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Singh v. Shellpoint Mortgage Servicing

United States District Court, D. Oregon, Portland Division

November 11, 2019


          John A. Cochran Pacific Property Law LLC Attorney for Plaintiff

          David J. Elkanich Nellie Q. Barnard Holland & Knight LLP Attorneys for Defendants

          OPINION & ORDER


         Plaintiff Gurcharan Singh brings seven claims for relief against Defendants Shellpoint Mortgage Servicing and MTGLQ Investors, L.P. These claims include: (1) a request for declaratory judgment, (2) unjust enrichment and fraud, (3) violations of the Fair Debt Collection Practices Act, (4) conversion, (5) breach of good faith and duties of care, (6) violation of the Equal Credit Opportunity Act and Fair Housing Act, and (7) misrepresentation. Before the Court is Defendants' motion to dismiss Plaintiff's amended complaint for failing to state a claim upon which relief may be granted. For the reasons that follow, Defendants' motion is GRANTED.


         On July 19, 2001, Plaintiff executed a residential Deed of Trust for the property located at 14599 NE Brazee Court in Portland, Oregon, and secured a Note in the amount of $160, 000. Am. Compl. ¶ 1; Mot. Judicial Notice, Ex. B. In June 2017, Plaintiff was promised a favorable loan modification on that Note. Id. In return, Plaintiff paid “approximately $125, 413 to make the loan current/not in default status.” Id. Instead of receiving a loan modification, however, Plaintiff was told he needed to pay an additional $4, 816.24 “to make the loan current.” Id. Plaintiff paid the additional $4, 816.24, but still did not receive a loan modification. Id. After repeated calls to Defendants' representative, who initially promised to investigate the matter, Plaintiff was eventually told that the representative “could not help in any way” and “Plaintiff would have to simply find another bank for a better loan.” Id. ¶ 2. When Plaintiff protested, the representative “replied that people in India sleep in the streets so what are you complaining about.” Id.

         While it is unclear to the Court when or if Defendants threatened or initiated foreclosure proceedings, Plaintiff does allege that “the lender” repeatedly called him for “payment and collection” but “would not supply any documentation or validate that amount was proper or legitimate.” Id. ¶ 4.


         A motion to dismiss for failure to state a claim may be granted only when there is no cognizable legal theory to support the claim or when the complaint lacks sufficient factual allegations to state a facially plausible claim for relief. Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of a complaint's factual allegations, the court must accept all material facts alleged in the complaint as true and construe them in the light most favorable to the plaintiff. Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012). However, the court need not accept conclusory allegations as truthful. Holden v. Hagopian, 978 F.2d 1115, 1121 (9th Cir. 1992).

         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 “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) (internal quotation omitted). Additionally, “only a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. The complaint must contain “well-pleaded facts” which “permit the court to infer more than the mere possibility of misconduct.” Id. at 679.


         Defendants move (1) for judicial notice, (2) to strike factual allegations raised in Plaintiff's response to the motion to dismiss that do not appear in the amended complaint, and (3) to dismiss the amended complaint for failing to state a claim.

         I. Judicial Notice

         Defendants move for judicial notice of the following records:

A. A Deed of Trust dated July 19, 2001 and recorded in Multnomah County land records under record number 2001-112853 on July 23, 2001;
B. The Note executed by Plaintiff on or about July 19, 2001;
C. A copy of the June 6, 2012 Corporate Assignment of Deed of Trust recorded in Multnomah County land records on or about August 3, 2012 under record number 2012-094962;
D. A copy of the December 15, 2014 Oregon Assignment of Deed of Trust recorded in Multnomah County land records on or about June 4, 2015 under record number 2015-066295; and
E. A copy of the June 16, 2016 Assignment of Deed of Trust recorded in Multnomah County land records on or about June 29, 2016 under record number 2016-079490.

Mot. Judicial Notice Exs. A-E. Plaintiff does not respond to this motion.

         Federal Rule of Evidence 201 governs judicial notice of adjudicative facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Fed.R.Evid. 201(b). The court must take judicial notice if requested by a party and supplied with the necessary information. Fed.R.Evid. 201(c), (d).

