Salako v. Rushmore Loan Management Services LLC

• Court: District Court, D. Arizona
• Decided: June 2, 2025
• Docket: 2:25-cv-01063
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Chidinma Grace Salako, No. CV-25-01063-PHX-JJT

10 Plaintiff, ORDER

11 v.

12 Rushmore Loan Management Services LLC, et al., 13 Defendants. 14 15 Numerous motions are at issue, but primarily at issue is Defendant Rushmore Loan 16 Management Services LLC (“Rushmore”) and Defendant Nationstar Mortgage LLC dba 17 Mr. Cooper’s (“Mr. Cooper”) joint Motion to Dismiss (Doc. 19, MTD). The Court finds 18 this matter appropriate for resolution without oral argument. See LRCiv 7.2(f). For the 19 reasons set forth below, the Court grants in part and denies in part Defendants’ Motion. 20 I. Background 21 Plaintiff Chidinma Salako, proceeding pro se, initiated this lawsuit in Pinal County 22 Superior Court on February 24, 2025. Two days later she filed an amended complaint, 23 which remains the operative pleading in this case. (See Doc. 1-2, FAC.) Defendants 24 removed this case on the basis of diversity jurisdiction. (See Doc. 1.) Plaintiff’s FAC 25 alleges as follows. 26 In 2022, Plaintiff obtained a residential home loan through an entity known as DHI. 27 Shortly thereafter, “Plaintiff’s mortgage was transferred to Defendant Rushmore.” (FAC 28 ¶ 11(a).) Following the transfer of Plaintiff’s loan, Plaintiff made regular payments to 1 Rushmore. Some payments were in excess of what was owing, and other payments were 2 deficient, but Plaintiff avers that she promptly corrected the deficiencies and that, on the 3 whole, she kept current with her loan obligations. (FAC ¶ 11(b)–(c).) In December 2022, 4 “Defendant Rushmore transferred Plaintiff’s mortgage to Defendant Mr. Cooper.” (FAC 5 ¶ 11(d).) Immediately thereafter, Mr. Cooper notified Plaintiff that she had missed a 6 payment prior to Mr. Cooper’s acquisition of the loan, but Plaintiff maintains that she in 7 fact had not missed a payment. (FAC ¶ 11(d).) Plaintiff made regular payments to 8 Mr. Cooper, but other issues continued to arise, some directly related to allegedly deficient 9 payments, and some unrelated to the payments, such as a dispute regarding whether 10 Plaintiff had adequately renewed her home insurance. (See FAC ¶ 11(e)–(g).) “Plaintiff’s 11 last monthly mortgage payment to Defendant MR. COOPER was made on December 31, 12 2024 for the January 2025 mortgage.” (FAC ¶ 11(i).) “Despite making timely and full 13 monthly mortgage payments from June 2022 through December 2024, Plaintiff received 14 numerous emails and letters from Defendant Mr. Cooper, falsely notifying her of alleged 15 missed payments. Additionally, Plaintiff received Mortgage Loan Statements showing 16 amounts due that were double to triple her actual monthly mortgage obligation.” (FAC 17 ¶ 11(j).) Plaintiff claims to have received other correspondence from Mr. Cooper designed 18 to misrepresent both the state of her loan and her conduct in discharging her loan 19 obligations. (FAC ¶ 11(k)–(m).) Plaintiff undertook substantial efforts to ameliorate the 20 situation, all to no avail. For instance, “Plaintiff drove to Defendant MR. COOPER’s office 21 at 2501 S Price Rd, Chandler, AZ. There, Plaintiff was told by security that Defendant 22 Mr. Cooper did not have a physical office at the location and that their name was merely 23 displayed to give the impression of having an office.” (FAC ¶ 11(m).) Mr. Cooper’s actions 24 caused Plaintiff’s credit score to fall from 755 to 600. (FAC ¶ 11(n).) Mr. Cooper’s 25 conduct, such as his recurring threat to initiate foreclosure, has also inflicted severe 26 emotional distress upon Plaintiff. (FAC ¶ 11(o)–(p).) Finally, Plaintiff alleges that 27 Mr. Cooper sent what can only be described as goons to harass Plaintiff at her residence. 28 (FAC ¶ 11(o).) 1 Plaintiff’s FAC states 11 claims for relief: (1) breach of contract, (2) breach of the 2 covenant of good faith and fair dealing, (3) negligence, (4) fraudulent misrepresentation, 3 (5) negligent misrepresentation, (6) fraudulent concealment, (7) declaratory relief, 4 (8) accounting, (9) intentional infliction of emotional distress (IIED), (10) violation of the 5 Arizona Consumer Fraud Act (ACFA), (11) and quiet title. Roughly a month after this case 6 was removed, but before Defendants filed their Motion to Dismiss, Plaintiff filed a 7 document entitled “Relation Back of Amendments Pursuant to Fed. R. Civ. P. 15(c).” 