United States District Court, D. Hawaii
THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF THE CWMBS INC., CHL MORTGAGE PASS-THROUGH TRUST 2006-OA5, MORTGAGE PASS THROUGH CERTIFICATES, SERIES 2006-OA5, a Delaware corporation, Plaintiff,
LEN C. PERRY JR., an individual; NATHAN JON LEWIS, an individual; and 3925 KAMEHAMEHA RD PRINCEVILLE, HI 96722, LLC, a Hawaii limited liability corporation, Defendants.
ORDER GRANTING PLAINTIFF'S MOTION TO DISMISS
AMENDED COUNTER-COMPLAINT WITH LEAVE TO AMEND
DERRICK K. WATSON, UNITED STATES DISTRICT
Bank of New York Mellon (“BONY Mellon”), fka The
Bank of New York, seeks dismissal of the Amended
Counter-Complaint filed by Defendants Len C. Perry, Nathan J.
Lewis, and 3925 Kamehameha Rd Princeville, HI 96722, LLC (the
“LLC”). Although not entirely clear, Defendants
appear to allege counterclaims sounding in fraud, in response
to Plaintiff's attempt to set aside certain false liens
and other fraudulent documents recorded by Defendants
relating to real property on Kauai. Because it is difficult
to discern any cognizable claims for relief in the Amended
Counter-Complaint, and any mention of statutory or common law
causes of action lack plausible, supporting factual
allegations, Plaintiff's Motion to Dismiss is GRANTED.
Defendants are permitted limited leave to file a further
amended counter-complaint in accordance with the terms of
this order, no later than December 29, 2017, with
filed this action on June 21, 2017, seeking cancellation of
certain instruments based on Defendants' alleged improper
and fraudulent recordings in the land records relating to
Plaintiff's title to real property, including deeds
purporting to convey title to Defendants. See
Compl., Dkt. No. 1. It asserts claims against Defendants for
cancellation of instruments, quiet title, slander of title,
unjust enrichment, and declaratory judgment. Compl.
¶¶ 39-93. On August 2, 2017, Defendant Nathan Jon
Lewis, proceeding pro se, filed an Answer, in which Lewis
attempted to respond to the Complaint on behalf of all
Defendants. 8/2/17 Answer, Dkt. No. 17. Lewis purported to
“act as Trustee for the Len C. Perry, Jr. account,
” as “the authorized Trustee [with] a Special
Power of attorney over this matter to represent Len C. Perry,
Jr.  as his agent.” 8/2/17 Answer, ¶¶ A, K.
Lewis also avers that he is “the sole member of 3925
Kamehameha Rd Princeville HI 96722, LLC.” Id.
¶ L. With their Answer, Defendants filed a
“Counter Complaint” against BONY Mellon, alleging
violations of numerous federal and state statutes, and
seeking dismissal of the Complaint, summary judgment, and
costs. 8/2/17 Counter-Complaint, Dkt. No. 17-1.
then filed their “Amended Counter-Complaint for
Collusion, Conspiracy and Fraudulent Misrepresentation”
on August 21, 2017, again seeking dismissal of
Plaintiff's Complaint, summary judgment in favor of
Defendants, and “full restitution of lien claim,
” which in turn references UCC-1 financing statements
recorded by Defendants in the Hawaii Bureau of
Conveyances. Dkt. No. 19. According to Plaintiff, these
UCC-1 statements falsely identified Plaintiff as a debtor.
See generally Compl. As best the Court can discern,
Defendants assert counterclaims based upon their claimed
right to ownership of the subject property, stemming from
Plaintiff's failure to respond to Defendant's
“Good Faith Tendered Offer” to purchase the
property. Am. Counter-Compl. ¶ 31. Defendants deemed
Plaintiff in default and indebted to Defendants by
“Silent Acquiescence.” Am. Counter-Compl. ¶
32. To enforce their supposed debt, Defendants then
“foreclosed” on the property and claim that title
was somehow transferred to them during a purported
non-judicial foreclosure proceeding because Perry
“perfected a lien on the mortgage, ” and
Plaintiff “forfeited the entirety based on tac [sic]
procurement and silent acquiescence.” Am.
