Opinion
CASE NO. C07-990RSM.
February 1, 2008
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS AND GRANTING DEFENDANTS' REQUEST TO STRIKE PLAINTIFF'S NOTICE OF LIS PENDENS
I. INTRODUCTION
This matter comes before the Court on defendants Roosevelt and Carolyn Hubbard's ("defendants Hubbard") Motion to Dismiss (Dkt. #17). Defendant Windermere Realty Estate/South, Inc. ("Windermere") joins the Motion to Dismiss in its entirety. (Dkt. #24). Defendants John Klein ("Klein"), Standard Trustee Service Company of Washington ("Standard Trustee"), and STD Corp. ("STD") join a portion of the Motion to Dismiss. (Dkts. #19 and #27). Defendants argue that plaintiff fails to state claims for which relief could be granted pursuant to Federal Rule of Civil Procedure ("Fed.R.Civ.P.") 12(b)(6). Plaintiff Elizabeth Beaver-Jackson ("plaintiff"), appearing pro se, did not respond to defendants' motion in accordance with the Court's rules. The Court, sensitive to plaintiff's pro se status, directed plaintiff to respond. Plaintiff subsequently submitted a declaration, reasserting facts and arguments made in her original and amended complaints, and also filed a notice of lis pendens. Defendants Hubbard request that the Court strike the notice of lis pendens.
Windermere Realty Estate/South, Inc. indicates it has erroneously been sued and identified as Windermere Realty Company. (Dkt. #24 at 1). For purposes of this Order, the Court will hereinafter refer to this defendant as "Windermere."
For the reasons set forth below, the Court GRANTS defendants' motion to dismiss, and GRANTS defendants' request to strike plaintiff's notice of lis pendens.
II. DISCUSSION
The Court notes that the documents submitted by plaintiff (Dkts. #1, #21, #39, #43) are full of factual inconsistencies. Accordingly, the Court shall restate the facts based primarily on plaintiff's amended complaint (Dkt. #21), and supplements any inconsistencies in the light most favorable to plaintiff.
On or around September 10, 1997, plaintiff alleges that she obtained a loan from Pan American Bank, FSB ("Pan American") in the amount of $165,000 to purchase a home in Seattle, Washington. (Dkt. #39, Decl. of Jackson, ¶ 2); (Dkt. #21, Plaintiff's Amended Complaint ("PAC"), ¶ 4). Plaintiff further alleges that on or about June 12, 1998, she obtained a second loan from defendant STD in the amount of $210,000 to pay off the loan with Pan American. (Dkt. #39, Decl. of Jackson, ¶ 4). Pursuant to the terms of this loan, a Deed of Trust was executed on plaintiff's home, naming herself as grantor, defendant STD as beneficiary, and defendant Standard Trustee as the trustee. (Dkt. #21, PAC, ¶ 7). Shortly thereafter, plaintiff indicates that a second Deed of Trust was executed on her home, naming herself as grantor, defendant Ocwen Loan Servicing, LLC ("Ocwen") as beneficiary, and defendant Wells Fargo Bank, N.A. ("Wells Fargo") as the trustee. ( Id.). Plaintiff alleges that "[i]t appears that [defendant Wells Fargo] paid off defendant STD and held sole interest in [my] real property." ( Id.).
Ocwen Loan Servicing, LLC indicates that it has erroneously been sued and identified by plaintiff as Ocwen Fed Bank, FSB aka AMRESCO Residential Mortgage Corporation. (Dkt. #26 at 2). For purposes of this Order, the Court will hereinafter refer to this defendant as "Ocwen."
Wells Fargo, N.A., also indicates that it has erroneously been sued and identified by plaintiff as Wells Fargo aka Wells Fargo Bank Minnesota, N.A. (Dkt. #26 at 2). For purposes of this Order, the Court will hereinafter refer to this defendant as "Wells Fargo."
Nearly three years later, on May 21, 2001, defendant Wells Fargo declared that plaintiff was in default of her loan. ( Id. at ¶ 9). Defendant Wells Fargo then brought an unlawful detainer action in King County Superior Court, seeking to evict plaintiff from her home. ( Id. at ¶ 15). Defendant Wells Fargo argued that plaintiff had been in default of her loan since November 29, 1999, and had notified plaintiff of her default through a letter provided by defendant Klein, an attorney for defendant Wells Fargo. ( Id. at ¶ 9); (Dkt. #39, Decl. of Jackson, ¶ 7, Ex. Q). Plaintiff contends that she never received such notice, and that the document from defendant Klein notifying plaintiff of her default was never brought to her attention until the commencement of the unlawful detainer action. ( Id.). Nevertheless, judgment was entered in favor of defendant Wells Fargo in King County Superior Court. (Dkt. #21, PAC, ¶ 15). Following this proceeding, defendant Wells Fargo assumed ownership over plaintiff's home, and subsequently resold the home to defendant Roosevelt Hubbard, who was an agent for defendant Windermere. ( Id. at ¶¶ 10, 11); (Dkt. #24).
