United States District Court, D. Idaho
EAMONN J. ANDERSON, an individual, JULIE ANN ANDERSON, a third party intervener, Plaintiffs,
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
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).
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
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
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.
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
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.
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.
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).
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
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)).
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 ...