United States District Court, D. Idaho
AND RECOMMENDATION RE: DEFENDANT'S MOTION TO DISMISS
(DOCKET NO. 13) MEMORANDUM DECISION AND ORDER RE:
PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION (DOCKET NO.
4) PLAINTIFFS' MOTION TO STRIKE DEFENDANT'S REQUEST
TO TAKE JUDICIAL NOTICE FOR LACK OF RELEVANCY (DOCKET NO.
Honorable Ronald E. Bush Chief U.S., Magistrate Judge.
pending before the Court are the following motions: (1)
Defendant's Motion to Dismiss (Docket No. 13); (2)
Plaintiffs' Motion for Preliminary Injunction (Docket No.
4); and (3) Plaintiffs' Motion to Strike Defendant's
Request to Take Judicial Notice for Lack of Relevancy (Docket
No. 17). Having carefully considered the record and otherwise
being fully advised, the undersigned enters the following
Report and Recommendation as to Defendant's Motion to
Dismiss, and Memorandum Decision and Order as to
Plaintiffs' Motion for Preliminary Injunction and Motion
or around August 30, 2005, in consideration for a mortgage
loan, Plaintiffs Richard William Breinholt and Susan Lyn
Breinholt (“Breinholts” or
“Plaintiffs”) executed a promissory note
(“Note”). The Note was secured by a Deed of Trust
on the real property located at 1976 East Star Lane,
Meridian, Idaho 83642 (“Property”). Plaintiffs
defaulted on their Note and Deed of Trust, and the Property
was subsequently sold at a non-judicial foreclosure sale on
or about May 21, 2009. See Tait Aff. at ¶¶
2-3, attached as Ex. A to Request for Judicial Notice
(“RFJN”) (Docket No. 11, Att. 1).
June 17, 2009, Plaintiffs (represented by an attorney)
brought suit in Idaho state court, contesting the validity of
the non-judicial foreclosure (“2009 State Court
Action”). Pursuant to a September 13, 2010
stipulation, the 2009 State Court Action was ultimately
dismissed with prejudice on or around October 5, 2010.
See Order of Dismissal with Prejudice, attached as
Ex. B to RFJN (Docket No. 11, Att. 2).
September 10, 2010, Plaintiffs (now representing themselves)
filed a similar action in this Court, also contesting the
validity of the non-judicial foreclosure (“2010 Federal
Action”). On February 18, 2011, U.S. District Judge
Edward J. Lodge dismissed the 2010 Federal Action based,
primarily, on the doctrine of res judicata.
See 2/18/11 MDO, p. 7, attached as Ex. D to RFJN
(Docket No. 11, Att. 4) (“The Court finds the three
requirements of res judicata are satisfied in this
action: party identity, identity of issues, and a final
judgment. Any new allegations or claims of recovery could
have and should have been raised by Plaintiffs in their state
court action [(the 2009 State Court Action)].”)
(internal citations omitted). Judge Lodge also dismissed
Plaintiffs' TILA claims as barred by the applicable
statute of limitations, and dismissed Plaintiffs' fraud,
breach of fiduciary duty, and Fair Dept Collection Practices
Act (“FDCPA”) claims because the Plaintiffs'
default on the underlying Note was undisputed. See
id. (“Further, any claims pursuant to TILA are
barred by the applicable statute of limitations. As to any
claims in the Complaint for fraud, breach of fiduciary duty,
or violation of Fair Debt Collections Act, the Court finds
Plaintiffs have not provided legal authority to be able to
recover on these claims since the TILA claims are time barred
and the Breinholts' default on the underlying note for
the Star Lane property is undisputed.”) (internal
Trustee's Deed on the Property was recorded on April 11,
2011 in the Ada County Recorder's Office. See
Tait Aff. at ¶ 4, attached as Ex. A to RFJN (Docket No.
