United States District Court, D. Oregon
Rudie Thomas, Hillsboro, OR, Pro Se Plaintiff.
James P. Laurick, Kilmer Voorhees & Laurick, PC, Portland, OR, Ellis W. Wilder, McCarthy & Holthus, Portland, OR, Attorneys for Defendants.
OPINION & ORDER
MARCO A. HERNNDEZ, District Judge.
Plaintiff Rudie Thomas alleges ten causes action, including fraud, violation of the Truth in Lending Act, violation of California's Rosenthal Act, negligence, violation of the Real Estate Settlement Procedures Act, breach of fiduciary duty, violations of California's business and professions code, breach of contract, breach of implied covenant of good faith and fair dealing, and wrongful foreclosure. An entry of default has been entered against Defendant Quality Loan Service Corporation.
Defendants Bank of America NA, MERS, and Wilshire Credit Corporation (collectively BANA) move to dismiss for failure to state a claim and for lack of jurisdiction . Defendant Quality Loan moves to set aside the entry of default and also moves to dismiss for failure to comply with Rule 8 and for failure to state a claim . Because Plaintiff's claims against Defendants BANA are barred by res judicata, their motion to dismiss is granted and Plaintiff's claims are dismissed with prejudice. Defendant Quality Loan's motion is also granted because there is good cause to set aside the entry of default. I also find that Plaintiff has failed to state a claim against Quality Loan and that Plaintiff's complaint fails to comply with Rule 8.
Plaintiff's complaint is 74 pages long with over 50 pages of exhibits. The following allegations were discernable. Plaintiff alleges that he is the owner of residential property located at 5048 Crescent Bay Drive in San Diego, California. Compl. ¶¶ 7, 22. Plaintiff entered into a loan with Resmae Mortgage for $632, 454.40. Id . at ¶ 40, Compl. Ex. 1 at 2. The loan was secured by a deed of trust for the residential property that was recorded March 21, 2006. Id . at ¶¶ 40, 44. Wilshire Credit acquired the rights to service the loan. Id . at ¶ 45. On August 15, 2007, Wilshire Credit filed a notice of default in San Diego County. Id . at ¶ 46. Throughout the complaint, Plaintiff repeatedly alleges that MERS was a suspended California corporation as of December 1, 2005. See Compl.
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the claims. Navarro v. Block , 250 F.3d 729, 732 (9th Cir. 2001). "All allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party." Am. Family Ass'n, Inc. v. City & Cnty. of S.F. , 277 F.3d 1114, 1120 (9th Cir. 2002). However, the court need not accept conclusory allegations as truthful. Warren v. Fox Family Worldwide, Inc. , 328 F.3d 1136, 1139 (9th Cir. 2003) ("[W]e are not required to accept as true conclusory allegations which are contradicted by documents referred to in the complaint, and we do not necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations.") (quotation and citations omitted).
A motion to dismiss under Rule 12(b)(6) will be granted if plaintiff alleges the "grounds" of his "entitlement to relief" with nothing "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action[.]" Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555 (2007). "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 . (citations and footnote omitted).
To survive a motion to dismiss, the complaint "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face[, ]" meaning "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quotation omitted). Additionally, "only a complaint that states a plausible claim for relief survives a motion to dismiss." Id . at 679. The complaint must contain "well-pleaded facts" which "permit the court to infer more than the mere possibility of misconduct." Id.
I. Defendants BANA's Motion to Dismiss
Defendants BANA move to dismiss Plaintiff's complaint with prejudice because of improper service and res judicata. Defendants BANA has produced convincing evidence that they were never properly served by Plaintiff. The Salem, Oregon office of CT Corporation, where Plaintiff asserts that he served Defendants BANA, does not have any record of any attempted or actual service by Plaintiff. Poole Decl.  ¶¶ 8-9. Additionally, in a prior action involving Plaintiff and Bank of America in the Southern District of California, CT Corporation disputed Plaintiff's proof of ...