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Ogorsolka v. Residential Credit Solutions, Inc.

United States District Court, W.D. Washington, Seattle

October 17, 2014

JOHN R. OGORSOLKA and LISA K. OGORSOLKA, Plaintiffs,
v.
RESIDENTIAL CREDIT SOLUTIONS, INC., et al., Defendants.

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

RICARDO S. MARTINEZ, District Judge.

I. INTRODUCTION

This matter comes before the Court on Defendant Bank of America's Motion to Dismiss under Rule 12(b)(6) for failure to state a claim (Dkt. #31). Defendant argues that Plaintiffs' First Amended Complaint should be dismissed because it fails to remedy deficiencies in their previously-dismissed Complaint, and continues to fail to allege facts sufficient to support any of the alleged causes of action against it. Plaintiffs respond that their newly-alleged facts support their claims, that they have adequately remedied previously-identified deficiencies, and that they have demonstrated plausible claims on the face of their Amended Complaint. For the reasons set forth below, the Court disagrees with Plaintiffs and GRANTS Defendant's motion to dismiss.

II. BACKGROUND

The relevant background to this case has been previously set forth by the Court, and is incorporated by reference herein. See Dkt. #28. The Court previously dismissed Plaintiffs' Complaint for their failure to state claims upon which relief could be granted. Id. However, the Court allowed Plaintiffs leave to amend their Complaint, which they did, by way of filing a First Amended Compliant on July 9, 2014. Dkt. #30. Against Defendant Bank of America, Plaintiffs allege violations of Washington's Consumer Protection Act ("CPA") and the Deed of Trust Act ("DTA"), allegations of fraud and misrepresentation, and breach of contract. Dkt. #30 at ¶ ¶ 70-108. Defendant Bank of American now moves to dismiss all of the allegations against it.

III. DISCUSSION

A. Standard of Review

On a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), all allegations of material fact must be accepted as true and construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). However, the court is not required to accept as true a "legal conclusion couched as a factual allegation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The Complaint "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Id. at 678. This requirement is met 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. Absent facial plausibility, Plaintiffs' claims must be dismissed. Twombly, 550 U.S. at 570.

Though the Court limits its Rule 12(b)(6) review to allegations of material fact set forth in the complaint, the Court may consider documents for which it has taken judicial notice. See F.R.E. 201; Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007). Here, the Court has taken judicial notice of and considers herein the documents set forth in Defendants' Request for Judicial Notice. See Dkt. #9. The Court agrees that judicial notice is appropriate because the documents presented are all matters of public record, having been filed in the King County Recorder's Office. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001).

B. Documents for Judicial Notice

Defendant asks the Court to consider two publicly available documents that were not attached to, but were relied upon in, the First Amended Complaint. The documents include a copy of the Deed of Trust recorded on January 10, 2007 (Dkt. #32, Ex. A), and a copy of the Assignment of the Deed Trust recorded on December 14, 2011 (Dkt. #32, Ex. B). On a Rule 12(b)(6) motion, the Court may consider documents "whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the [plaintiff's] pleading." Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005) (citations omitted). The documents presented fit this category and may be properly considered by the Court.

C. Plaintiffs' First Amended Complaint

A review of Plaintiffs' First Amended Complaint reveals that Plaintiffs add little new factual support for their legal contentions. By the Court's count, Plaintiffs' new facts are set forth at ¶ ¶ 8-9, 14-23, 31-33, 38-40, and 43-45. These paragraphs primarily add additional information regarding the Plaintiffs' reasons for securing the loan at issue and the identity of their initial lender (¶ ¶ 8-9), who serviced the loan and to whom Plaintiffs believed they were making payments to, whether the entities still exist and Plaintiffs' belief that Countrywide Financial (a non-party) was corrupt (¶ ¶ 14-20), Plaintiffs' financial situation and prior dealings with North Country Bank (also a non-party) (¶ ¶ 21-23), Plaintiffs' suspicions that there had been "nefarious activity" with respect to their home loan and the alleged damages resulting from that activity (¶ ¶ 31-33 and 38-40), and Plaintiffs' belief that others have successfully litigated against companies using "robo-signers" (¶ ¶ 43-45). Taking these new "facts" as true, the Court finds that Plaintiffs fail to remedy the deficiencies previously set forth in its Order dismissing Plaintiffs' initial Complaint. See Dkt. #28.

As the Court previously noted, Plaintiffs' claims rest on three overarching and wellworn theories: (1) that Defendant Mortgage Electronic Registration Systems, Inc. ("MERS") was an ineligible beneficiary under the Deed of Trust, which rendered the Note and Deed of Trust void; (2) the Note was deprived of its status as a negotiable instrument once it was securitized, which again rendered the Note and Deed of Trust void; and (3) the Defendant banks were required to negotiate in good faith to provide Plaintiffs with a loan modification. Further, the Court previously found that, as alleged, no ...


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