Dusbabek v. Bank of America et al, No. 3:2021cv05849 - Document 35 (W.D. Wash. 2022)
Court Description: ORDER granting 16 Motion to Dismiss; denying 27 Motion to Remand. Signed by Judge Robert J. Bryan. (JL) Paper copy sent to Plaintiff at Bainbridge Island address . Modified on 2/7/2022 (JL).
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Dusbabek v. Bank of America et al Doc. 35 Case 3:21-cv-05849-RJB Document 35 Filed 02/07/22 Page 1 of 7 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 8 9 10 11 12 13 14 PATTI DUSBABEK, CASE NO. 3:21-cv-05849-RJB Plaintiff, ORDER GRANTING DEFENDANT BANK OF AMERICA’S MOTION TO DISMISS AND DENYING PLAINITIFF’S MOTION TO REMAND v. BANK OF AMERICA, et al., Defendants. 15 16 This matter comes before the Court on Defendant Bank of America’s Motion to Dismiss 17 Complaint (Dkt. 16) and Plaintiff’s Motion to Remand (Dkt. 27). The Court has considered the 18 documents filed in support of and in opposition to these motions and the remaining file. For the 19 reasons set forth in this order, Bank of America’s Motion to Dismiss should be granted, but 20 Plaintiff should be given an opportunity to file an amended complaint. Plaintiff’s Motion to 21 Remand should be denied. 22 23 I. BACKGROUND Plaintiff, who is proceeding pro se, filed the pending civil complaint in Kitsap County 24 ORDER GRANTING DEFENDANT BANK OF AMERICA’S MOTION TO DISMISS AND DENYING PLAINITIFF’S MOTION TO REMAND - 1 Dockets.Justia.com Case 3:21-cv-05849-RJB Document 35 Filed 02/07/22 Page 2 of 7 1 Superior Court on November 2, 2021. Defendant Specialized Loan Services (SLS) filed notice 2 of removal on November 18, 2021, based on diversity and federal question jurisdiction. Dkt. 1. 3 Plaintiff’s allegations are difficult to understand, but she appears to claim that the foreclosure 4 auction of her land is illegal. Dkts. 1-2 and 24. She indicates that the auction is illegal either 5 because she paid her mortgage loans and her property has nonetheless gone into foreclosure, 6 because Defendants did not have the right to collect payments, or both. See id. Plaintiff filed 7 what appears to be an amended complaint on January 12, 2022, but it was not properly signed. 8 Dkts. 24 and 25. After receiving notice of the improper signature, she returned a signed copy on 9 February 2, 2022. Dkt. 33. 10 11 12 Bank of America filed a request for judicial notice with its motion to dismiss. Dkt. 16-1. The documents to be judicially noted are: 13 14 Office No. 200212240029; 15 16 an Assignment of Deed of Trust recorded on May 19, 2017, under Kitsap County Auditor’s Office No. 201705190183; 17 18 a Deed of Trust recorded on December 24, 2002, under Kitsap County Recorder’s a Notice of Trustee’s Sale recorded on August 12, 2021, under Kitsap County Auditor’s Office No. 202108120181; a Complaint for Contract Fraud, Extortion, Falsified Servicing filed of February 1, 19 2021, in Kitsap County Superior Court Case No. 21-2-01150-19 entitled Patti 20 Disbabek v. Bank of America, et al., (the “Prior Action”); 21 22 23 the Motion to Dismiss, or, alternatively, Motion for a More Definite Statement filed on February 22, 2021, in the Prior Action; an order entered on March 5, 2021, in the Prior Action; 24 ORDER GRANTING DEFENDANT BANK OF AMERICA’S MOTION TO DISMISS AND DENYING PLAINITIFF’S MOTION TO REMAND - 2 Case 3:21-cv-05849-RJB Document 35 Filed 02/07/22 Page 3 of 7 1 Plaintiff’s response to that order filed on March 16, 2021; 2 Bank of America’s Motion to Dismiss for Failure to Timely Provide a More 3 4 Definite filed on June 29, 2021; and the order granting Bank of America’s Motion to Dismiss on July 9, 2021. 