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Richard W. Breinholt, Susan L. Breinholt v. Popular Warehouse Lender; Title One Corp D.B.A. Priority Financial

February 18, 2011

RICHARD W. BREINHOLT, SUSAN L. BREINHOLT, AKA THE BREINHOLT FAMILY FOUNDATION, PLAINTIFFS,
v.
POPULAR WAREHOUSE LENDER; TITLE ONE CORP D.B.A. PRIORITY FINANCIAL INC DBA PRIORITY FUNDING, TRANSNATION TITLE & ESCROW; ONEWEST BANK; INDYMAC FEDERAL BANK; MORTGAGE ELECTRONIC REGISTRATION SERVICES (MERS); TRI-COUNTY PROCESS SERVING; PIONEER LENDER TRUSTEE SERVICES LLC DBA; REGIONAL TRUSTEES SERVICES CORP; ADA COUNTY SHERIFF, AND DEPUTIES; TONYA REEVES, ESCROW OFFICER, FIDELITY NATIONAL TITLE COMPANY OF IDAHO; PETER FROST, INDYMAC FEDERAL BANK, LOSS, MITIGATION; EDWARD CHOI, REGIONAL TRUSTEE SERVICES; ERICA JOHNSON-SECK, VICE PRESIDENT; ONEWEST BANK; BECKY NORTH, VICE PRESIDENT MERS AND INDYMAC FEDERAL BANK; UNKNOWN 1-TO-20 JOHN&JANE DOES DEFENDANTS.



The opinion of the court was delivered by: U. S. District Judge Honorable Edward J. Lodge

MEMORANDUM ORDER

Pending before the Court in the above-entitled matter are numerous motions filed by the parties. Having fully reviewed the record, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, this matter shall be decided on the record before this Court without oral argument.

Background

Plaintiffs Richard Breinholt and Susan Breinholt (collectively referred to as "the Breinholts") and the Breinholt Family Foundation filed their complaint on November 26, 2010 against the following defendants: Popular Warehouse Lender, Title One Corp d.b.a. Priority Financial Inc. dba Priority Funding, Transnation Title & Escrow, OneWest Bank, Indymac Federal Bank, Mortgage Electronic Registration Systems ("MERS"), Tri-County Process Serving, Pioneer Lender Trustee Services LLC, dba, Regional Trustee Services Corp, Ada County Sheriff and Deputies, Tonya Reeves (escrow officer for Fidelity National Title Company of Idaho), Peter Frost (Indymac Federal Bank. Loss Mitigation), Edward Choi (employee of Regional Trustee Services), Erica Johnson-Seck (Vice President OneWest Bank), Becky North (Vice President MERS and Indymac Federal Bank) and John Does. To date, not all the Defendants have appeared.

The Breinholts filed this action as pro se litigants. The Breinholt Family Foundation is listed as a plaintiff but in reviewing the Complaint, the Court finds no allegations related to actions or inactions committed by the Defendants against the Breinholt Family Trust. Moreover, the Breinholt Family Foundation is an entity and cannot appear pro se, but must be represented by an attorney. Dist. Idaho Loc. Civ. R. 83.4:

(d) Appearance by Entities Other Than an Individual. Whenever an entity other than an individual desires or is required to make an appearance in this Court, the appearance shall be made only by an attorney of the bar of this Court or an attorney permitted to practice under these rules.

The Court has checked its record of attorneys admitted to practice in the District of Idaho and neither Richard or Susan Breinholt are licensed attorneys admitted to practice in federal court in Idaho. Therefore, the Court will give the Breinholt Family Foundation twenty (20) days to retain counsel to represent its interests in this litigation. Failure for counsel to appear on behalf of the Breinholt Family Foundation will result in the dismissal of its claims without prejudice.

It appears from the pleadings the Complaint appears to allege a violation of the Fair Debt Collections Act as well as other federal foreclosure statues. The Breinholts allege they built the residence at 2575 North Tanglerose Place, Eagle, Idaho in May 2007 resulting in a mortgage on the real property in the amount of approximately $1,385,000. Due to the failure of certain investments, the Plaintiffs were unable to make the requisite payments on their loan in November of 2007. Plaintiffs allege they tried to arrange a loan modification and get their lender to approve short sale offers to purchase the property, but the lender sold the property to OneWest Bank for approximately $576,000.

Plaintiffs claim in 2009 they discovered certain irregularities regarding the loan and the sale and claim the actions of the Defendants caused Plaintiffs to suffer economic losses even before the housing market crash occurred. Specifically, Plaintiffs appear to claim Defendants breached fiduciary duties, violated the Truth in Lending Act ("TILA"), violated Idaho deeds of trust act, violated the Real Estate Settlement Procedures Act ("RESPA"), the Consumer Protection Act, caused intentional infliction of emotional distress, caused negligent infliction of emotional distress, misrepresentation by trustee, and unlawful ejection from the real property.

Defendants Title One Corporation, OneWest Bank, Transnation Title & Escrow, Inc., Tri-County Process Serving, LLC, and Erica Johnston-Seck have all filed motions to dismiss the Complaint against them. Plaintiffs did not file a reply to any of the motions to dismiss. Plaintiffs did file a motion to stay the action on February 3, 2011 due to a motion to consolidate this case with the Breinholts other federal district court case, civil case no. 10-466-S-EJL.

Standard of Review for Motions to Dismiss A motion to dismiss should not be granted "unless it appears beyond doubt that Plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Clegg v. Cult Awareness Network, 18 F. 3d 752, 754 (9th Cir. 1994). All allegations of material fact in the complaint are taken as true and construed in the light most favorable to the non-moving party. See Buckey v. County of Los Angeles, 968 F.2d 791, 794 (9th Cir. 1992). The Ninth Circuit has held that "in dismissals for failure to state a claim, a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Cook, Perkiss and Liehe, Inc. v. Northern California Collection Service, Inc., 911 F.2d 242, 247 (9th Cir. 1990). While amendments are liberally permitted under Rule 15(a), the district court may deny leave to amend when there has been an undue delay in bringing the motion, and the opposing party would be unfairly prejudiced by the amendments. See United States v. Pend Oreille Public Utility Dist. No. 1, 28 F.3d 1544, 1552-53 (9th Cir. 1994).

Generally, the Court may not consider any material beyond the pleadings in ruling on a motion to dismiss under Fed. R. Civ. P. 12(b)(6). See Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). If materials outside the pleadings are considered, the motion is converted to a motion for summary judgment governed by Fed. R. Civ. P. 56. See Jacobsen v. AEG Capital Corp., 50 F.3d 1493, 1496 (9th Cir. 1995).

But as Branch makes clear, there are times when documents other than the pleadings can be considered without converting a motion to dismiss into a motion for summary judgment. "[D]ocuments whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss." Branch, 14 F.3d at 453.

The Court's review of the motion to dismiss is undertaken with an eye on Ninth Circuit standards regarding pro se litigants. Tucker v. Carlson, 925 F.2d 330 (9th Cir. 1991). However, the Court reminds the Plaintiffs that pro se litigants are held to same procedural rules as counseled litigants. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). "Persons appearing without attorneys are required to become familiar with and comply with all Local Rules of this District, as well as the Federal Rules of Civil and /or Criminal ...


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