Counter-Compl. Ex. B at 7, Dkt. No 19-4. Defendants' Bill
of Particulars lists “recommended penalties” for
nineteen separate violations of the United States Code,
including, for example: treason ($250, 000); attempted
slavery ($250, 000); attempted genocide ($1, 050, 000);
misprision of felony ($500); attempted extortion ($5, 000);
perjury and suborning perjury ($2, 000 each); civil
racketeering ($25, 000); and criminal racketeering ($250,
000). Am. Counter-Compl. Ex. A, Dkt. No. 19-2.
Plaintiff's Motion To Dismiss
Mellon moves to dismiss the Amended Counter-Complaint because
it fails to state a claim for relief or, alternatively, it
seeks a more definite statement under Federal Rule of Civil
Procedure 12(e). It argues that the Amended Counter-Complaint
fails to provide Plaintiff with notice of any legal claims,
and instead, Defendants purport to bring causes of action for
“Dismissal with Prejudice, ” “Summary
Judgment, ” and “Full Restitution of Lien Claim
in Full, ” none of which are viable claims.
Rule of Civil Procedure 12(b)(6) authorizes the Court to
dismiss a complaint that fails “to state a claim upon
which relief can be granted.” Rule 12(b)(6) is read in
conjunction with Rule 8(a), which requires “a short and
plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). The Court
may dismiss a complaint either because it lacks a cognizable
legal theory or because it lacks sufficient factual
allegations to support a cognizable legal theory.
Balistreri v. Pacifica Police Dep't., 901 F.2d
696, 699 (9th Cir. 1988). Pursuant to Ashcroft v.
Iqbal, “[t]o 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.'” 555 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 570
(2007)). “[T]he tenet that a court must accept as true
all of the allegations contained in a complaint is
inapplicable to legal conclusions.” Id.
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). 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.”
Id. (citing Twombly, 550 U.S. at 556).
Factual allegations that only permit the court to infer
“the mere possibility of misconduct” do not
constitute a short and plain statement of the claim showing
that the pleader is entitled to relief as required by Rule
8(a)(2). Id. at 679.
Defendants are proceeding pro se, the Court liberally
construes their filings. See Erickson v. Pardus, 551
U.S. 89, 94 (2007); Eldridge v. Block, 832 F.2d
1132, 1137 (9th Cir. 1987) (“The Supreme Court has
instructed the federal courts to liberally construe the
‘inartful pleading' of pro se litigants.”)
(citing Boag v. MacDougall, 454 U.S. 364, 365 (1982)
(per curiam)). The Court recognizes that “[u]nless it
is absolutely clear that no amendment can cure the defect . .
. a pro se litigant is entitled to notice of the
complaint's deficiencies and an opportunity to amend
prior to dismissal of the action.” Lucas v.
Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995);
see also Crowley v. Bannister, 734 F.3d 967, 977-78
(9th Cir. 2013).
review of the Amended Counter-Complaint, the Court finds
that, even liberally construed, Defendants fail to state any
basis for judicial relief against BONY Mellon.
Defendants' pleading is largely incoherent, and to the
extent the Court can ascertain any claim, Defendants fail to
provide sufficient factual content to enable the Court to
draw the reasonable inference that BONY Mellon is
liable for the misconduct alleged. In short, even accepting
the truth of the limited, factual allegations, the Amended
Counter-Complaint fails to state a claim to relief that is
plausible on its face. Plaintiff's Motion is therefore
granted with Defendants given limited leave to amend,
consistent with the instructions below.
The Amended Counter-Complaint Fails To State A
detailed more fully below, the allegations in the Amended
Counter-Complaint are insufficient, consisting largely of
conclusory statements, without necessary factual
support. Defendants specifically allege the
following scheme to defraud by BONY Mellon-
31. The Counter Defendants did not send our Good Faith
Tendered Offer back and therefore used the benefit of the