United States District Court, W.D. Washington, Seattle
WAYNE R. LAKE, et al, Plaintiffs,
MTC FINANCIAL, INC., et al., Defendants.
ORDER GRANTING MOTION TO DISMISS
L. ROBART United States District Judge
the court is Defendant Deutsche Bank Trust Company Americas
as Trustee for the Certificate Holders of Dover Mortgage
Holder Capital 2005-A Corporation Grantor Trust Certificate,
Series 2005-A's ("Deutsche Bank") motion to
dismiss Plaintiffs Wayne R. and Cynthia A. Lake's
(collectively, "the Lakes") complaint. (Mot. (Dkt.
# 8).) The Lakes, who are proceeding pro se, did not
respond to the motion to dismiss,  (See generally
Dkt.) The court has considered the motion, the relevant
portions of the record, and the applicable law. Being fully
advised,  the court GRANTS Deutsche Bank's
motion for the reasons set forth below.
case arises from the sale of the Lakes' home in
foreclosure. (Compl. (Dkt. # 1) at 2.) On October 11, 2002,
the Lakes signed a deed of trust for $145, 000.00, which was
recorded against the Lakes' residence in Lake Forest
Park, Washington. (Id.) The deed of trust secured a
promissory note that was payable to Bank of America, N.A.
(See id, at 9.) The complaint alleges that
"[a]n assignment of the trust deed and note was
purportedly executed on May 4th 2010 ... in which
the document purports to assign the note and trust deed to
the defendant, " Deutsche Bank. (Id.) The Lakes
allege that the original lender, Bank of America, N.A., has
nevertheless continued to "express the same interest as
it had before the purported assignment." (Id.)
October 29, 2015, Defendant MTC Financial, Inc. dba Trustee
Corps ("MTC") recorded a Notice of Trustee's
Sale, which scheduled a sale for March 11, 2016. (Gibbons
Deck (Dkt. # 9) ¶ 6, Ex. D; Compl., Ex. A at 37.) After
the March sale did not occur, MTC recorded a second Notice of
Trustee's Sale on May 24, 2016, which set September 23,
2016, as the date for the sale. (Gibbons Decl. ¶ 7, Ex.
E; Comply Ex. A at 25.) After the September sale did not
occur, MTC signed a third Notice of Trustee's Sale, which
was dated August 8, 2016, and scheduled, a sale for December
16, 2016.(Compl., Ex. A at 19.) The record does not
indicate whether the sale scheduled for December 16, 2016,
occurred; The Lakes also allege that on or about April 1,
2016, Deutsche Bank entered into a "License
Agreement" with them and agreed to purge its records and
databases of any and all information pertaining to the Lakes.
(Compl. at 17.) The Lakes attach a copy of the alleged
"License Agreement" as an exhibit to their
complaint. (See id., Ex. B.)
September 20, 2016, the Lakes filed this pro se
lawsuit against MTC, Deutsche Bank, and Defendant Regional
Trustee Services Corporation ("RTSC"). (See
generally Compl.) In their complaint, the Lakes allege
that Deutsche Bank violated the Fair Debt Collection
Practices Act (FDCPA), 15 U.S.C. § 1692 etseq.,
and breached the alleged "Licensing Agreement."
(Id. at 13, 17.) On November 14, 2016, Deutsche Bank
filed a motion to dismiss the Lakes' complaint (see
generally Mot.) to which the Lakes did not
respond (see generally Dkt). The court
now addresses Deutsche Bank's motion.
considering a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), the court construes the complaint in the
light most favorable to the nonmoving party. Livid
Holdings, Ltd, v. Salomon Smith Barney, Inc., 416 F.3d
940, 946 (9th Cir, 2005). The court must accept all
well-pleaded facts as true and draw all reasonable inferences
in favor of the plaintiff. Wyler Summit P 'ship v.
Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir.
1998). "To 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 Telesaurus VPC, LLC v.
