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Federal National Mortgage Association v. Daniel K. Kamakau; John Does ; Jane Does 1-50; Doe

February 23, 2012

FEDERAL NATIONAL MORTGAGE ASSOCIATION, PLAINTIFF/COUNTERCLAIM DEFENDANT )
v.
DANIEL K. KAMAKAU; JOHN DOES ; JANE DOES 1-50; DOE
THIRD-PARTNERSHIPS 1-50; DOE PARTY CORPORATIONS 1-50; AND DOE GOVERNMENTAL UNITS 1-50,
DEFENDANT, COUNTERCLAIM PLAINTIFF. DANIEL K. KAMAKAU, THIRD-PARTY PLAINTIFF,
v.
COUNTRYWIDE HOME LOANS, INC.; COUNTRYWIDE BANK, N.A.; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; BAC HOME LOANS SERVICING, LP; BANK OF AMERICA, N.A.; AND DOES 1-50, THIRD-PARTY DEFENDANTS.



The opinion of the court was delivered by: J. Michael Seabright United States District Judge

ORDER (1) GRANTING PLAINTIFF FEDERAL NATIONAL MORTGAGE ASSOCIATION'S MOTION TO DISMISS DEFENDANT DANIEL K. KAMAKAU'S AMENDED COUNTERCLAIMS, DOC. NO. 12; AND (2) GRANTING THIRD-PARTY DEFENDANTS COUNTRYWIDE HOME LOANS, INC., BANK OF AMERICA, N.A. AND MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.'S MOTION TO DISMISS THE THIRD-PARTY COMPLAINT OF DANIEL KAMAKAU, DOC. NO. 21

I. INTRODUCTION

On August 2, 2011, Plaintiff Federal National Mortgage Association ("FNMA") filed a Complaint in this court against Defendant Daniel Kamakau ("Kamakau"), asserting claims for declaratory judgment and ejectment based on Kamakau's failure to vacate real property located at 74-5113 Palihiolo Place, Kailua-Kona, Hawaii 96740 (the "subject property") after Kamakau defaulted on his mortgage loan and FNMA was the successful bidder at the subsequent mortgage foreclosure auction. In response, Kamakau asserted Amended Counterclaims against FNMA and brought a Third-Party Complaint against Mortgage Electronic Registration Systems, Inc. ("MERS"), BAC Home Loans Servicing, LP ("BAC"), Bank of America, N.A. ("BANA"), and Countrywide Home Loans, Inc. and Countrywide Bank, N.A. ("Countrywide") (collectively "Third-Party Defendants"). Kamakau asserts the same claims against FNMA and Third-Party Defendants including claims titled (1) breach of contract; (2) RESPA, TILA, FDCPA Violations; (3) Quiet Title; and (4) Punitive Damages.

Currently before the court is FNMA's and Third-Party Defendants' (collectively, "Movants") Motions to Dismiss Kamakau's Amended Counterclaims and Third-Party Complaint, respectively, in which they argue that Kamakau has failed to state a claim upon which relief can be granted. Based on the following, the court agrees and GRANTS the Motions to Dismiss.

II. BACKGROUND

A. Factual Background

The same basic allegations are found in Kamakau's Amended Counterclaims and Third-Party Complaint as follows:

On December 8, 2006, Kamakau and his wife executed a note for $330,000 in favor of Countrywide Home Loans, Inc., which was secured by a mortgage on the subject property. See, e.g., Doc. No. 7, Am. Counterclaims ¶ 6.*fn1

On February 7, 2007, Kamakau and his wife entered into a second mortgage loan secured by the subject property for $50,000 with Countrywide National Bank, N.A. Id. ¶ 7. Both mortgages assert that MERS "is acting solely as nominee for Lender and Lender's successors and assigns. MERS is the mortgagee under this Security Instrument." Doc. No. 7-1, Am. Counterclaims Ex. A.

According to Kamakau, no transfers of the mortgage loans to any third parties were recorded in the State of Hawaii Bureau of Conveyances. Doc. No. 7, Am. Counterclaims ¶ 8. Kamakau further asserts that he made "multiple requests under Hawaii Revised Statutes § 490," the Real Estate Procedures Act ("RESPA") 12 U.S.C. § 2605 et seq., and the Truth in Lending Act ("TILA") 15 U.S.C. § 1601, yet the subject property was "allegedly and illegally sold to BAC, claiming to be the highest bidder at a non-judicial foreclosure sale on March 10, 2010." Id. ¶ 9.

