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Clark v. Bank of America, N.A.

United States District Court, D. Idaho

March 27, 2015

SHEILA CLARK, Plaintiff,
BANK OF AMERICA N.A., Defendant.


RONALD E. BUSH, Magistrate Judge.

Pending before the Court are Defendant's Motion to Dismiss (Dkt. 4) and Motion for Judicial Notice (Dkt. 5), and Plaintiff's Motion for Temporary Restraining Order/Preliminary Injunction (Dkt. 13). Having carefully considered the record, and otherwise being fully advised, the Court enters the following Memorandum Decision and Order:


This case concerns a $343, 850 mortgage loan Plaintiff Sheila Clark ("Clark") used to purchase property. Compl., ¶ 2. Clark stopped making payments under the terms of the loan and it went into default. Clark alleges that she applied for, and received, a "work out package" in 2009 and then a permanent loan modification in January 2010 from Defendant Bank of America N.A. ("the Bank"). Compl., ¶¶ 6, 12-13. She asserts in her briefing that the Bank "revok[ed] the terms" of the loan modification in August of 2012 and declared her "to be in default despite her current payment status" under the modification agreement. Resp., p. 1 (Dkt. 9). Although Clark made some payments under the January 2010 modification, she stopped making payments in September of 2012. Compl. at ¶¶ 18-35.

Clark's Complaint alleges that the Bank failed to comply with the terms of the loan modification. Id. ¶¶ 19-44. She filed the instant action on June 13, 2014, asserting the following claims: breach of contract; fraud; breach of the implied covenant of good faith and fair dealing; equitable estoppel; and intentional infliction of severe emotional distress. Compl., pp. 6-8). The Bank seeks to dismiss all of Clark's claims.


A. Motion for Judicial Notice

The Bank requests that the Court take judicial notice of several documents. (Dkt. 5). Generally, with respect to Rule 12(b)(6) motions, the Court may not consider any evidence contained outside the pleadings without converting the motion to one for summary judgment under Rule 56 and allowing the non-moving party an opportunity to respond. See Fed.R.Civ.P. 12(b); United States v. Ritchie, 342 F.3d 903, 907-08 (9th Cir. 2003). Still, the Court may take judicial notice "of the records of state agencies and other undisputed matters of public record" without transforming the motions to dismiss into motions for summary judgment. Disabled Rights Action Comm. v. Las Vegas Events, Inc., 375 F.3d 861, 866 (9th Cir. 2004). See also Fed.R.Evid. 201(b); Harris v. Cnty. of Orange, 682 F.3d 1126, 1131-32 (9th Cir. 2012). The documents submitted here fall within the categories of documents appropriate for judicial notice. Additionally, Plaintiff has not objected to the motion. Accordingly, the Court hereby grants Defendant's Motion for Judicial Notice and will consider the Affidavit of Amber N. Dina, and the documents attached thereto, filed in support of the Bank's Motion to Dismiss. (Dkt. 5, Atts. 1-3).

B. Motion to Dismiss

The Bank seeks dismissal under Federal Rule of Civil Procedure 12(b)(6) for Clark's alleged failure to state a claim for relief.

1. Legal Standards

Rule 12(b)(6) motions assert that the plaintiff has failed "to state a claim upon which relief can be granted." What it takes to state a claim depends on the type of claim. "In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake." Fed.R.Civ.P. 9(b). Other causes of action require only "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). The "short and plain" standard is satisfied if the plaintiff's allegations, taken as true, "nudge[] their claims across the line from conceivable to plausible." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). "Detailed factual allegations" are unnecessary, but "unadorned, the-defendant-unlawfully-harmed-me accusation[s]" are inadequate. Ashcroft v. Iqbal, 556 U.S. 662, 677-78, (2009).

In considering the Bank's Motion to Dismiss, the Court has considered that Clark is pro se and Rule 15's liberal amendment policy. See Fed.R.Civ.P. 15(a) (providing that leave to amend "shall be freely given when justice so requires"). Where a plaintiff is proceeding pro se, the Complaint must be liberally construed and she must be given the benefit of any doubt. See Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). The pro se plaintiff nonetheless must allege a minimum factual and legal basis for each claim that is sufficient to give the defendant fair notice of what the claims are and the grounds upon which they rest. Brazil v. United States Department of the Navy, 66 F.3d 193, 199 (9th Cir. 1995). Finally, if the Complaint can be saved by amendment, then the plaintiff should be notified of the deficiencies and provided an opportunity to amend. See Jackson v. Carey, 353 F.3d 750, 758 (9th Cir. 2003).

2. Clark's Claims Arose After Her Bankruptcy Discharge

The Bank argues that Clark lacks standing to assert any claims that arose before she filed her voluntary petition for Chapter 7 bankruptcy on October 21, 2009 because she did not list those claims on her petition and her claims are now part of the bankruptcy estate.[1] See Def.'s Mem., pp.5-6 (Dkt. 4-1); Dina Aff., Ex. A, p.3 (Dkt. 5-2).

Clark first applied to the Bank for a loan modification on March 16, 2009 and she made payments on that modification through October of 2009, when a foreclosure sale was scheduled. Compl. ¶¶ 4-6, 9. The sale was canceled and Clark allegedly entered a permanent loan modification agreement on January 19, 2010, which she executed and returned to the Bank on January 29, 2010. Id. ¶¶ 11-13. Her claims in this case, however, center around her allegations that the Bank revoked the January 2010 loan modification terms by declaring a large loan delinquency and default in August of 2012. Id. ¶¶ 29-44. See also, e.g., Pl.'s Resp., p. 3.[2]

Although Clark alleges a nervous breakdown occurring in September of 2009 related to the first scheduled foreclosure, her claims primarily relate to the modification agreement she alleges she entered with the Bank on or about January 29, 2010, well after she filed her bankruptcy petition (and ten days after her bankruptcy discharge). See Compl., ¶¶ 46, 52, 57, 60; Dina Aff., Ex. B. Moreover, Clark confirmed in her response brief that all her claims accrued post-bankruptcy, when the Bank "abrogated" the modification agreement in 2012. Resp., pp. 2-3, 7 (Dkt. 9). In short, none of Clark's claims (as refined through her responsive briefing) had advanced to a point where Clark could present those claims in Court at the time she entered her bankruptcy proceedings or at the time she obtained the discharge in bankruptcy. However, to the extent Clark seeks damages or to raise a claim for emotional distress based solely on conduct occurring before January 19, 2010, the ...

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