Power, 623 F.3d 998, 1003 (9th Cir. 2010). A court may
dismiss a complaint as a matter of law if it lacks a
cognizable legal theory or states insufficient facts under a
cognizable legal theory. Balistreri v. Pacifica Police
Dep 't, 901 F.2d 696, 699 (9th Cir. 1990);
Robertson v. Dean Witter Reynolds, Inc., 749 F.2d
530, 534 (9th Cir. 1984).
court need not accept as true a legal conclusion presented as
a factual allegation. Iqbal, 556 U.S. at 678.
Although the pleading standard of Federal Rule of Civil
Procedure 8 does not require "detailed factual
allegations, " it demands more than "an unadorned,
Id. (citing Twombly, 550 U.S. at 555). A
pleading that offers only "labels and conclusions or a
formulaic recitation of the elements of a cause of
action" will not survive a motion to dismiss under'
Rule 12(b)(6). Id.
Documents the Court Considers
a district court may not consider material beyond the
complaint in ruling on a Rule 12(b)(6) motion to dismiss.
Lee v. City of L.A., 250 F.3d 668, 688 (9th Cir.
2001). The Ninth Circuit, however, has carved out limited
exceptions to this rule. First, a court may consider material
properly submitted as a part of the complaint. Id.
Second, a court may consider documents not physically
attached to the pleading if the contents are alleged in the
complaint and no party questions the authenticity.
Id. Third, under Federal Rule of Evidence 201, a
court may take judicial notice matters of public record.
Id. at 688-89. Rule 201 provides, in pertinent part,
"[a] judicially noticed fact must be one not subject to
reasonable dispute in that it is ... capable of accurate and
ready determination by resort to sources whose accuracy
cannot reasonably be questioned." Fed.R.Evid. 201(b)(2).
"A trial court may presume that public records are
authentic and trustworthy/' Gilbrookv. City of
Westminster, 177 F.3d 839, 858 (9th Cir. 1999), and
thus, fall within the purview of Rule 201, see also
Allshouse v. Caliber Home Loans, Inc., No.
CV1401287DMGJCX, 2014 WL 12594210, at *3 (CD. Cal. Oct. 29,
2014) ("Courts routinely take judicial notice of
assignments of deed of trust and similar recorded
documents" in motions to dismiss.).
on the foregoing authority, the court may consider the
documents the Lakes attach to their complaint. Lee,
250 F.3d at 688. Thus, the court considers the Notices of
Trustee's Sales (Compl., Ex. A at 19, 25, 37), the
original deed of trust (id. at 15), and the
communications sent from Bank of America, N.A. to the Lakes
(id. at 134, 137, 140, 143). The court also
considers the "License Agreement." (Compl., Ex. B.)
addition, Deutsche Bank asks the court to take judicial
notice of the assignment of the deed of trust from Bank of
America, N.A. to Deutsche Bank and the appointment of
ReconTrust Company N.A., as the successor trustee, both of
which have been recorded with the King County Recorder's
Office. (Mot. at 6; see also Gibbons Decl.
¶¶ 3-4, Exs. A-B.) Deutsche Bank further requests
notice of the appointment of successor trustee to MTC on July
2, 2015, which was also recorded with the King
County Recorder's Office. (Mot. at 6; see also
Gibbons Decl. ¶ 5, Ex. C.)
Lakes did not respond to Deutsche Bank's request for
judicial notice. (See generally Diet.) Although the
Lakes allege in their complaint that the "defendant
delivered to the plaintiff written communications that were
made to look like or falsely represent documents authorized,
issued, or approved by a court, official, or agency of the
United States" (Compl. at 12),  this allegation does not
overcome the presumption that public records are authentic
and trustworthy, Gilbrook, 177 F.3d at 858. Indeed,
the court does not need to accept as true the Lakes'
allegation that the documents were false or fraudulent
because the allegation is a legal conclusion, and the Lakes
did not allege sufficient facts from which the court could
reasonably infer that the documents were false or fraudulent.
Iqbal, 556 U.S. at 678. Thus, the court grants
Deutsche Bank's request for judicial notice.
C. Motion to Dismiss
Lakes allege claims based on violations of the FDCPA and
breach of contract. (See generally Compl.) Deutsche
Bank moves for the dismissal ...