United States District Court, D. Hawaii
ORDER GRANTING DEFENDANT CITIMORTGAGE, INC.'S
MOTION TO DISMISS, ECF NO. 9, WITH LEAVE TO AMEND
Michael Seabright Chief United States District Judge
Bryant Delmar Wilson and Tanisha Janeen Wilson
(“Plaintiffs”) have filed a multicount Complaint
that appears to allege wrongful conduct regarding a mortgage
loan Plaintiffs obtained on certain property in Kapolei,
Hawaii (“the Property”). Defendant CitiMortgage,
Inc. (“CitiMortgage”) has moved to dismiss the
Complaint under Federal Rules of Civil Procedure 12(b)(1),
12(b)(6), and 12(b)(7). For the following reasons, the Motion
is GRANTED; Plaintiffs are granted leave to file an Amended
Complaint in compliance with this decision no later than June
allege that they obtained a home mortgage loan on the
Property in 2009 from Home Savings of America Corporation.
See Compl. ¶ 11, ECF No. 1. They identify
Defendant CitiMortgage as the “present servicer”
on the loan, although they also refer to the mortgage deed
and note as having been “originated by [CitiMortgage,
]” and they assert that “Federal National
Mortgage Corporation was the successor in interest to
[CitiMortgage].” Id. ¶¶ 6, 12, 41.
Their precise allegations regarding the loan are unclear, but
they suggest that they were not qualified for the loan when
they obtained it, that they attempted to modify the loan in
2011 and 2012 (and perhaps later), and that they were not
properly notified when the loan was purchased on one or more
occasions. Id. ¶¶ 16, 38-39. They also
allege that they were “forced, tricked, and mislead
[(sic)]into parting with their property.” Id.
¶ 77. Reading between the lines of the Complaint, the
court surmises that the Property may have been or may now be
the subject of a foreclosure action. But the Complaint
includes no details about any such proceedings.
bulk of Plaintiffs' factual allegations are simply
indecipherable. They appear to be mostly lengthy excerpts
from an unattached “forensic audit . . . performed on
the property.” Id. ¶ 12. The author of
this “audit” apparently opined that he found
“indicia of deception and fraud” and a cloud on
“the chain of title on the . . . mortgage deed”
caused by CitiMortgage's use of “deception and
fraudulent assignments to conceal the transfer history and
identities of hidden investors.” Id.; see
also id. ¶¶ 12-41. The final numbered
paragraph of the “general allegations” comprises
approximately eight pages of what appear to be merely
quotations from decisions in unrelated court cases involving
unrelated parties. Id. ¶ 42.
filed their Complaint on February 2, 2018. ECF No. 1. They
allege eleven counts labeled as follows: (1) “Lack of
Standing/Wrongful Attempt to Foreclosure, ” (2)
“Fraud in the Concealment, ” (3) “Fraud in
the Inducement, ” (4) “Unconscionable Contract,
” (5) “Breach of Contract, ” (6)
“Breach of Fiduciary Duty, ” (7) “Quiet
Title, ” (8) “Slander of Title, ” (9)
“Declaratory Relief, ” (10) “CCPA, ”
and (11) “Violation of Federal Regulations, Regulation
X, 12 C.F.R. § 1024.41 (b)(2)(i)(A).” ECF No. 1
(emphasis omitted). Defendant CitiMortgage filed its Motion
to Dismiss on February 27, 2018, ECF No. 9, and this court
set a due date of April 15, 2018 for Plaintiffs'
Opposition. ECF No. 8.
Opposition was filed by that date, this court ordered
Plaintiffs to file a written response by May 3, 2018, stating
whether they intended to oppose the Motion to Dismiss and if
so, why they failed to meet the April 15, 2018 deadline. ECF
No. 16. No such response or Opposition was filed before the
hearing, but the court accepted Plaintiffs' written
Opposition submitted and filed at the hearing. ECF No. 19.
hearing was held on May 8, 2018.
STANDARDS OF REVIEW
Federal Rule of Civil Procedure 12(b)(6)
Rule of Civil Procedure 12(b)(6) permits a motion to dismiss
for “failure to state a claim upon which relief can be
granted.” A Rule 12(b)(6) dismissal is proper when
there is either a “lack of a cognizable legal theory or
the absence of sufficient facts alleged.” UMG
Recordings, Inc. v. Shelter Capital Partners,
LLC, 718 F.3d 1006, 1014 (9th Cir. 2013) (quoting
Balistreri v. Pacifica Police Dep't, 901 F.2d
696, 699 (9th Cir. 1988)).
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, 678 (2009) (quoting
Bell Atl. 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, ” and “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Iqbal, 556 U.S.
at 678 (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 show that the pleader is entitled to
relief. Id. at 679.
court liberally construes pro se pleadings. See Eldridge
v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987).
“Unless 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).
Federal Rule of Civil Procedure 8
may also be warranted for failure to comply with Federal Rule
of Civil Procedure 8. Rule 8 mandates that a complaint
include a “short and plain statement of the
claim.” Fed.R.Civ.P. 8(a)(2). Further, it requires that
“each allegation must be simple, concise, and
direct.” Fed.R.Civ.P. 8(d)(1). A complaint that is so
confusing that its “‘true substance, if any, is
well disguised'” may be dismissed for failure to
satisfy Rule 8. Hearns v. San Bernardino Police
Dep't, 530 F.3d 1124, 1131 (9th Cir. 2008) (quoting
Gillibeau v. City of Richmond, 417 F.2d 426, 431
(9th Cir. 1969)).
Federal Rule of ...