FNMA later brought an ejectment action in the Third Circuit Court of the State of Hawaii, which granted Kamakau's Motion to Dismiss on January 14, 2011. Id. ¶¶ 10-11.

B. Procedural Background

On August 2, 2011, FNMA filed its Complaint in this court against Kamakau, asserting claims for declaratory judgment and ejectment based on Kamakau's failure to vacate the subject property. As alleged in the Complaint, Kamakau defaulted on his $330,000 loan with Countrywide Home Loans, Inc., and FNMA was the highest bidder at a non-judicial foreclosure auction of the subject property.*fn2 In response, Kamakau filed an Answer, Counterclaims against FNMA, and Third-Party Claims against Third-Party Defendants. Kamakau's First Amended Counterclaims and Third-Party Complaint assert claims against Movants titled (1) breach of contract; (2) RESPA, TILA, FDCPA Violations; (3) Quiet Title; and (4) Punitive Damages.

FNMA filed its Motion to Dismiss on October 4, 2011, and Kamakau filed his Opposition on October 26, 2011. Third-Party Defendants filed their Motion to Dismiss on October 27, 2011, and Kamakau filed his Opposition on December 13, 2011. Replies were filed on December 20, 2011. A hearing was held on February 6, 2012.

III. STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(6) permits a motion to dismiss a claim for "failure to state a claim upon which relief can be granted[.]"

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, ___, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Weber v. Dep't of Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir. 2008). This tenet -- that the court must accept as true all of the allegations contained in the complaint -- "is inapplicable to legal conclusions." Iqbal, 129 S. Ct. at 1949. Accordingly, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S.at 555); see also Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) ("[A]llegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.").

Rather, "[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." Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S.at 556). In other words, "the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation." Starr, 652 F.3d at 1216. Factual allegations that only permit the court to infer "the mere possibility of misconduct" do not show that the pleader is entitled to relief as required by Rule 8. Iqbal, 129 S. Ct. at 1950.

IV. DISCUSSION

Although Kamakau brings Counterclaims against FNMA and a Third-Party Complaint against Third-Party Defendants, the claims in the pleadings mirror each other and the court addresses them together. The court addresses Movants' arguments in turn.

A. Failure to Plead Facts as to Each Party

As an initial matter, Movants argue that Kamakau's claims should be dismissed because it is unclear exactly what Kamakau is asserting against each particular party. Doc. No. 12-1, FNMA Mot. at 3-4; Doc. No. 21, Third-Party Defs.' Mot. at 5. The court agrees -- none of the individual counts in either the Amended Counterclaims or the Third-Party Complaint makes any particular allegations as to any specific party, and the general allegations for the most part lump all the parties together. Such conclusory pleading fails to state a claim that is plausible on its face as to FNMA and/or Third-Party Defendants. Accordingly, the court finds that as a general matter, the Amended Counterclaims and the Third-Party Complaint fail to state a claim as to any party.

B. Breach of Contract (Count I)

Both the Amended Counterclaims and the Third-Party Complaint assert that Kamakau "entered into a promissory note and mortgage security with third parties with the understanding that the parties would follow required responsibilities in proper recordation, assignment, and/or transfer of rights according to the laws of the State of Hawaii." See Doc. No. 7, Am. Counterclaims ¶ 14; Third-Party Compl. ¶ 19. Kamakau further asserts that FNMA and Third-Party Defendants: failed to perform according to the contract, failed to perform according to the customary and standard requirements of lenders in proper identification of interests in real property, and caused a broken chain of title to the Property of [Kamakau], slander of title, and improper recordation of ownership of secured interests in the property from the time of initiation and execution of the contract. . . .

See Doc. No. 7, Am. Counterclaims ¶ 15; Third-Party Compl. ¶ 20. Finally, Kamakau asserts that Third-Party Defendants securitized the mortgage loan "with no regard to implied terms and standards required of lenders of real property rights . . . ." See ...


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