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Moseley v. Citimortgage, Inc.

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

February 19, 2015

PAUL MOSELEY, Plaintiff,
v.
CITIMORTGAGE, INC., Defendant.

ORDER: (1) GRANTING DEFENDANT CITIMORTGAGE, INC.'S MOTION TO DISMISS AND (2) DENYING PLAINTIFF'S MOTION TO STRIKE AND MOTION TO DENY DEFENDANT CITIMORTGAGE, INC.'S MOTION TO DISMISS

ROBERT J. BRYAN, District Judge.

This matter comes before the Court on defendant's Motion to Dismiss (Dkt. 23) and on plaintiff's "Motion to Strike [Defendant's] False Statements Contained in Its Motion to Dismiss Pursuant Fed.R.Civ.P. Rule 12 (f) and Deny [Defendant's] Motion to Dismiss" (Dkt. 24). The Court has considered the pleadings filed in support of, and in opposition to, the motions and the file herein.

PROCEDURAL HISTORY

Proceeding on his second amended complaint for "Satisfaction of CitiMortgage Lien that Encumbers Personal Real Property, " plaintiff seeks to have the Court discharge his debt to defendant because defendant refused to accept plaintiff's payment. Dkt. 15. In addition, plaintiff alleges claims under the Federal Debt Collection Practices ("FDCPA") and the Fair Credit Reporting ("FCRA") acts. Id.

On January 15, 2015, defendant filed a motion to dismiss plaintiff's action for failure to state any claim. Dkt. 23.

On January 28, 2015, plaintiff filed a motion to strike defendant's allegedly false statements contained in defendant's motion to dismiss and to deny defendant's motion to dismiss. Dkt. 24. In addition, on February 6, 2015, plaintiff filed a response to defendant's motion to dismiss. Dkt. 27.

On February 13, 2015, defendant filed a reply.

RELEVANT FACTS

On March 2, 2008, plaintiff borrowed $262, 500.00 from, and executed a promissory note for the same payable to, CitiMortgage, Inc. ("CitiMortgage"). Dkt. 15, at 10-34. The note was secured by a Deed of Trust ("DOT"), identifying CitiMortgage as the Lender and plaintiff and his wife as the Borrower. Id., at 11. Plaintiff's last payment on the note appears to have been made in October 2010. Id., at 3.

On May 5, 2011, before plaintiff filed this action, plaintiff sued CitiMortgage to, inter alia, quite title in the property, alleging RESPA and TILA violations. Moseley v. CitiMortgage Inc., C11-5349RJB, 2011 WL 5175598 (W.D.Wash.2011) aff'd, 564 Fed.Appx. 300 (9th Cir. 2014). This Court granted CitiMortgage's motion for a summary judgment, dismissing all plaintiff's claims. On August 25, 2014, the U.S. Ninth Circuit Court of Appeals affirmed. Moseley v. CitiMortgage Inc., 564 Fed.Appx. 300 (9th Cir. 2014).

On October 9, 2014, six weeks later, plaintiff filed the present action, which, in fact, arose in 2012. On February 16, 2012, plaintiff mailed CitiMortgage via certified mail a personal check for $283, 839.00, the loan's payoff amount at the time. Dkt. 15. Plaintiff had written "EFT Only" and "FOR DISCHARGE of DEBT" on the check. Id., at 36. On February 20, 2012, CitiMortgage refused plaintiff's payment, requiring certified funds instead. Id., at 41. Instead of tendering any other payment to CitiMortgage, plaintiff filed the present action, alleging that the debt has been discharged to the extent of the payment's amount because CitiMortgage refused to accept plaintiff's payment.

MOTION TO DISMISS STANDARD

Fed. R. Civ. P. 12(b) motions to dismiss may be based on either the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Department, 901 F.2d 696, 699 (9th Cir. 1990). Material allegations are taken as admitted and the complaint is construed in the plaintiff's favor. Keniston v. Roberts, 717 F.2d 1295 (9th Cir. 1983). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007) (internal citations omitted). "Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. at 1965. Plaintiffs must allege "enough facts to state a claim to relief that is plausible on its face." Id. at 1974.

Under Fed.R.Civ.P. 12(d), if, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. However, when a plaintiff has attached various exhibits to the complaint, those exhibits may be considered in determining whether dismissal was proper without converting the motion to one for summary judgment. Cooper v. Bell, 628 F.2d 1208, 1210 n. 2 (9th Cir.1980). Accordingly, the Court has confined itself to plaintiff's second amended complaint (Dkt. 15) and exhibits attached thereto. The Court has considered no other matters outside the pleadings, ...


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