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Anderson v. Northwest Trustee Services, Inc.

United States District Court, D. Idaho

September 15, 2016

EAMONN J. ANDERSON, an individual, JULIE ANN ANDERSON, a third party intervener, Plaintiffs,
v.
NORTHWEST TRUSTEE SERVICES, INC.; U.S. BANK, NATIONAL ASSOCIATION, as Trustee for the Certificateholders of CFB Mortgage-Backed Pass-Through Certificates, Series 2004-AR4; BANK OF AMERICA, N.A.; OLWEN LOAN SERVICING, INC., Defendants.

          MEMORANDUM DECISION AND ORDER

          HONORABLE EDWARD J. LODGE, U.S. DISTRICT JUDGE

         Pending before the Court are Defendants Bank of America, N.A. (BANA) and U.S. Bank, N.A., as Trustee for the Certificateholders of CFB Mortgage-Backed Pass-Through Certificates, Series 2004-AR4 (US. Bank) Motion to Dismiss (Dkt. 47) and Defendant Robinson Tait, P.S. (Tait)'s Motion to Dismiss (Dkt. 54).

         Pro se Plaintiffs Eamonn J. Anderson and Julie A. Anderson (the Andersons) have responded to motions and Defendants have filed replies. 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.

         Factual Background

         The Andersons filed a Verified Complaint For: 1. Wrongful Foreclosure; 2. Violation of Federal Fair Debt Collection Practices Act, 15 U.S.C. § 1692e; 3. Quiet Title; 4. Civil RICO violations; 5. Civil Conspiracy; and 6. Declaratory Relief. Dkt. 1. The Court previously reviewed the Complaint assuming Plaintiffs were also requesting injunctive relief based on their Prayer for Relief. Dkt. 4. The request for injunctive relief was denied. Id. Plaintiffs claim Defendants illegally foreclosed on their property located at 17393 W. Summerfield Road, Post Falls, Idaho (the Property).

         Plaintiffs were allowed to file a First Amended Complaint on January 27, 2016. Dkt. 43. The First Amended Complaint sets forth three causes of action: 1. Wrongful Foreclosure against BANA and Tait; 2. Quiet Title against BANA; and 3. Declaratory Relief. Plaintiffs do not allege they were not in default under the terms of the Deed of Trust and Note when the Property was foreclosed, rather they claim the Deed of Trust and Note should be cancelled and considered null and void based on the unlawful foreclosure. The Plaintiffs also claim they were not properly notified of a change in the trustee.

         In 2004, Plaintiffs executed a Note and Deed of Trust reflecting a debt secured by the Property. The original lender was GreenPoint Mortgage Funding, Inc. (GreenPoint) and Mortgage Electronic Registration Systems, Inc. (MERS) was the nominee for GreenPoint and GreenPoint's successors and assigns. On May 29, 2012, MERS executed an Assignment of Deed of Trust transferring the beneficial interest to U.S. Bank. On May 12, 2012, Plaintiffs served BANA with a Rescission Notice pursuant to the Truth in Lending Act (TILA), 15 U.S.C. § 1601. BANA informed Plaintiffs the time to rescind the loan had expired.

         Plaintiffs filed suit in Washington state court regarding the foreclosure of the Property and such claims were dismissed with prejudice by the state court on or about May 30, 2014. See Bower Affidavit, Exhibits 1 and 2, Dkt. 47-5 and 47-6. The Court has previously ruled it will take judicial notice of the state court proceedings pursuant to Fed.R.Evid. 201(b). Dkt. 57.

         Plaintiffs then filed their first action in federal court regarding this Property. See Anderson et al v. Northwest Trustee Services Inc. et al, case 2:14-cv-485-EJL. (Plaintiff misstates in the First Amended Complaint that this other civil action was filed in November of 2015, but it was filed in November of 2014.) Plaintiffs voluntarily dismissed the 2014 case after a motion for dismiss was filed by Defendants.

         Now on June 12, 2015, Plaintiffs have filed this third action regarding the foreclosure of the Property claiming the Property was improperly foreclosed. The Trustee sale on the Property was held on June 26, 2015. Defendants have moved to dismiss based on a lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) and failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6).

         Standard of Review

         A defendant may move to dismiss a complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) in one of two ways. See Thornhill Publ'g Co., Inc. v. General Tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir. 1979)). The attack may be a "facial" one where the defendant attacks the sufficiency of the allegations supporting subject matter jurisdiction. Id. On the other hand, the defendant may instead launch a "factual" attack, "attacking the existence of subject matter jurisdiction in fact." Id. A "factual" attack made pursuant to Rule 12(b)(1) may be accompanied by extrinsic evidence. St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989); Trentacosta v. Frontier Pac. Aircraft Indus., 813 F.2d 1553, 1558 (9th Cir. 1987). "[N]o presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Thornhill, 594 F.2d at 733.

         A motion to dismiss brought under Federal Rule of Civil Procedure 12(b)(6) “tests the legal sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In deciding whether to grant a motion to dismiss, the court “accept[s] all factual allegations of the complaint as true and draw[s] all reasonable inferences” in the light most favorable to the nonmoving party. Rodriguez v. Panayiotou, 314 F.3d 979, 983 (9th Cir. 2002). To survive a motion to dismiss, a complaint must “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 674 (2009) (quoting Bell Atl. Corp v. Twombly, 550 U.S. 544, 570 (2007)).

         A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a “probability requirement, ” but it asks for more than a sheer possibility that defendant has acted unlawfully. Where a complaint pleads facts that are “merely consistent with” a defendant's liability, it “stops short ...


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