8 (Doc. 18.) Therein, Plaintiff lists twenty causes of action, many of which are already 9 asserted in her FAC but several of which are new. The new claims include, as denominated 10 by the numerals used in Plaintiff’s filing, (8) “attempted break-in by Mr. Cooper agents to 11 illegally acquire Plaintiff’s property,” (10) “severe depression and suicidality,” 12 (12) “charging illegal fees,” (13) “escrow account fraud,” (14) “manipulation of fixed 3.5% 13 interest rate,” (15) “property tax fraud,” (16) “home insurance fraud,” (17) “issuance of 14 fraudulent tax documents,” (18) “initiation of aggressive, illegal foreclosure,” 15 (19) “negligent data breach,” and (20) “false claims of missed payments, late fees, 16 misapplication of mortgage payments.” Plaintiff’s filing contains almost no facts 17 supporting these causes of action; they are simply enumerated without further 18 development. 19 Plaintiff’s “Relation Back” document evinces a fundamental misunderstanding of 20 the function of Rule 15(c). As its subtitle indicates, Rule 15(c) determines “when an 21 amendment relates back.” Thus, Rule 15(c) is a provision that governs the interpretation 22 of amended pleadings. It is not an independent fount of authority for the filing of an 23 amended pleading. Such pleadings must be filed in accordance with Rule 15(a), as 24 augmented by Local Rule of Civil Procedure 15.1. Plaintiff’s “Relation Back” document 25 indicates that Defendants did not object to the filing of a second amended complaint. 26 Therefore, consistent with Local Rule 15.1(b), which governs amendments by consent, 27 Plaintiff was required to file an “amended pleading.” An amended pleading is not an 28 unadorned list of causes of action that Plaintiff seeks to shoehorn into an existing pleading. 1 As Local Rule 15.1(b) makes clear, “[t]he amended pleading must not incorporate by 2 reference any part of the preceding pleading.” In other words, an amended pleading must 3 stand on its own two feet; it may not be a mere add-on to a prior pleading. As Plaintiff’s 4 “Relation Back” document is not a pleading within the meaning of the Federal or Local 5 Rules, the Court will disregard it. Should Plaintiff desire to file an amended pleading 6 following the issuance of this Order, she may seek to do so, whether by motion or by 7 consent. If she desires to proceed via consent, she must procure new consent from 8 Defendants, as their prior-given consent is likely stale. 9 Defendants moved to dismiss Plaintiff’s FAC in its entirety. (See MTD.) Plaintiff 10 filed a Response (Doc. 22, Response), and Plaintiff also filed a contemporaneous motion 11 for Rule 11 sanctions (Doc. 23). Four days later, Plaintiff withdrew her sanctions motion 12 and filed a motion to strike the declaration of Defendants’ counsel that Defendants 13 submitted in support of their Motion to Dismiss. (See Doc. 24; Doc. 25.) Plaintiff’s motion 14 to strike contains an attached supplement that reasserts a Rule 11 violation. (See Doc. 25-1.) 15 The motion to strike and its attachment are wholly without merit, and the Court therefore 16 denies them.1 Plaintiff also filed an addendum to her Response, which addendum included 17 an attached “motion to deny Defendants’ motion.” (See Doc. 26.) This filing is an 18 impermissible sur-reply, and the Court accordingly disregards it. Defendants filed their 19 Reply (Doc. 28, Reply), along with a Request for Judicial Notice (Doc. 29). Plaintiff then 20 filed a motion to supplement her Response (See Doc. 32.) Her proposed supplement is a 21 list of judicial rulings in which various courts have found that Defendants committed a 22 litany of bad acts unrelated to the present matter. (See Doc. 32-1.) Such information is 23 irrelevant, and the Court therefore denies Plaintiff’s motion to supplement. 24 . . . 25 1 In their response to the motion to strike, Defendants ask the Court to award them 26 their fees incurred in responding to Plaintiff’s motion for sanctions and motion to strike. (Doc. 30 at 10.) The Court declines to do so, but the Court warns Plaintiff that she must 27 cease engaging in inflammatory and pointless tactical maneuvers. The Court understands that Plaintiff is impassioned by the subject matter of this case, given that Plaintiff is a pro 28 se litigant who has a direct personal interest in this matter. Nevertheless, Plaintiff must refrain from indulging in unwarranted aggression. 