United States District Court, W.D. Washington
DENNIS P. MCGEOUGH, et al., Plaintiffs,
NATIONSTAR MORTGAGE LLC, et al., Defendant.
Honorable Richard A. Jones United States District Judge.
matter comes before the Court on three motions to dismiss
brought by Nationstar Mortgage, LLC, Bank of America, and
Thomas P. Cialino (collectively, “Defendants”).
Dkts. #6, 11, 14. Plaintiffs Dennis and Katherine McGeough
(collectively, “Plaintiffs”) have not filed any
opposition to Defendants' motions. For the reasons that
follow, the Court GRANTS Defendants' motions and
DISMISSES this action with prejudice.
Complaint contains no factual background or explanation of
Plaintiffs' relationship to the Defendants. The Court
ascertains the following from a series of exhibits attached
to the Complaint: Plaintiffs obtained a mortgage loan from
Bank of America; Thomas Cialino, an attorney representing
Bank of America, sent a letter to Plaintiffs in October 2013
notifying them that servicing of their loan was transferred
to Nationstar Mortgage; and Nationstar notified Plaintiffs
that the loan was in default.
bring claims for conversion against Bank of America, Cialino,
and Nationstar, alleging that each “has converted the
plaintiffs' property for its own gains and profit.”
Dkt. # 1-1 at 3, 6, 8. Plaintiffs allege that each Defendant
“has denied the plaintiff[s] free use of his [sic]
property by engaging in a foreclosure action which is not
authorized by law, in which the defendant has no legal rights
or interests and which may involve the laundering of forged
and counterfeited negotiable instruments using state laws and
the county court system.” Id. at 6. While the
alleged foreclosure appears to be the crux of Plaintiffs'
claim, Plaintiffs also appear to allege an unlawful
acquisition of their personal information, including their
“legal names, dates of birth, signatures, credit
information, banking information, tax and financial
information and other private information.”
Id. at 3. Plaintiffs allege that this information
was “acquired and used for commercial purposes without
the[ir] express consent” and “to make it appear
as if by having this information, the defendant[s] had some
legal right to undertake the actions involving foreclosure
against plaintiffs' property.” Dkt. # 1-1 at 3.
three Defendants now move to dismiss Plaintiffs' claims
under Federal Rule of Civil Procedure 12(b)(6).
Rule of Civil Procedure 12(b)(6) permits a court to dismiss a
complaint for failure to state a claim upon which relief can
be granted. The rule requires the Court to assume the truth
of the Complaint's factual allegations and credit all
reasonable inferences arising from those allegations.
Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007).
However, a court “need not accept as true conclusory
allegations that are contradicted by documents referred to in
the complaint.” Manzarek v. St. Paul Fire &
Marine Ins. Co., 519 F.3d 1025, 2031 (9th Cir. 2008).
The plaintiff must point to factual allegations that
“state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 568 (2007). If the plaintiff succeeds, the complaint
avoids dismissal if there is “any set of facts
consistent with the allegations in the complaint” that
would entitle the plaintiff to relief. Id. at 563;
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
as here, a plaintiff proceeds pro se, the court must
construe the “complaint liberally even when
evaluating it under the Iqbal standard.”
Johnson v. Lucent Techs. Inc., 653 F.3d 1000, 1011
(9th Cir. 2011) (citing Hebbe v. Piller, 627 F.3d
338, 342 (9th Cir. 2010). “Furthermore, ‘[l]eave
to amend should be granted unless the pleading could not
possibly be cured by the allegation of other facts, and
should be granted more liberally to pro se plaintiffs.”
Id. (quoting McQuillion v. Schwarzenegger,
369 F.3d 1091, 1099 (9th Cir. 2004)).
proceeding to the substance of the motions, the Court notes
that Plaintiffs have failed to file any opposition to
Defendants' motions. Pursuant to this Court's Local
Rules, Plaintiffs' failure “to file papers in
opposition to a motion . . . may be considered by the court
as an admission that the motion has merit.”
See Local Rules W.D. Wash. LCR 7(b)(2). While
parties proceeding pro se are afforded substantial
lenience, they must still comply with the Local Rules
(cf. Draper v. Coombs, 792 F.2d 915, 924 (9th Cir.
1986)), which require opposition papers to “be filed
and served not later than the Monday before the noting
date.” LCR 7(d)(3). The December 2016 noting dates for
Defendants' motions passed without opposition from
Plaintiffs. Therefore, the Court concludes that Plaintiffs
have admitted that the motions have substantial merit and
should be granted.
Defendants' arguments that Plaintiffs have failed to
properly state a claim for conversion are compelling.
“Conversion is the unjustified, willful interference
with a chattel which deprives a person entitled to property
of possession.” Lang v. Hougan, 150 P.3d 622,
626 (Wash. App. 2007). “A chattel is ‘[a]n
article of personal property, as distinguished from real
property[, ] [a] thing personal and moveable.” In
re Marriage of Langham, 106 P.3d 212, 218 (Wash. 2005)
(citing Black's Law Dictionary 251 (8th Ed. 2004)). While
Plaintiffs initially assert their property interest in their
personal information-names, dates of birth, signatures,
credit information, banking information, tax information, and
financial information-it appears that their cause of action
is focused on a piece of real property they claim has been
wrongfully foreclosed on. Because it is axiomatic that real
property is not chattel and, therefore, cannot be converted,
there is no legal basis for Plaintiffs' claim.
the foregoing reasons, the Court GRANTS Defendants motions to
dismiss. Dkts. # 6, 11, 14. Plaintiffs have failed to oppose
the motions and to state a valid claim for conversion.
Plaintiffs' Complaint is therefore ...