5 These documents are appropriate for judicial notice because they are official government 6 records “whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2). It appears 7 from these documents that Plaintiff received a home loan from America’s Wholesale Lender on 8 December 17, 2002, Dkt. 16-1 at 16; her loan was assigned to Mortgage Electronic Registration 9 Systems, Inc. on May 19, 2017, id. at 19; and Quality Loan Services Corporation of Washington 10 issued notice that it would be selling her property at auction on December 27, 2021, for failure to 11 pay $134,335.42 on her loan, id. at 23. 12 It also appears that Plaintiff filed a lawsuit against Bank of America and SLS in Kitsap 13 County Superior Court in February 2020, the Prior Action, in which she made similar allegations 14 to those alleged in this matter. Dkt. 16-1 at 27–31. Bank of America moved to dismiss her 15 complaint, or, in the alternative, provide a more definite statement. Id. at 51. The Kitsap County 16 Superior Court denied Bank of America’s motion to dismiss and required Plaintiff to file an 17 amended complaint by a given date and time. Id. at 72. The Court informed Plaintiff that failure 18 to do so may renew Bank of America’s motion to dismiss. Plaintiff does not appear to have filed 19 an amended complaint, and that court issued an order granting Bank of America’s motion to 20 dismiss and dismissing Plaintiff’s claim with prejudice on July 9, 2021. Id. at 83. 21 Also pending in this matter, is a motion filed by Plaintiff that the Court has construed as a 22 motion to remand to Kitsap County Superior Court (Dkt. 27). In that motion, Plaintiff “requests 23 this case be transferred back to KC Superior Court for a ruling,” but the content of that motion 24 ORDER GRANTING DEFENDANT BANK OF AMERICA’S MOTION TO DISMISS AND DENYING PLAINITIFF’S MOTION TO REMAND - 3 Case 3:21-cv-05849-RJB Document 35 Filed 02/07/22 Page 4 of 7 1 primarily reiterates the general claims from her complaints – that the auction of her land is illegal 2 and Defendants did not have the right to collect on her loan. See Dkt. 27. 3 II. DISCUSSION Defendant Bank of America moves to dismiss Plaintiff’s complaint on the grounds that 4 5 the claims are deficient and barred by res judicata. Dkt. 16 at 4. Though Plaintiff filed an 6 amended complaint, which did not originally but now does include a proper signature (Dkt. 33), 7 after Bank of America moved to dismiss Plaintiff’s original complaint, it is proper to rule on 8 Bank of America’s motion to dismiss because both complaints raise substantially the same 9 issues. 10 A. WARNING TO PRO SE PLAINTIFF REGARDING MOTION TO DISMISS 11 Plaintiff is warned that “[p]ro se litigants must follow the same rules of procedure that 12 govern other litigants,” Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381 (9th Cir. 1997), 13 including the Federal Rules of Civil Procedure and the Local Civil Rules of the Western District 14 of Washington (“Local Rules”). Plaintiff is further reminded that although pro se pleadings are 15 held to a “less stringent standard than formal pleadings drafted by lawyers,” they still must meet 16 the requirements of the rules. Haines v. Kerner, 404 U.S. 519, 520 (1972). 17 Pursuant to Federal Rule of Civil Procedure 12(b), a party may assert the following 18 defenses in a motion to dismiss: “(1) lack of subject matter jurisdiction; (2) lack of personal 19 jurisdiction; (3) improper venue; (4) insufficient process; (5) insufficient service of process; (6) 20 failure to state a claim upon which relief can be granted; and (7) failure to join a party under 21 Rule 19.” 22 23 Defendant Bank of American brings the pending motion to dismiss under Rule 12(b)(6) for failure to state a claim for which relief can be granted. Dkt. 16. 24 ORDER GRANTING DEFENDANT BANK OF AMERICA’S MOTION TO DISMISS AND DENYING PLAINITIFF’S MOTION TO REMAND - 4 Case 3:21-cv-05849-RJB Document 35 Filed 02/07/22 Page 5 of 7 1 B. STANDARD FOR MOTION TO DISMISS UNDER RULE 12(b)(6) 2 Rule12(b)(6) motions to dismiss may be based on either the lack of a cognizable legal 3 theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. 