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Spreitzer v. Woodall

United States District Court, D. Wyoming

March 3, 2014

JAMES A. SPREITZER, Plaintiff,
v.
JAMES H. WOODALL; HEATHER M. MCGINLEY; JAMES H. WOODALL, PLLC; DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for AMERIQUEST MORTGAGE SECURITIES, INC.; HOMEWARD RESIDENTIAL, INC.; DAVID APPLEGATE; AMERIQUEST MORTGAGE COMPANY; and DEFAULT RESOLUTION NETWORK, LLC, Defendants.

OPINION AND ORDER GRANTING DEFENDANTS' MOTION TO DISMISS AND DENYING PLAINTIFF'S MOTION FOR LEAVE TO AMEND HIS COMPLAINT

ALAN B. JOHNSON, District Judge.

In response to receiving foreclosure notices, Plaintiff filed RICO and FDCPA claims against multiple defendants and filed for declaratory relief seeking to quiet his title. The original mortgage company, the mortgage assignee, the mortgage servicer, the attorney assisting the mortgage assignee with foreclosure, and other defendants filed motions to dismiss the plaintiff's claims against them. For the following reasons, the Court GRANTS their motions and DENIES Plaintiff's motion for leave to amend his complaint.

BACKGROUND

On September 19, 2003, Plaintiff James A. Spreitzer ("Plaintiff') executed a Fixed Rate Note ("Note") promising to repay a loan that he received from Defendant Ameriquest Mortgage Company ("Ameriquest"). [ECF No. 65 at ¶ 27; ECF No. 1-1 at 4-6]. After the Plaintiff executed the Note, Defendant Ameriquest indorsed the Note "without recourse." [ECF No. 65 at ¶ 28; ECF No. 1-1 at 6]. This indorsement, as will be analyzed further below, is at the heart of Plaintiff's claims.

The Plaintiff also executed a Mortgage ("Mortgage") which granted Defendant Ameriquest and its "successors and assigns" a power of sale over Plaintiff's residence at 108 Sequoia Drive, Gillette, Wyoming 82718. [ECF No. 65 at ¶ 27; ECF No. 1-1 at 8-22]. The Mortgage was duly recorded on September 29, 2003, and it specifically provides that the Note and Mortgage may be sold. [ECF No. 1-1 at 22, 18]. Nearly six years later, Defendant Ameriquest assigned ("Assignment") "the described mortgage" and the corresponding Note to Defendant Deutsche Bank National Trust Company ("Deutsche Bank"), which was acting as trustee for Ameriquest Mortgage Securities, Inc. Asset-backed Pass-through Certificates, Series 2003-11, under the Pooling and Servicing Agreement dated November 1, 2003, whose address is 1761 East St. Andrew Place, Santa Ana, CA 92705-4934 ("Ameriquest Certificates"). [ Id. at 28; ECF No. 70 at 2; ECF No. 81 at 7].

On March 12, 2012, Plaintiff received the first of many notices of intent to foreclose. [ECF No. 65 at ¶ 42; ECF No. 1-1 at 24]. Defendant James H. Woodall ("Woodall") sent the notices on behalf of Defendant Deutsche Bank because Plaintiff had defaulted under the Note and Mortgage. [ECF No. 65 at ¶¶ 42-44; ECF No. 1-1 at 24; ECF No. 70 at 3; ECF No. 79 at 2-3; ECF No. 81 at 8]. Subsequent to these notices, Defendant Homeward Residential, Inc. ("Homeward") sent Plaintiff a letter regarding the loan represented by the Note and the foreclosure. [ECF No. 65 at ¶ 75; ECF No. 70 at 3]. Defendant Homeward is the self-described servicer of the loan evidenced by the Note. [ECF No. 70 at 3].

On August 20, 2012, the Plaintiff received a letter from Defendant Default Resolution Network, LLC ("Default Resolution"). [ECF No. 65 at ¶ 87]. The letter stated that Defendant Homeward had "referred [Plaintiff's] loan to us for foreclosure." [ECF No. 1-2 at 44]. Aside from including the letter and identifying Defendant Default Resolution, the Plaintiff has not alleged any other facts regarding that defendant. [ Id. ; ECF No. 65 at 22].

On September 11, 2012, Plaintiff filed his initial complaint in this case alleging that Defendants James H. Woodall, James H. Woodall, PLLC ("Woodall PLLC"), Heather M. McGinley ("McGinley"), Ameriquest, Deutsche Bank, Homeward, and Default Resolution had violated multiple counts of the Fair Debt Collection Practices Act and the Racketeer Influenced and Corrupt Organizations Act. [ECF No. 1]. Various defendants filed motions to dismiss the original complaint, and Plaintiff filed the instant Verified Amended Complaint ("Amended Complaint"), ECF No. 65, in response.

Shortly thereafter, Defendant Default Resolution filed its Motion to Dismiss the Plaintiff's Verified Amended Complaint. [ECF No. 68]. Ten days later, Deutsche Bank and Homeward filed their Motion to Dismiss the Amended Complaint and an accompanying Memorandum in Support. [ECF Nos. 69, 70]. Shortly thereafter, Defendants Woodall, Woodall PLLC, and McGinley filed their Motion to Dismiss the Amended Complaint and its supporting memorandum. [ECF Nos. 78, 79]. A day later, Defendant Ameriquest filed its Motion to Dismiss the Verified Amended Complaint and its supporting memorandum. [ECF Nos. 80, 81]. Instead of filing a response to these motions to dismiss, Plaintiff filed motions to strike or deny each respective motion. [ECF Nos. 85, 90, 96, 98]. Since motions to strike are disfavored, the Court will examine his motions to strike or deny as though they were responses. Most defendants replied to the motion seeking to strike or deny their motion to dismiss. [ECF Nos. 104, 108, 113, 114]. The Plaintiff responded to those replies (without seeking leave to do so), and he also filed several Judicial Notices to the Court. [ECF Nos. 66, 109, 111, 115, 127, 129].

On May 10, 2013, Paul Knight entered an appearance for Plaintiff, who had proceeded pro se until then. [ECF No. 133]. Seven months later, the Court entered orders dismissing several motions as moot and dismissing all claims as to Defendants Campbell County Abstract Company and Barbara S. Redder. [ECF Nos. 134, 135]. Over a month after that, Plaintiff filed a Motion for Leave to File a Second Amended Complaint. [ECF No. 136]. The Defendants filed Responses in opposition. [ECF Nos. 137, 138, 140, 146]. Plaintiff, thereafter, filed his replies. [ECF Nos. 149, 150, 151, 152]. The Court finds that these matters have been thoroughly briefed and are ripe for disposition.

STANDARD OF REVIEW

In Ashcroft v. Iqbal, the Supreme Court articulated a two-step approach for district courts to use when considering a motion to dismiss under Fed.R.Civ.P. 12(b)(6). See 556 U.S. 662, 679 (2009). First, "a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id . Iqbal clarified that "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions, " and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 678.

Second, "[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. at 679. The Court has stated that "[t]o 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." Id. at 678. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Plausibility lies somewhere between possibility and probability; a complaint must establish more than a mere possibility that the defendant acted unlawfully but the complaint does not need to establish that the defendant probably acted unlawfully. See id. "Determining whether a complaint states a plausible claim for relief will... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679.

DISCUSSION

I. Fair Debt Collection Practices Act Claims

The Plaintiff has alleged that all Defendants have violated five sections of the FDCPA: 15 U.S.C. §§ 1692f(6), 1692e(2)(A), 1692e(4), (5), and (10). The Court finds that the Plaintiff's claims arise under federal ...


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