         A court may take judicial notice of public records. Santa Monica Food not Bombs v. City of Santa Monica, 450 F.3d 1022, 1025 n.2 (9th Cir. 2006). In particular, “documents in county land records are properly subject to judicial notice.” Durham v. Bank of New York Mellon, Civ. No. 12-273 PA, 2012 WL 2529188, at *1 (D. Or. June 28, 2012). A court may also take judicial notice of documents referenced in the complaint. Elizabeth Retail Properties LLC v. KeyBank Nat. Ass'n, 83 F.Supp.3d 972, 984 (D. Or. 2015). More specifically, a court may “consider documents in situations where the complaint necessarily relies upon a document or the contents of the document are alleged in a complaint, the document's authenticity is not in question and there are no disputed issues as to the document's relevance.” Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010). A court's decision to take judicial notice of documents that are matters of public record does not convert a motion to dismiss into a motion for summary judgment. See, e.g., Zucco Partners, LLC v. Digimarc Corp., 553 F.3d 981, 989 (9th Cir. 2009) (court may consider judicially noticed documents on Rule 12(b)(6) motion); MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986) (district court, when determining whether complaint fails to state a claim, may take “judicial notice of matters of public record outside the pleadings[.]”).

         Here, exhibits A and B-the Deed of Trust and Note-are explicitly referenced and relied on in the amended complaint. Exhibits A, C, D, and E were recorded in the Multnomah County land records. Plaintiff raises no objections to these exhibits. Thus, the Court takes judicial notice of each requested document.

         II. Motion to Strike

         “As a general rule, ‘a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion.'” Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (quoting Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994)). The Court's decision to grant Defendants' motion for judicial notice does not convert Defendants' motion to dismiss into a motion for summary judgment. See Id. The Court therefore strikes all facts raised in Plaintiff's response to Defendants' motion to dismiss which are not alleged in the underlying complaint.

         III. Failure to State a Claim

         a. Claim 1: Declaratory Judgment

         The Declaratory Judgment Act authorizes a district court to declare the rights and other legal relations of parties in cases of “actual controversy within its jurisdiction.” 28 U.S.C. § 2201(a). “A declaratory judgment offers a means by which rights and obligations may be adjudicated in cases ‘brought by any interested party' involving an actual controversy that has not reached a stage at which either party may seek a coercive remedy and in cases where a party who could sue for coercive relief has not yet done so.” Seattle v. Audubon Soc. v. Moseley, 80 F.3d 1401, 1405 (9th Cir. 1996) (citing 28 U.S.C. § 2201; 10A Wright & Miller, Federal Practice and Procedure, § 2751).

         A “separate declaratory relief claim should not be used . . . to determine identical issues subsumed within other claims.” Jensen v. Quality Loan Serv. Corp., 702 F.Supp.2d 1183, 1189 (E.D. Cal. 2010) (finding that the “resolution of [the plaintiff's] quiet title claim will necessarily determine ‘who owns [the plaintiff's] Subject property'” making the declaratory relief claim “entirely duplicative” of the plaintiff's other claims); see also Camillo v. Wash. Mut. Bank, F.A., No. 1:09-CV-1548 AWI SMS, 2009 WL 3614793, at *13 (E.D. Cal. Oct. 27, 2009) (dismissing declaratory relief claim as redundant where there was no reason to believe it would “resolve any issues aside from those already addressed by the substantive claims” in the case) (internal quotation marks omitted). “[T]he requirements of pleading and practice in actions for declaratory relief are exactly the same as in other civil actions.” Kam-Ko Bio-Pharm Trading Co. Ltd-Australia v. Mayne Pharma (USA) Inc., 560 F.3d 935, 943 (9th Cir. 2009) (citation omitted).

         Here, while the claim titled “Declaratory Judgment - Standing” references various forms of relief, [1] the Court identifies a single request for a declaration of rights: “Plaintiff requests a declaratory judgment as to the lawful holder of the Note and the ...

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