11, Att. 1). A Notice to Quit was served on Plaintiffs on May
3, 2011. See id. Because Plaintiffs failed to vacate
the Property within three days as directed in the Notice to
Quit, on May 27, 2011, Deutsche Bank National Trust Company
(as Trustee for the Residential Asset Securitization Trust
2005-A15, Mortgage Pass-Through Certificates, Series 2005-O
Under the Pooling and Servicing Agreement Dated December 1,
2005) (“Trust”) brought a civil action in Idaho
state court to evict Plaintiffs from the Property
(“2011 Eviction Action”). See id. at
¶¶ 4-5; see also Docket for Case No.
CV-OC-2011-10414, attached as Ex. E to RFJN (Docket No. 11,
Att. 5). On November 29, 2011, Fourth Judicial District
Magistrate Judge Christopher Bieter granted the Trust's
Motion for Summary Judgment in the state court 2011 Eviction
Action, and later entered a Judgment and Order of Eviction on
October 1, 2012. See Tait Aff. at ¶ 6, attached
as Ex. A to RFJN (Docket No. 11, Att. 1) (citing to 10/1/12
J. and Order, attached as Ex. B thereto).
Plaintiffs appealed Judge Bieter's decision to the state
district court and, on October 1, 2012, filed a Notice of Lis
Pendens. See id. at ¶ 7. On February 13,
2012, District Judge Kathryn A. Sticklin of the state court
upheld Judge Bieter's Judgment and Order of Eviction.
See id. (citing to 2/13/12 Mem. Dec. and Order,
attached as Ex. D thereto) (though striking Plaintiffs'
brief, concluding nonetheless: “The magistrate did not
err in concluding that the Breinholts are barred by the
doctrine of res judicata from relitigating their claims in
this case. As noted by [(the Trust)], ‘[i]n the related
state court [(2009 State Court Action)] and federal court
[(2010 Federal Action)] actions, the Breinholts asserted
claims that are identical to the arguments and/or claims
raised in their Answer to [(the Trust's)] Complaint [in
this case [(2011 Eviction Action)]] and again raised here on
appeal. The courts have dismissed all of the claims contained
in the prior actions with prejudice.'”)).
August 8, 2012, Plaintiffs filed a Notice of Appeal with the
Ninth Circuit Court of Appeals, appealing the 2010 Federal
Action. See Not. of Appeal, attached as Ex. H to
RFJN (Docket No. 11, Att. 8). On November 7, 2016, the Ninth
Circuit affirmed Judge Lodge's dismissal of
Plaintiffs' claims in the 2010 Federal Action, reasoning:
The district court properly dismissed the Breinholts'
claims against Aegis Wholesale Corporation, OneWest Bank,
FSB, Tri-County Process Serving LLC . . ., Regional Trustee
Services Corporation, and Pioneer Lender Trustee Services,
LLC, as barred by the doctrine of res judicata because the
Breinholts' claims were raised, or could have been
raised, in a prior state court action between the parties or
their privies that resulted in a final judgment on the
The district court properly dismissed the Breinholts'
claims against Mortgage Electronic Registration Systems, Inc.
. . ., TitleOne Corporation, Jennifer Tait, and Robinson
Tait, P.S. because the Breinholts failed to allege facts
sufficient to state any plausible claim for relief.
11/7/16 Mem., pp. 2-3, attached as Ex. I to RFJN (Docket No.
11, Att. 9).
the meantime, Plaintiffs appealed Judge Sticklin's
February 13, 2012 decision in the 2011 Eviction Action.
See Tait Aff. at ¶ 8, attached as Ex. A to RFJN
(Docket No. 11, Att. 1).,  On December 3, 2014 (following the
resolution of several procedural/jurisdictional issues
(see id. at ¶¶ 8-11)), the Idaho Court of
Appeals affirmed Judge Sticklin's order affirming Judge
Bieter's grant of summary judgment in favor of the Trust.
See Deutsche Bank Nat. Trust Co. v. Breinholt, 2014
WL 6804502 (Id. Ct. App. 2014).