4 Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). Material allegations are taken as 5 admitted and the complaint is construed in the plaintiff's favor. Keniston v. Roberts, 717 F.2d 6 1295 (9th Cir. 1983). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does 7 not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his 8 entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the 9 elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554-55 10 (2007) (internal citations omitted). “Factual allegations must be enough to raise a right to relief 11 above the speculative level, on the assumption that all the allegations in the complaint are true 12 (even if doubtful in fact).” Id. at 555. The complaint must allege “enough facts to state a claim 13 to relief that is plausible on its face.” Id. at 547. 14 C. RULING ON MOTION TO DISMISS 15 Both Plaintiff’s original and her amended complaints are too difficult to understand to 16 determine whether she states a claim or, as Bank of America alleges, Bank of America was in no 17 way involved in her foreclosure proceedings and her claim is barred by res judicata. 18 Under Federal Rule of Civil Procedure 8, a complaint must contain “a short and plain 19 statement” of the grounds for relief. Furthermore, an amended complaint supersedes the 20 original, so the original may be treated as if it was never filed. See Lacey v. Maricopa Cnty., 693 21 F.3d 896, 927 (9th Cir. 2012). 22 23 Plaintiff’s pleadings are long and difficult to understand. It is not clear from Plaintiff’s filings how her claims relate to Bank of America. For example, whether Bank of America 24 ORDER GRANTING DEFENDANT BANK OF AMERICA’S MOTION TO DISMISS AND DENYING PLAINITIFF’S MOTION TO REMAND - 5 Case 3:21-cv-05849-RJB Document 35 Filed 02/07/22 Page 6 of 7 1 received payments from her or was involved in the foreclosure proceedings on her land. Bank of 2 America’s motion to dismiss should be granted, but Plaintiff should be given an opportunity to 3 file an amended complaint because she is proceeding pro se and it is not clear that amendment 4 would be futile. The amended complaint, if any, must contain a short and plain statement of her 5 claims to comply with Federal Rule of Civil Procedure 8 and to help the Court get a basic 6 understanding of what happened. Plaintiff may file an amended complaint on or before 7 March 25, 2022. Failure to file an amended complaint that complies with the Federal Rules of 8 Civil Procedure, notably Rules 8 and 12(b)(6), may result in dismissal of this matter. 9 10 11 D. PLAINTIFF’S MOTION TO REMAND Remand to state court is appropriate either for lack of subject matter jurisdiction or for “any defect in removal procedure.” 28 U.S.C. § 1447(c). 12 Plaintiff’s motion to remand does not state grounds for remand other than “P[laintiff] 13 requests this case be transferred back to KC Superior Court . . . .” Dkt. 27 at 1. Both subject 14 matter jurisdiction and the removal procedure appear from the complaint and notice of removal 15 to be proper, so her motion (Dkt. 27) should be denied. 16 17 18 III. Therefore, it is hereby ORDERED that: 19 20 21 22 ORDER Bank of America’s Motion to Dismiss (Dkt. 16) IS GRANTED, and plaintiff may file an amended complaint on or before March 25, 2022; Plaintiff’s Motion to Remand (Dkt. 27) IS DENIED. The Clerk is directed to send uncertified copies of this Order to all counsel of record and to any party appearing pro se at said party’s last known address. 23 24 ORDER GRANTING DEFENDANT BANK OF AMERICA’S MOTION TO DISMISS AND DENYING PLAINITIFF’S MOTION TO REMAND - 6 Case 3:21-cv-05849-RJB Document 35 Filed 02/07/22 Page 7 of 7 1 2 3 4 Dated this 7th day of February, 2022. A ROBERT J. BRYAN United States District Judge 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ORDER GRANTING DEFENDANT BANK OF AMERICA’S MOTION TO DISMISS AND DENYING PLAINITIFF’S MOTION TO REMAND - 7
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