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Stabley v. Bank of America, N.A.

United States District Court, D. Nevada

July 22, 2014

GARTH E. STABLEY, Plaintiff,
v.
BANK OF AMERICA, N.A., et al., Defendants.

ORDER

GLORIA M. NAVARRO, Chief District Judge.

Pending before the Court is a pro se civil action filed by Garth E. Stabley ("Plaintiff") against Bank of America, N.A. ("BOA"), BAC Home Loans Servicing, LP (incorrectly sued as "Countrywide Financial Corp., a Delaware Corp. dba BAC Home Loans Servicing"), Countrywide Home Loans, Inc., ReconTrust Company N.A., and CTC Real Estate Services (collectively "Defendants"). (Amend. Complaint, ECF No. 28.) Defendants filed a Motion to Dismiss Plaintiff's Amended Complaint on November 29, 2013. (ECF No. 30.) Plaintiff failed to submit a timely response in opposition to Defendants' motion, which pursuant to Local Rule 7-2(d) allows this Court to consider Plaintiff's silence as constituting consent to grant the motion. D. Nev. R. 7-2(d). Plaintiff, however, eventually filed his Opposition to Defendants' Motion to Dismiss on January 13, 2014. (ECF No. 40.) In light of the fact that Plaintiff is proceeding pro se in this litigation, the Court will consider Plaintiff's Response and rule on the merits of Defendants' Motion to Dismiss.

For the following reasons, the Court will GRANT Defendants' Motion to Dismiss Plaintiff's Complaint. (ECF No. 30.)

I. BACKGROUND

On April 22, 2011, Plaintiff filed his original Complaint. (ECF No. 1-1.) This Complaint was filed using a handwritten fill-in-the-blank form provided to prisoners who wish to file a civil rights complaint and stated three counts on which Plaintiff's suit was based: "COUNT I - Fraud, Deception and Concealment; COUNT II - Predatory Lending, Civil Rights and Constitutional Rights; COUNT III - Fair Housing Complaint, HUD Complaint, Securitization Contaminated and Prejudice Due to age and Income being prayed [sic] upon." (Complaint ¶ 1, ECF No. 1-1.) On May 13, 2011, Defendants filed a Motion to Dismiss Plaintiff's Complaint. (ECF No. 6.) After determining that Plaintiff's Complaint failed to give Defendants fair notice of a legally cognizable claim or allege sufficient facts to show that a violation was plausible instead of merely possible, this Court granted Defendants' Motion to Dismiss without prejudice and gave Plaintiff leave to file an amended complaint. (Order, ECF No. 22.)

Plaintiff filed his Amended Complaint on February 3, 2013. (Amend. Complaint, ECF No. 24.) Liberally construing this second inartfully pled complaint, Plaintiff appears to be asserting the same original three counts for (1) "Fraud, Deception and Concealment, " (2) "Predatory Lending, Civil Rights and Constitutional Rights, " and (3) "Fair Housing Complaint, HUD Complaint, Securitization Contaminated and Prejudice Due to age and Income being prayed [sic] upon, " along with five new counts for (4) "Violation of the Real Estate Settlement Procedures Act (RESPA), " (5) "Breach of Contract - Promissory Note, " (6) "Intentional Misrepresentation, " (7) violations of the "Fair Debt Collection Practices Act (FDCPA), and (8) "Violations of Racketeer Influenced and Corrupt Organizations Act (RICO)." ( Id. ¶¶ 21-82.) Defendants subsequently filed their Motion to Dismiss Amended Complaint on November 29, 2013. (ECF No. 30.)

II. LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(6) mandates that a court dismiss a cause of action that fails to state a claim upon which relief can be granted. See North Star Int'l. v. Arizona Corp. Comm'n., 720 F.2d 578, 581 (9th Cir. 1983). When considering a motion to dismiss under Rule 12(b)(6) for failure to state a claim, dismissal is appropriate only when the complaint does not give the defendant fair notice of a legally cognizable claim and the grounds on which it rests. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In considering whether the complaint is sufficient to state a claim, the Court will take all material allegations as true and construe them in the light most favorable to the plaintiff. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986).

The Court, however, is not required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A formulaic recitation of a cause of action with conclusory allegations is not sufficient; a plaintiff must plead facts showing that a violation is plausible, not just possible. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 555) (emphasis added).

A court may also dismiss a complaint pursuant to Federal Rule of Civil Procedure 41(b) for failure to comply with Federal Rule of Civil Procedure 8(a). Hearns v. San Bernardino Police Dept., 530 F.3d 1124, 1129 (9th Cir. 2008). Rule 8(a)(2) requires that a plaintiff's complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). "Prolix, confusing complaints" should be dismissed because "they impose unfair burdens on litigants and judges." McHenry v. Renne, 84 F.3d 1172, 1179 (9th Cir.1996). Mindful of the fact that the Supreme Court has "instructed the federal courts to liberally construe the inartful pleading' of pro se litigants, " Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987), the Court will view Plaintiffs' pleadings with the appropriate degree of leniency.

"Generally, a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion.... However, material which is properly submitted as part of the complaint may be considered on a motion to dismiss. Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990) (citations omitted). Similarly, "documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss" without converting the motion to dismiss into a motion for summary judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). Under Federal Rule of Evidence 201, a court may take judicial notice of "matters of public record." Mack v. S. Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986). Otherwise, if the district court considers materials outside of the pleadings, the motion to dismiss is converted into a motion for summary judgment. See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001).

III. DISCUSSION

Plaintiff alleges as background in his Amended Complaint that a representative from BOA informed him that he was eligible for a loan modification, but instead of providing him information about the loan, the representative "forced him into a scheme of operation so horribly dysfunctional that the constant barrage of misinformation, misdirection, and deliberate inactivity amounted to abuse and harassment." (Amend. Complaint, ¶ 11, ECF No. 24.) He also alleges that as he tried to obtain information he was "spun [into] a labyrinth of transfers, " blocked from speaking to supervisors, and generally subject to a "pattern and practice by [Defendants] of deception and deliberately misinforming borrowers about default." ( Id. ¶¶ 12-15.) Plaintiff further alleges that as a result of ...


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