June 16, 2016, the Trust filed motions in the 2011 Eviction
Action to lift the January 30, 2012 (renewed on May 15, 2013)
stay on eviction proceedings, to disburse funds in the
Court's registry to the Trust, to issue a writ of
restitution, and to expunge the Lis Pendens recorded with the
Ada County Recorder. See Mot., attached as Ex. F to
RFJN (Docket No. 11, Att. 6). On August 17, 2016, Judge
Bieter lifted the May 15, 2013 stay, ordered that all monies
deposited in the Court's registry be released to the
Trust, and that a writ of restitution of restitution be
issued restoring possession of the Property to the Trust.
See 8/17/16 Order, attached as Ex. G to RFJN (Docket
No. 11, Att. 7).
August 25, 2016, Plaintiffs appealed Judge Bieter's
August 17, 2016 order to the state district court.
See Ex. J to RFJN (Docket No. 11, Att.
October 11, 2016, Plaintiffs filed the instant action in this
Court against Defendant Ocwen Loan Services, LLC
“Defendant”). Within their Complaint,
Plaintiffs again generally challenge the validity of the
non-judicial foreclosure sale of the Property, alongside
oblique allegations that they have attempted “to bring
the house into honor but that [Ocwen] ha[s] gone through the
motions of modifying, not holding the papered sale, and bad
faith bargaining to modify/REO [(real estate owned)]/DPO
[(discounted payoff)] only to have the deal changed time and
time again and having the attorneys changed every time the
deal seems to be finalized.” Compl., ¶ 48 (Docket
No. 1). Plaintiffs then assert the following claims against
Ocwen: (1) Violations of the Truth in Lending Action (First
Cause of Action); (2) Violations of the Real Estate
Settlement Procedures Action (mistakenly identified as the
Third Cause of Action); (3) Violations of the Consumer
Protection Act (mistakenly identified as the Fourth Cause of
Action); and (4) Intentional Infliction of Emotional Distress
(mistakenly identified as the Fifth Cause of Action). See
id. at ¶¶ 57-72.
the pending Motion to Dismiss, Ocwen seeks to dismiss each of
these claims and, correspondingly, this action -
specifically, Ocwen argues that each of Plaintiffs'
claims (1) is barred by the doctrine of res judicata
or, alternatively, (2) fails as a matter of law. See
generally Mem. in Supp. of MTD (Docket No. 13, Att. 1).
Motion to Dismiss Standard
8(a)(2) requires “a short and plain statement of the
claim showing that the pleader is entitled to relief, ”
in order to give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
While a complaint attached by an FRCP 12(b)(6) motion to
dismiss “does not need detailed factual allegations,
” it must set forth “more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Id. at 555. 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.”
Id. at 570. 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. See id. at 556. The
plausibility standard is not akin to a “probability
requirement, ” but it asks for more than a sheer
possibility that a defendant has acted unlawfully.
Id. Where a complaint pleads facts that are
“merely consistent with” a defendant's
liability, it “stops short of the line between
possibility and plausibility of ‘entitlement to
relief.'” Id. at 557.
Supreme Court has identified two “working
principles” that underlie the decision in
Twombly. See Ashcroft v. Iqbal, 556 U.S.
662, 663 (2009). First, the tenet that a court must accept as
true all of the allegations contained in a complaint is
inapplicable to legal conclusions. See id.
“[FRCP] 8 marks a notable and generous departure from
the hyper-technical, code-pleading regime of a prior era, but
it does not unlock the doors of discovery for a plaintiff
armed with nothing more than conclusions.” Id.
at 678-79. Second, only a complaint that states a plausible
claim for relief survives a motion to dismiss. See
id. at 679. “Determining whether a complaint
states a plausible claim for relief will . . . be a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.”
paradoxically, providing too much in the complaint may also
be fatal to a plaintiff. For instance, dismissal may be
appropriate when the plaintiff's allegations disclose
some absolute defense or other bar to recovery. See
Weisbuch v. Cnty. of LA, 119 F.3d 778, 783, n.1
(9th Cir. 1997) (stating that “[i]f the
pleadings establish facts compelling a decision one way, that