Twombly). 22 On a Rule 12(b)(6) motion, “a district court should grant leave to amend even if no 23 request to amend the pleading was made, unless it determines that the pleading could not 24 [DKT. #S 14, 15, 18, AND 24] - 2 1 possibly be cured by the allegation of other facts.” Cook, Perkiss & Liehe v. N. Cal. Collection 2 Serv., 911 F.2d 242, 247 (9th Cir. 1990). However, where the facts are not in dispute, and the 3 sole issue is whether there is liability as a matter of substantive law, the court may deny leave to 4 amend. Albrecht v. Lund, 845 F.2d 193, 195–96 (9th Cir. 1988). 5 The underlying impetus for Myers’s pro se complaint appears to be that, despite the 6 foreclosure and the discharge, Flagstar continues to send him “mortgage statements” reflecting 7 that he owes the remainder of his mortgage. Flagstar has not otherwise sought to collect any 8 deficiency, and it seems to concede that Myers does not owe it: 9 10 11 Undersigned counsel has received confirmation from Flagstar that it will ensure any mail that might be otherwise directed to Plaintiff will not be delivered going forward. But regardless, even if mailings were improper, the Court should deny Plaintiff’s request for an injunction because the Bankruptcy Code preempts any state laws addressing Bankruptcy Court proceedings. 12 [Dkt. #27 at 2]. 13 Nevertheless, Myers has sued for far more than making the mortgage statements stop. He 14 claims that the foreclosure was wrongful and violated the Deed of Trust Act—the same claim 15 that was asserted and dismissed with prejudice in the 2011 case. He claims he should have been 16 permitted to modify his loan under the HAMP program—the same claim that was asserted and 17 dismissed with prejudice in the 2011 case. And he claims that the Note and Deed of Trust were 18 not valid or enforceable—the same claim that was asserted and dismissed with prejudice in the 19 2011 case. 20 The doctrine of res judicata precludes re-litigation of claims that were raised in a prior 21 action, or which could have been raised in a prior action. W. Radio Servs. Co. v. Glickman, 123 22 F.3d 1189, 1192 (9th Cir. 1997) (emphasis added). An action is barred by res judicata when an 23 earlier suit: (1) involved the same claim or cause of action as the later suit; (2) involved the 24 [DKT. #S 14, 15, 18, AND 24] - 3 1 same parties; and (3) reached a final judgment on the merits. Mpoyo v. Litton Electro-Optical 2 Sys., 430 F.3d 985, 987 (9th Cir. 2005). 3 The defendants are correct. Myers’s claims in this case were raised, or at the very least, 4 could have been raised, in the prior 2011 case. The case involves the same parties and the claims 5 were adjudicated against Myers on the merits. Myers’s DTA-, Note-, and HAMP-based claims 6 are barred by res judicata, and they are barred by his failure to restrain or enjoin the foreclosure 7 sale. See Frizzell v. Murray, 179 Wn.2d 301 (2013). These claims are DISMISSED with 8 prejudice. 9 Myers’s CPA claim based on the same conduct is similarly barred, and he is also 10 judicially estopped from asserting it based on his failure to list it as an asset for the benefit of his 11 creditors. See Hamilton v State Farm Fire & Cas. Co., 270 F.3d 778, 782 (9th Cir. 2001). 12 Myers’s CPA claims based on pre-discharge acts or omissions are also DISMISSED with 13 prejudice. 14 Myers’s “bad faith,” or breach of the duty of good faith and fair dealing, is not based on a 15 contract between the parties (at least not one other than his loan documents, which are barred). It 16 is not a free-floating claim; it must be tethered to some contract term between the parties. See 17 Badgett v. Sec. State Bank, 116 Wn.2d 563, 569 (1991). Myers’s claim that Flagstar “violated 18 the CFPB Consent Order” (to which he was not a party) is not actionable as a matter of law. 19 This claim too is DISMISSED with prejudice. 20 Myers has asked for leave to amend his compliant to address any deficiencies, and he has 21 filed what the Defendants claim is a late and futile amended complaint in an effort to state a 22 claim. The timeliness objection is over-ruled in light of the 12(b((6) standard described above. 23 Myers’s amended complaint, however, does not address the deficiencies described in the 24 [DKT. #S 14, 15, 18, AND 24] - 4 1 Defendants’ motions or in this order. It relates almost exclusively to events in the 2007-2011 2 time frame, and reiterates the note HAMP and Deed of Trust claims dismissed above. Myers 3 concedes that he seeks a “re-do” of the entire mortgage and foreclosure history: 4 5 6 7 8 9 10 [Amended Complaint, Dkt. #22 at 25] The Amended complaint is deficient and fails to state a 11 claim as a matter of law, and it is DISMISSED. Plaintiff Myers has not and cannot assert a 12 claim against Defendant MCT, or Defendant FNMA (and has not sought to do so). MCT’s 13 Motion to Dismiss [Dkt. #15] is GRANTED, and all of Myers’s claims against it are 14 DISMISSED with prejudice and without leave to amend. FNMA’s Motion to dismiss [Dkt. #14] 15 is GRANTED, and all of Myers’s claims against it are DISMISSED with prejudice and without 16 leave to amend. 17 However, where a pleading deficiency plausibly can, within the context of the existing 18 factual allegations, be cured, the corrective for a defective pleading is amendment, not dismissal. 19 Myers has not yet asserted an actionable claim against Flagstar, but it cannot be said that he 20 cannot possibly do so consistent with the facts alleged. Myers may file a second amended 21 complaint within 21 days of this order, addressing the deficiencies in his claims against Flagstar 22 noted in Flagstar’s Motion and in this Order. To be clear, none of Flagstar’s acts or omissions 23 24 [DKT. #S 14, 15, 18, AND 24] - 5 1 prior to the foreclosure sale are actionable, and any claim or complaint based on those allegations 2 will be promptly dismissed on the court’s own motion. 3 Defendant Flagstar’s Motion to Dismiss is GRANTED and Plaintiff Myers’s current 4 claims against it are DISMISSED with prejudice. Myers may file a second amended complaint 5 within 21 days of the date of this order addressing the deficiencies in his claim against defendant 6 Flagstar (only), as outlined in this order. If he does not, or if the second amended complaint 7 continues to fail to state a claim, the case will be dismissed with prejudice without further notice. 8 Myers’s Motions for emergency, mandatory relief [Dkt. #s 18 and 24] are DENIED. 9 IT IS SO ORDERED. 10 Dated this 13th day of August, 2015. 12 A 13 Ronald B. Leighton United States District Judge 11 14 15 16 17 18 19 20 21 22 23 24 [DKT. #S 14, 15, 18, AND 24] - 6
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