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Pascua v. OneWest Bank, N. A.

United States District Court, D. Hawaii

January 31, 2017




         On September 6, 2016, Defendant CIT Bank, N.A., formerly known as OneWest Bank N.A. (“Defendant”), filed its Motion to Dismiss or, in the Alternative, for a More Definite Statement (“Motion”). [Dkt. no. 30.] Pro se Plaintiff Magdalena Marcos Pascua (“Plaintiff”) filed her memorandum in opposition on September 19, 2016, and Defendant filed its reply on November 7, 2016. [Dkt. nos. 36, 37.] On November 7, 2016, this Court issued an entering order (“EO”) finding 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”). [Dkt. no. 38.] On December 7, 2016, Plaintiff filed a document that this Court construed as an additional memorandum in opposition to the Motion. [Dkt. nos. 41 (Plaintiff's document), 43 (EO construing document).] After careful consideration of the Motion, supporting and opposing memoranda, and the relevant legal authority, Defendant's Motion is HEREBY GRANTED. This Court must DISMISS Plaintiff's case WITH PREJUDICE because the pending state court case regarding the same property at issue in this case has priority.


         On January 15, 2016, Plaintiff filed her Complaint under 42 U.S.C. § 1981, Fifth, Ninth, and Fourteenth Amendment of the U.S. Constitution and 18 U.S.C. § 1028 (“Complaint”). The Complaint alleges that Defendant has filed an action in state court to foreclose on Plaintiff's home (“Foreclosure Action”). According to the Complaint, the borrower on the loan that Defendant is trying to foreclose was Plaintiff's brother, Napoleon J. Marcos (“Marcos”). Plaintiff alleges that she purchased the house from Marcos for $200, 000, but he subsequently obtained loans from Defendant totaling over $500, 000 using Plaintiff's home as collateral. He used the proceeds from the loan to flee to the Phillippines. His whereabouts are currently unknown. [Complaint at ¶¶ 3-5, 7.] Plaintiff alleges that Defendant has attempted a wrongful foreclosure because: the property is in her name, not Marcos's; she never obtained a loan from, or entered into a contract with, Defendant; she has never been a customer of Defendant's; and Defendant is attempting to collect Marcos's debt from her under the guise of a foreclosure. [Id. at ¶¶ 3, 6, 8-9.]

         The Complaint alleges the following claims: violation of Plaintiff's “federal constitutional rights to property” (“Count I”); [id. at ¶ 13;] and an unspecified claim alleging that Defendant's actions caused Plaintiff to suffer “mental anguish, emotional disturbance, stresses” and caused her to incur damages, including incurring legal fees (“Count II”) [id. at ¶ 14]. Plaintiff prays for the following relief: $500, 000 in compensatory damages; $500, 000 in punitive damages; an injunction precluding Defendant from pursing the Foreclosure Action in state court; attorneys' fees and costs, pursuant to 42 U.S.C. § 1988; and any other appropriate relief. [Id. at pg. 1 & ¶¶ 15-19.]

         In the instant Motion, Defendant urges this Court to dismiss the Complaint: 1) based on the prior exclusive jurisdiction doctrine; 2) based on the Colorado River abstension doctrine;[1] or 3) because both Counts I and II fail to state any cognizable claims. In the alternative, Defendant argues that this Court should order Plaintiff to file a more definite statement, pursuant to Fed.R.Civ.P. 12(e).


         I. Request for Judicial Notice

         Defendant filed a Request for Judicial Notice (“RJN”) on September 6, 2016, and an errata to the RJN on December 19, 2016. [Dkt. no. 31.] Defendant asks this Court to take judicial notice of the Complaint for Foreclosure (“Foreclosure Complaint”) in the Foreclosure Action - Onewest Bank, FSB v. Napoleon Javier Marcos, et al., Civil No. 13-1-0439-02 - filed in the State of Hawai`i First Circuit Court on February 14, 2013. [R]N, Exh. A (Foreclosure Complaint).]

         A court “must take judicial notice if a party requests it and the court is supplied with the necessary information.” Fed.R.Evid. 201(c)(2). “The court may judicially notice a fact that is not subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Rule 201(b)(2). This district court has stated:

[T]he court may not take judicial notice of a matter of public record in order to consider “the truth of the facts recited therein.” See [Lee v. City of Los Angeles, 250 F.3d 668');">250 F.3d 668, ] 690 [(9th Cir. 2001).[2] The court may only take judicial notice of the existence of the matter. See id. (citing S. Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Grp. Ltd., 181 F.3d 410, 426-27 (3d Cir. 1999)).
Matters of public record that may be judicially noticed include . . . documents filed with courts, “both within and without the federal judicial system, if those proceedings have a direct relation to the matters at issue.” United States v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992). . . .

Bartolotti v. Maui Mem'l Med. Ctr., Civil No. 14-00549 SOM/KSC, 2015 WL 4545818, at *3 (D. Hawai`i July 28, 2015). This Court therefore GRANTS Defendant's RJN insofar as this Court takes judicial notice of the filing of the Foreclosure Complaint, but not the truth of the facts recited therein. This Court also takes judicial notice of the proceedings in the Foreclosure Action. See Rule 201(c)(1) (court may take judicial notice sua sponte).

         II. Prior Exclusive ...

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