United States District Court, D. Hawaii
For Arsenio Aguilar Pascua, Plaintiff: Robert L. Stone, Property Rights Law Group, Honolulu, HI.
For Option One Mortgage Corporation, Defendant: Jade L. Ching, LEAD ATTORNEY, James B. Rogers, Alston Hunt Floyd & Ing, Honolulu, HI.
For Homeward Residential, Inc., Wells Fargo Bank, N.A., Ocwen Loan Servicing, LLC, Defendants: James B. Rogers, lston Hunt Floyd & Ing, Honolulu, HI.
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS AND DENYING MOTION FOR SANCTIONS
Susan Oki Mollway, Chief United States District Judge.
Defendants Homeward Residential, Inc. (" Homeward"), Wells Fargo Bank, National Association as Trustee for Soundview Home Loan Trust 2007-OPT5, Asset-Backed Certificates, Series 2007-OPT5 (" Wells Fargo"), Ocwen Loan Servicing, LLC (" Ocwen"), and Sand Canyon Corporation (" Sand Canyon") (collectively, " Defendants"), move: (1) to dismiss Plaintiff Arsenio Aguilar Pascua's Complaint; and (2) for sanctions against Pascua and Pascua's counsel, Robert L. Stone of Property Rights Law Group of Hawai'i, Inc. The motion to dismiss is granted in part and denied in part and the motion for sanctions is denied.
II. FACTUAL BACKGROUND.
Defendants' motions are based on the contention that Pascua, in his Complaint filed on May 28, 2014, is seeking to religitate an issue that this court decided in a previous action. ECF No. 29-1, PageID # 354-55.
The previous action, Pascua v. Option One Mortgage Corp., Civ. No. 13-00406 SOM/KSC (" Pascua I"), filed on August 21, 2013, was dismissed for lack of subject matter jurisdiction. See Pascua I, Civ. No. 13-00406 SOM/KSC, 2014 WL 806226 (D. Haw. Feb. 28, 2014). At the time the court entered its dismissal order in Pascua I, the court had before it only a quiet title claim. Id. The court determined that Pascua had failed to show that his only alleged injury (i.e., his alleged uncertainty about which entity he was indebted to) equated with an amount in controversy in excess of $75, 000, as required to establish diversity jurisdiction. Id.
Prior to this court's ruling as to the quiet title claim in Pascua I, Pascua voluntarily dismissed claims under the Fair Debt Collections Practices Act (" FDCPA") and Hawaii's Unfair Competition and Practices Act (" UDAP"
). Id. at *1. Pascua's dismissal of those claims came in response to Defendants' contention that Pascua's FDCPA claim was so patently frivolous that it should not be treated as conferring federal question jurisdiction. Pascua's offer to dismiss his FDCPA claim in Pascua I rendered moot the issue of whether the FDCPA claim was frivolous and was asserted merely to obtain jurisdiction. Although cognizant that jurisdiction is ordinarily determined based on circumstances existing at the time suit commences, this court deemed it prudent, given Defendants' allegations concerning the FDCPA claim, to look at whether there was an independent basis for federal jurisdiction for the remaining quiet title claim. The court additionally examined the quiet title claim for an independent basis for federal jurisdiction with respect to Defendant Option One because the quiet title claim was the only claim asserted against that Defendant. That is, because Option One had not been sued in the withdrawn counts, it was not clear that there was subject matter jurisdiction with respect to Option One.
On May 28, 2014, Pascua filed a Complaint in this new action (" Pascua II") against the same parties he had sued in Pascua I. See ECF No. 1. Based on the same factual circumstances outlined in this court's order in Pascua I, the Pascua II Complaint asserts claims for violation of the FDCPA (Count I), for slander of title (Count II), and for quiet title (Count III). Id. Pascua did not assert a slander of title claim in Pascua I, but the FDCPA and quiet title claims in Pascua II are nearly identical to those in Pascua I.
A. Rule 12(b)(1).
Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a complaint may be dismissed for lack of subject matter jurisdiction.
An attack on subject matter jurisdiction " may be facial or factual." Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). A facial attack asserts that " the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction." Id. A factual attack, on the other hand, " disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction."
If the moving party makes a facial challenge, the court's inquiry is " confin[ed] . . . to allegations in the complaint." Savage v. Glendale Union High Sch., Dist. No. 205,
Maricopa Cnty., 343 F.3d 1036, 1040 (9th Cir. 2003). Such allegations are taken by the court as true. ...