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Alexa Nita Russell v. Bac Home Loans Servicing

February 16, 2012


The opinion of the court was delivered by: David Alan Ezra United States District Judge


Pursuant to Local Rule 7.2(d), the Court finds this matter suitable for disposition without a hearing.*fn1 After considering the Defendant's Motion to Dismiss Plaintiff's First Amended Complaint, the Court GRANTS Defendant's Motion to Dismiss and DISMISSES WITHOUT PREJUDICE Plaintiff's Complaint.


On November 2, 2007, Plaintiff Alexa Nita Russell executed a promissory note ("Note") as "Attorney-in-Fact" for Richard Stanley Henderson ("Henderson").*fn2 ("FAC," Doc. # 62, Ex. A.) The Note was secured by a mortgage agreement ("Mortgage") between "Borrower[s]" Plaintiff and Henderson and "Lender" Countrywide Bank, FSB ("Countrywide Bank"). (FAC, Ex. B.) The Mortgage, which relates to the real property located at 52-170 Makapala Road, Kapaau, Hawaii 96755 ("Subject Property"), was recorded in the Bureau of Conveyances on November 8, 2007, as Document No. 2007-196776. (Id.) Plaintiff and Henderson are identified as "Borrower[s]" and "Joint Tenants" under the Mortgage. (Id.) Mortgage Electronic Registration Systems, Inc. ("MERS") is identified in the Mortgage as the "nominee for Lender and Lender's successors and assigns," and as the "mortgagee under this Security Instrument." (Id.)

On March 23, 2009, Mortgage Electronic Registration Systems, Inc. ("MERS"), acting as a nominee for Countrywide Bank, executed an Assignment of Mortgage that transferred "all of its rights, title and interest" in the mortgage to Countrywide Home Loans Servicing LP.*fn3 (Id., Ex. G.) On January 28, 2011, BAC Home Loans recorded a Notice of Mortgagee's Intention to Foreclose Under Power of Sale. (Id.) On July 26, 2011, Bank of America, N.A., recorded a Notice of Rescission of Mortgagee's Intention to Foreclose Under Power of Sale. (Id., Ex. H.)

On March 28, 2011, Plaintiff filed a complaint against BAC Home Loans ("Defendant" or "BAC") in the Third Circuit Court, State of Hawaii. (Doc. # 1-2.) Defendant removed the action to this Court on April 26, 2011. (Doc. # 1.) On May 11, 2011, Defendant filed a Motion to Dismiss. (Doc. # 15.) On September 21, 2011, the Court granted Defendant's Motion to Dismiss and dismissed Plaintiff's complaint without prejudice on the ground that "the allegations in Plaintiff's Complaint are insufficient to satisfy the pleading standards set forth in [Rules of Civil Procedure] 8 and 9(b)." (Doc. # 58 at 12--14.) The Court granted Plaintiff leave to amend. (Id. at 13.)

On November 3, 2011, Plaintiff filed an Amended Complaint ("FAC"). ("FAC", Doc. # 62.) In her FAC, Plaintiff alleges that she did not sign the Note as a party to be bound, making the Note and the Mortgage unenforceable. (Id. at 2--3.) Plaintiff also "challenges Defendant['s] standing as Note owner, a Mortgage holder and a holder in due course." (Id. at 3.) Plaintiff requests that this Court order Defendant to "release any and all liens that it and any of its assigns and assignees may have against the Plaintiff's home and property," and order Defendant to "remove its creditor status [and] remove any derogatory reporting that Defendant BAC has placed on Plaintiff's credit report[.] (Id. at 25.) Plaintiff also asks the Court to enjoin any foreclosure proceedings "so that Plaintiff may keep her home and property free and clear," and award Plaintiff "General, Statutory, Monetary, and Punitive damages." (Id.)

On November 17, 2011, Defendant filed the instant Motion to Dismiss. (Doc. # 67.) Plaintiff has not filed an opposition to the Motion.


I. Federal Rule of Civil Procedure 12(b)(6)

Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("Rule"), a motion to dismiss will be granted where the plaintiff fails to state a claim upon which relief can be granted. Review is limited to the contents of the complaint. See Clegg v. Cult Awareness Network, 18 F.3d 752, 754 (9th Cir. 1994). A complaint may be dismissed as a matter of law for one of two reasons: "(1) lack of a cognizable legal theory, or (2) insufficient facts under a cognizable legal claim." Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984) (citation omitted). Allegations of fact in the complaint must be taken as true and construed in the light most favorable to the plaintiff. See Livid Holdings Ltd. v. Salomon Smith Barney, Inc., 416 F.3d 940, 946 (9th Cir. 2005).

A complaint need not include detailed facts to survive a Rule 12(b)(6) motion to dismiss. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555--56 (2007). In providing grounds for relief, however, a plaintiff must do more than recite the formulaic elements of a cause of action. See id. at 556--57; see also McGlinchy v. Shell Chem. Co., 845 F.2d 802, 810 (9th Cir. 1988) ("[C]onclusory allegations without more are insufficient to defeat a motion to dismiss for failure to state a claim.") (citation omitted). "The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions," and courts "are not bound to accept as true a legal conclusion couched as a factual allegation." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotations and citations omitted). Thus, "bare assertions amounting to nothing more than a formulaic recitation of the elements" of a claim "are not entitled to an assumption of truth." Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009) ("[T]he non-conclusory 'factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.") (internal quotations and citations omitted).

A court looks at whether the facts in the complaint sufficiently state a "plausible" ground for relief. See Twombly, 550 U.S. at 570. A plaintiff must include enough facts to raise a reasonable expectation that discovery will reveal evidence and may not just provide a speculation of a right to relief. Id. at 586. When a complaint fails to adequately state a claim, such deficiency should be "exposed at the point of minimum expenditure of time and money by the parties and the court." Id. at 558 (citation omitted). If a court dismisses the complaint or portions thereof, it must consider whether to grant leave to amend. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. ...

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