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Jesusa Lolita Untalan, An Individual v. Alliance Bancorp

October 4, 2011

JESUSA LOLITA UNTALAN, AN INDIVIDUAL, PLAINTIFF,
v.
ALLIANCE BANCORP, A BUSINESS ) ENTITY, FORM UNKNOWN; DAVID ) MK YUEN AND ASSOCIATES, A ) BUSINESS ENTITY, FORM ) UNKNOWN; MORTGAGE ELECTRONIC ) REGISTRATION SYSTEMS, A ) BUSINESS ENTITY, FORM UNKNOWN; AND DOES 1-100 ) INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Susan Oki Mollway Chief United States District Judge

ORDER GRANTING DEFENDANT MORTGAGE ELECTRONIC REGISTRATION SYSTEMS' MOTION TO DISMISS COMPLAINT

ORDER GRANTING DEFENDANT MORTGAGE ELECTRONIC REGISTRATION SYSTEMS' MOTION TO DISMISS COMPLAINT

I. INTRODUCTION.

On June 30, 2011, pro se Plaintiff Jesusa Lolita

Untalan filed this action against Defendants Alliance Bancorp, David MK Yuen and Associates, and Mortgage Electronic Registration Systems ("MERS"). Untalan asserts federal and state law claims arising from a May 8, 2006, mortgage transaction concerning real property in Ewa Beach, on the island of Oahu.

Untalan used a "form" complaint that this court is very familiar with. Certified Forensic Loan Audit of Hawaii and/or Guidotti appears to have prepared these documents for Untalan to file with the court on a pro se basis. The Complaint is nearly identical to many other complaints that appear to have been prepared by similar companies and/or Richard Guidotti that have been dismissed by this court. Forensic reports prepared by Francha Services, LLC., some written by Guidotti, have accompanied previous complaints filed in this court. See, e.g., Caniadido v. Countrywide Bank, FSB., Civ. No. 11-00080, Plaintiff Compl. Ex. A, Feb. 01, 2011, ECF No. 1; Pugal v. America's Servicing Co., Civ. No. 11-00054, 2011 WL 4435089 (D. Haw. Sept 21, 2011). A different company, Forensic Loan, appears to have prepared Untalan's forensic report. The court notes that Forensic Loan uses the same address as Francha Services and that Guidotti, who worked for Francha Services in other cases, appears to also have prepared Untalan's report. Compare Compl. Ex. A with Caniadido, Plaintiff Compl. Ex. A.

Untalan's Complaint seeks declaratory and injunctive relief, as well as damages and rescission of the mortgage transaction. MERS seeks dismissal of all counts against it pursuant to Rules 12(h)(3) and 12(b)(6) of the Federal Rules of Civil Procedure. Pursuant to Rule 12(h)(3), MERS asserts that Untalan lacks standing to bring her claims and that this court should dismiss those claims for lack of standing. The court has construed MERS's 12(h)(3) Motion as a motion to dismiss pursuant to Rule 12(b)(1). Pursuant to Rule 12(b)(6), MERS asserts that Untalan fails to state any claims upon which relief may be granted.*fn1

For the reasons set forth in this order, the court GRANTS MERS's motion and dismisses the Complaint with leave to amend as set forth in this order. Given obvious pleading defects applicable to all other Defendants, the court also sua sponte dismisses all claims against nonmoving Defendants.

II. STANDARD OF REVIEW. A. Rule 12(b)(1).

While MERS moves pursuant to Rule 12(h)(3), which states that a court must dismiss an action if it determines at any time that it lacks subject-matter jurisdiction, the motion appears to more properly fall under Rule 12(b)(1) of the Federal Rules of Civil Procedure, which addresses a motion to dismiss for lack of subject-matter jurisdiction. MERS seeks dismissal based on lack of standing, which is part of subject-matter jurisdiction. See White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000) (stating that standing pertains to a federal court's subject-matter jurisdiction). Dismissal under Rule 12(h)(3) is appropriate when a court dismisses a case sua sponte. See e.g., Snell v. Cleveland, Inc., 316 F.3d 822, 826 (9th Cir. 2002) ("Federal Rule of Civil Procedure 12(h)(3) provides that a court may raise the question of subject-matter jurisdiction, sua sponte, at any time during the pendency of the action[.]")(citations omitted).

Rule 12(b)(1) provides: "Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion: (1) lack of subject-matter jurisdiction[.]"

A motion to dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1) may either attack the allegations of the complaint as insufficient to confer subject-matter jurisdiction upon the court, or attack the existence of subject-matter jurisdiction in fact. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). When the motion to dismiss attacks the allegations of the complaint as insufficient to confer subject-matter jurisdiction---a facial challenge--all allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. Fed'n of African Am. Contractors v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir. 1996). When the motion to dismiss is a factual attack on subject-matter jurisdiction, however, no presumption of truth attaches to the plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the existence of subject-matter jurisdiction in fact. Safe Air for Everyone, 373 F.3d at 1039. To the extent MERS challenges Untalan's standing, the court construes MERS's Motion as a factual attack on the court's subject-matter jurisdiction brought under 12(b)(1).

B. Rule 12(b)(6).

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides: "Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion: . . .

(6) failure to state a claim upon which relief can be granted[.]"

On a Rule 12(b)(6) motion to dismiss, the court takes all allegations of material fact as true and construes them in the light most favorable to the nonmoving party. Marcus v. Holder, 574 F.3d 1182, 1184 (9th Cir. 2009). To survive a motion to dismiss, a complaint must contain sufficient factual matter to "state a claim to relief that is plausible on its face." 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." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 554).

Dismissal under Rule 12(b)(6) may be based on either (1) the lack of a cognizable legal theory, or (2) insufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988) (citing Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir. 1984)).

III. FACTUAL BACKGROUND.

According to the Complaint, Untalan ...


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