Based on these events, plaintiff brought the instant action in this Court, essentially arguing that all of the lenders and individuals involved in the series of events described above engaged in misconduct which ultimately resulted in plaintiff being wrongfully evicted from her home. Furthermore, plaintiff argues that any reasonable investigation performed by any of the defendants would have shown that plaintiff rightfully owned her home. As a result, plaintiff brings several claims against the defendants. Her amended complaint provides in pertinent part:
This action is for Declaratory and Injunctive Relief, Breach of Contract, Breach of Fiduciary Duty, Self Dealing of a Trustee, Civil Rights violation[s] pursuant to 42 U.S.C. §§ 1981- 1983, 1988, Breach of Covenant of Good Faith and Fair Dealing and Damages.
(Dkt. #21, PAC, ¶ 1).
Defendants Hubbard and defendant Windermere now move to dismiss all of plaintiff's claims against them in their entirety with prejudice. Defendants Klein, Standard Trustee, and STD also seek dismissal of the Civil Rights claims asserted against them by plaintiff.
B. Plaintiff's Supplemental Reply
As an initial matter, the Court addresses a supplemental reply filed by plaintiff. (Dkt. #43). As noted above, plaintiff did not initially respond to defendants' motion to dismiss, and the Court permitted plaintiff to respond in accordance with this Court's rules given her pro se status. The Court also allowed defendants to submit an additional reply to plaintiff's response. Following a reply by defendants Hubbard, plaintiff filed an additional supplemental reply. This pleading, however, does not comply with this Court's rules. Pursuant to Local Rule GR 7(g), a surreply may only be filed when a party seeks to strike material contained in a reply brief. Furthermore, before a party files a surreply, it must: (1) notify all parties and the assigned judge's chambers as soon after receiving the reply brief as practicable that a surreply will be filed; (2) file the surreply within five judicial days of the filing of the reply brief; and (3) limit its reply to less than three pages. See Local Rule GR 7(g)(1-3). Here, plaintiff never obtained permission to file such a reply. Additionally, the docket clearly indicates that plaintiff filed her supplemental reply well after the five-day limit imposed by Local Rule GR 7(g)(2). Lastly, plaintiff's briefing, which is ten pages in length, exceeds the three-page limit established by Local Rule GR 7(g)(3). Accordingly, this pleading shall be stricken. The Court also notes that it has previously referred plaintiff to this Court's rules by its Order directing plaintiff to respond to defendants' motion to dismiss. (Dkt. #37). Therefore the Court finds it unwarranted to relax the rules once again.
C. Standard of Review Under Fed.R.Civ.P. 12(b)(6)
Under Fed.R.Civ.P. 12(b)(6), the Court must dismiss a complaint if a plaintiff can prove no set of facts in support of her claim which would entitle her to relief. Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). In deciding a motion to dismiss, the Court accepts as true all material allegations in the complaint and construes them in the light most favorable to the plaintiff. See Newman v. Sathyavaglswaran, 287 F.3d 786, 788 (9th Cir. 2002); Associated Gen. Contractors v. Metro. Water Dist., 159 F.3d 1178, 1181 (9th Cir. 1998). However, conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss. Associated Gen. Contractors, 159 F.3d at 1181. When a complaint is dismissed for failure to state a claim, "leave to amend should be granted unless the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency." Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986).
D. Plaintiff's Civil Rights Claims
In order to assert a civil rights claim, it is well established that a plaintiff must show that a defendant acted with an intent to discriminate. See generally 42 U.S.C. §§ 1981- 1983, 1988. Moreover, at the most fundamental level, a plaintiff must show some semblance of racially motivated behavior by the defendant. See, e.g., Domino's Pizza, Inc. v. McDonald, 546 U.S. 470, 480, 126 S.Ct. 1246 (2006) (finding that a section 1981 plaintiff must identify injuries flowing from racially motivated conduct).
In this case, plaintiff does not allege a single fact that shows that any of the defendants acted with any discriminatory intent or racial animus based on plaintiff's race. In fact, the only time plaintiff even mentions race is to assert that she is a member of a protected class as an African-American, and that the defendants have "acted under the color of state statute, more commonly known as the Deed of Trust Act." (Dkt. #21, PAC, ¶ 3). Such pleading is simply insufficient to survive a Rule 12(b)(6) motion. As a result, plaintiff's Civil Rights claims with respect to all of the defendants shall be dismissed with prejudice.
Notably, plaintiff does not offer any citation or explanation directing the Court how the "Deed of Trust Act" supports a Civil Rights claim.
