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John J. Gillmore v. Wells Fargo Bank

October 17, 2011

JOHN J. GILLMORE,
PLAINTIFF,
v.
WELLS FARGO BANK, N.A.; JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10; DOE CORPORATIONS 1-10; AND DOE ENTITIES 1-10, DEFENDANTS.



The opinion of the court was delivered by: Leslie E. Kobayashi United States District Judge

ORDER GRANTING DEFENDANT WELLS FARGO BANK, N.A.'S MOTION TO DISMISS

Before the Court is Defendant Wells Fargo Bank, N.A.'s ("Wells Fargo" or "Defendant") Motion to Dismiss ("Motion"), filed on June 15, 2011. Plaintiff John J. Gillmore ("Plaintiff") filed his memorandum in opposition on September 22, 2011, and Defendant filed its reply on October 3, 2011. The Court finds this matter suitable for disposition without a hearing pursuant to Rule LR7.2(d) of the Local Rules of Practice of the United States District Court for the District of Hawai`i ("Local Rules"). After careful consideration of the Motion, supporting and opposing memoranda, and the relevant legal authority, Defendant's Motion is HEREBY GRANTED.

BACKGROUND

Plaintiff alleges in his Complaint that, on or about October 31, 2006, he signed a first mortgage agreement ("First Mortgage") and note with Defendant, secured by his property located at 160 Alehela Street, Kahului, Hawaii 96732 ("the Property"). [Complaint at ¶ 4.] He signed a second mortgage agreement ("Second Mortgage") with Defendant, also secured by the Property, on November 22, 2006. [Id.] According to Plaintiff, Defendant is both the lender and servicer of the First and Second Mortgages. [Id. at ¶¶ 5-6.]

The Complaint alleges four causes of action. Count I alleges as follows:

11. Defendant WELLS FARGO would preempt PLAINTIFF's right to buy insurance for the said property by setting up an escrow account and charging far in excess over the market value for insurance.

12. Section 5 of the UNIFROM (sic) COVENANTS of the 1st Mortgage and Section 4 of the UNIFROM (sic) COVENANTS of the 2nd MORTGAGE are unconscionable by any standard and certainly shocks the conscious of any reasonable person. See EXHIBIT "1" at 6 and EXHIBIT "2" at 4.

13. PLAINTIFF asks for a refund and credit for this unconscionable and usurious rate of insurance along with punitive damages, totaling in excess of $75,000.00. [Id. (footnotes omitted).] Counts II and III are nearly identical to Count I, and claim that Defendant purchased property and flood insurance on Plaintiff's behalf at usurious rates. [Id. at ¶¶ 14-21.] Count IV alleges that Defendant breached its contractual obligations, and, therefore, the contracts are null and void, and that Plaintiff is entitled to punitive damages. [Id. at ¶¶ 22-23.]

Attached to the Complaint as Exhibit 1 is the First Mortgage, and attached as Exhibit 2 is the Second Mortgage. The Complaint does not allege when Defendant procured insurance on the Plaintiff's behalf, how much the coverage cost, or why Plaintiff neglected to purchase his own insurance.

I. Defendant's Motion

Defendant asks the Court to dismiss the Complaint because it does not state a claim upon which relief can be granted and does not comply with Federal Rule of Civil Procedure 8.

A. Failure to State Claims for Unconscionability and Usury

Defendant first argues that Plaintiff fails to state a claim for unconscionability or usury. It argues that unconscionability is a defense to the enforcement of a contract, and does not state an affirmative claim in this instance. Further, the insurance premiums allegedly charged to Plaintiff are not "usurious" because they do not involve an illegal rate of interest. [Mem. in Supp. of Motion at 4-5.]

B. Failure to State a Claim for Breach of Contract

Defendant next argues that Plaintiff's Count IV breach of contract claim is insufficiently plead and should be dismissed. The claim does not sufficiently identify the particular provision allegedly violated, or when and ...


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