E. Plaintiff's Remaining Claims
Plaintiff also asserts a myriad of other claims against defendants Hubbard and defendant Windermere, including breach of contract, breach of fiduciary duty, self-dealing of a trustee, and the breach of the covenant of good faith and fair dealing. (Dkt. #21, PAC, ¶ 1). However, plaintiff simply fails to establish any facts that either defendants Hubbard or defendant Windermere owed any fiduciary duty to plaintiff. Nor can plaintiff establish any inkling of a contractual relationship. Defendant Roosevelt Hubbard, as an agent for defendant Windermere, purchased plaintiff's former home at a foreclosure sale. Indeed, as defendants Hubbard correctly point out, the facts submitted by plaintiff establish that defendants Hubbard were bona-fide purchasers. For example, plaintiff's amended complaint provides:
On a date unknown to plaintiff at this time [defendant Wells Fargo] offered defendants [Windermere] and Hubbard that if they [purchased] plaintiff's property they would finance the loan to buy the property, [and convey] property right[s] to [defendants Hubbard], investor for [defendant Windermere].
(Dkt. #21, PAC, ¶ 11).
Moreover, any doubts regarding the foreclosure have already been resolved. As stated in plaintiff's own amended complaint, the dispute over the initial default was adjudicated in King County Superior Court in an unlawful detainer action brought by defendant Wells Fargo. Plaintiff indicates that "through some unknown court error [defendant Wells Fargo], though not present, received a judgment in their favor[.]" (Dkt. #21, PAC, ¶ 15). Plaintiff further contends that it "was proven that defendant Ocwen's accounting error had caused the premature foreclosure and that is all undisputed." (Dkt. #39, Decl. of Jackson, ¶ 9). Despite such claims, no support is offered for this statement, nor is the record of the unlawful detainer action provided to this Court. In addition, the misconduct which plaintiff alleges in this case pre-date defendants Hubbard and defendant Windermere's involvement with this case. Plaintiff's allegation that she was paying two mortgages at once prior to the foreclosure on her home does not establish any relationship, much less a contractual one, between plaintiff and defendants Hubbard and defendant Windermere.
Plaintiff indicates that the record "is not included at this time as a prohibitive cost due to a lack of coordination of Superior Court Clerk's Office and the Ex Parte department of the Superior Court of Washington." ( Id.).
While a plaintiff is certainly allowed to assert as many claims as she may have against an opposing party, see Fed.R.Civ.P. 18(a), she must plead facts that give rise to those claims. Otherwise, such claims are merely conclusory in nature. Here, plaintiff does not allege any facts whatsoever to support any cognizable legal cause of action against defendants Hubbard or defendant Windermere. While leave to amend a complaint is generally granted, plaintiff has already amended her complaint once in this case, and the defects in her complaint cannot be cured. Therefore, under these circumstances, plaintiff's remaining claims against these defendants shall be dismissed with prejudice.
F. Notice of Lis Pendens
A lis pendens serves to alert subsequent purchasers or secured parties of a potential senior security interest in the title or ownership of real property pending a possible judgment against that real property. Feiler v. U.S., 62 F.3d 315, 319 (9th Cir. 1995). " There must be some basis for concluding that an equitable lien or constructive trust would be imposed on the real property subject to the notice of lis pendens." Chevron U.S.A. Inc. v. Schirmer, 11 F.3d 1473, 1479 (9th Cir. 1993) (emphasis in original). A lis pendens is groundless where the underlying action affecting title to real property "has no arguable basis or is not supported by credible evidence." Id. (citation omitted).
Here, and as previously discussed, defendants Hubbard have title over the at-issue property following a bona-fide purchase at a foreclosure sale. And by plaintiff's own submission, the foreclosure sale followed an unlawful detainer action in King County Superior Court which plaintiff lost. Therefore there is neither an arguable basis nor credible evidence for plaintiff's notice of lis pendens.
III. CONCLUSION
Having reviewed the relevant documents, and the remainder of the record, the Court hereby finds and orders:
(1) Defendants Roosevelt and Carolyn Hubbard's Motion to Dismiss (Dkt. #17), in which defendant Windermere Realty Estate/South, Inc. (Dkt. #24) joins in its entirety, and in which defendant John Klein (Dkt. #19), and defendants Standard Trustee Service Company of Washington and STD Corporation (Dkt. #27), join partially, is GRANTED. Specifically, plaintiff's claims with respect to defendants Roosevelt and Carolyn Hubbard, and defendant Windermere Realty Estate/South, Inc. shall be dismissed with prejudice. Plaintiff's Civil Rights claims against defendants John Klein, Standard Trustee Service Company of Washington, and STD Corporation shall also be dismissed with prejudice.
This Order does not dismiss the case as all other claims alleged by plaintiff against defendants John Klein, Standard Trustee Service Company of Washington, and STD Corporation and the remaining claims are pending before the Court. In addition, all of plaintiff's claims against defendants Wells Fargo and Ocwen Loan Servicing, LLC, remain pending before the Court.
(2) Defendants Roosevelt and Carolyn Hubbard's supplemental request to strike plaintiff's Notice of Lis Pendens is GRANTED. The Clerk is directed to strike plaintiff's notice (Dkt. #40) from the record.
(3) The Clerk is directed to forward a copy of this Order to all counsel of record and to pro se plaintiff at3331 E. Marion Street, Seattle, WA 98122.