1 II. Legal Standard 2 Rule 12(b)(6) is designed to “test[] the legal sufficiency of a claim.” Navarro v. 3 Block, 250 F.3d 729, 732 (9th Cir. 2001). A dismissal under Rule 12(b)(6) for failure to 4 state a claim can be based on either: (1) the lack of a cognizable legal theory; or (2) the 5 absence of sufficient factual allegations to support a cognizable legal theory. Balistreri v. 6 Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). When analyzing a complaint for 7 failure to state a claim, the well-pled factual allegations are taken as true and construed in 8 the light most favorable to the nonmoving party. Cousins v. Lockyer, 568 F.3d 1063, 1067 9 (9th Cir. 2009). A plaintiff must allege “enough facts to state a claim to relief that is 10 plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has 11 facial plausibility when the plaintiff pleads factual content that allows the court to draw the 12 reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. 13 Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). “The plausibility 14 standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer 15 possibility that a defendant has acted unlawfully.” Id. 16 “While a complaint attacked by a Rule 12(b)(6) motion does not need detailed 17 factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief 18 requires more than labels and conclusions, and a formulaic recitation of the elements of a 19 cause of action will not do.” Twombly, 550 U.S. at 555 (cleaned up and citations omitted). 20 Legal conclusions couched as factual allegations are not entitled to the assumption of truth 21 and therefore are insufficient to defeat a motion to dismiss for failure to state a claim. Iqbal, 22 556 U.S. at 679–80. However, “a well-pleaded complaint may proceed even if it strikes a 23 savvy judge that actual proof of those facts is improbable, and that ‘recovery is very remote 24 and unlikely.’” Twombly, 550 U.S. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 25 (1974)). 26 III. Discussion 27 Defendants argue that Plaintiff’s claim for breach of contract fails because she has 28 failed to allege the elements thereof. (MTD at 3–6.) First, Defendants contend that Plaintiff 1 has failed to establish contractual privity between the parties. This argument is unavailing, 2 as Plaintiff repeatedly alleges that Defendants accepted an assignment of Plaintiff’s loan 3 and that “[i]t is pursuant to this agreement that Defendants have collected monthly 4 payments on the subject loan and are claiming a beneficial interest in the subject property.” 5 (See, e.g., FAC ¶ 17.) As the instant Motion is a motion to dismiss, and not a motion for 6 summary judgment, the Court must accept Plaintiff’s well-pled factual allegations as true. 7 In light of the liberal construction that the Court is duty-bound to give Plaintiff’s FAC, see 8 Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010), the Court finds Plaintiff’s statement 9 that “Plaintiff alleges a written agreement with Defendants” to be sufficient to allege a 10 written agreement with Defendants. Defendants cite caselaw for the proposition that loan 11 servicers are rarely found to be in privity with borrowers, but that something is rarely true 12 is hardly a reason to deem it to be untrue in this particular lawsuit at the pleading stage. 13 The Court concludes that Plaintiff’s well-pled allegation that the subject loan was 14 “transferred” to Defendants is sufficient to allege the existence of a contractual relationship 15 between the parties.2 16 . . . 17 2 In their Reply and associated Request for Judicial Notice, Defendants proffer a 18 variety of records that purportedly demonstrate the absence of a loan assignment. These records include a DataTree Property Detail Report, a Pinal County Recorded Document 19 Search, a Rushmore Notice of Servicing Transfer, and a Nationstar Notice of Servicing Transfer. (See Reply at 1–2.) Defendants also refer in their Reply to certain SEC filings 20 that Plaintiff mentions in her Response. (See Reply at 2.) The Court does not fault Defendants for seeking to introduce these documents into the analysis, as Plaintiff herself 21 evinces an intent that the Court review documents extraneous to the FAC. Nevertheless, the Court is doubtful that consideration of these documents would be proper, as a 22 “document [that] merely creates a defense to the well-pled allegations in the complaint [does] not necessarily form the basis of the complaint” and is therefore not necessarily 23 amenable to incorporation by reference. Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 1002 (9th Cir. 2018). In any event, regardless of whether the Court could expand its 24 analysis to account for the myriad documents submitted by Defendants, the Court declines to do so. “Whether the district court incorporates a document by reference is a matter of 25 discretion.” Napear v. Bonneville Int’l Corp., 669 F. Supp. 3d 948, 957 (E.D. Cal. 2023). Were the Court to accede to Defendants’ request, it would essentially be conducting a 26 summary-judgment analysis on Plaintiff’s well-pled allegation that a contract exists between the parties. The Court finds this to be an inferior method of adjudication. Plaintiff 27 ought to have an opportunity to properly marshal her evidence with the advance knowledge of the burden of proof that she must bear. The Court therefore declines to incorporate by 28 reference or otherwise take judicial notice of the extra-pleading documents submitted by Defendants in support of their argument that no contract exists in this case. 1 Defendants also argue that Plaintiff has failed to allege that Defendants breached 2 their obligations or that any damages resulted therefrom. These arguments are unavailing. 3 Regarding damages, Plaintiff avers that she experienced a hit to her credit score and that 4 “Plaintiff has suffered injury in that Plaintiff has had exorbitant fees, costs and interest 5 added to the subject loan resulting from Defendants’ unlawful conduct.” (See FAC ¶ 33.) 6 Regarding breach, Plaintiff alleges that “Defendants materially breached Paragraph 2 of 7 the DOT by failing to properly apply Plaintiff’s monthly mortgage payments as detailed in 8 Paragraph 11 hereinabove.” (FAC ¶ 18.) Although Defendants point out that Plaintiff’s 9 FAC could be read to allege that she breached her own obligations under the contract, that 10 fact does not void the FAC’s numerous allegations that Defendants, too, materially violated 11 their contractual duties. The FAC’s allegations are sufficient for a pro se litigant to survive 12 the pleading stage of a lawsuit in federal court. 13 Defendants next argue that Plaintiff’s claim for breach of the covenant of good faith 14 and fair dealing fails because Plaintiff was not denied the benefit of her bargain.3 This 15 argument is difficult to comprehend, as the allegations in Plaintiff’s FAC, if credited as 16 true, plainly demonstrate that she was denied the benefit of her bargain. Defendants would 17 have the Court believe that the sole object of Plaintiff’s loan agreement was receipt of the 18 principal and that accurate processing of her repayment thereof was not a component of 19 the bargain. (MTD at 6–7.) Thus, under Defendants’ view, a person who borrows money 20 and then suffers the malicious and illegitimate rejection of her repayments on the debt, as 21 well as all of the legal and practical consequences that flow from such a fabricated 22 non-repayment, has not been denied the benefit of her bargain. The Court rejects this 23 proposition. 24 Defendants next argue that Plaintiff’s claim under ACFA fails because it relates 25 solely to conduct that occurred after Plaintiff entered into the original loan agreement with 26 DHI. (MTD at 8–9.) Defendants are correct. Plaintiff’s ACFA claim does not pertain to

27 3 Defendants also contend that Plaintiff has failed to allege the sort of special relationship that could support the version of this claim that sounds in tort. (MTD at 6–7.) 28 This argument is academic, as Plaintiff brought her good-faith-and-fair-dealing claim as a contractual cause of action. (See FAC ¶ 24.) 1 any act or omission concerning the origination of the loan, but rather concerns only such 2 post-origination activities as attempted foreclosure, improper accounting, inaccurate 3 noticing, illegitimate communications, and the like. (See FAC ¶ 78.) Defendants cite 4 several cases for the proposition that ACFA only supports a claim relating to conduct 5 comprising the sale or attempted sale of a new loan, not the sort of post-origination 6 servicing activities at issue here. See, e.g., Zoldessy v. MUFG Union Bank, N.A., No. CV- 7 20-08329-PCT-SPL, 2021 WL 1733398, at *3 (D. Ariz. May 3, 2021). Defendants’ 8 position appears to be meritorious, and Plaintiff has failed to meaningfully respond to it. 9 The Court therefore dismisses the FAC’s claim arising under ACFA. See Brown v. Sperber- 10 Porter, No. CV-16-02801-PHX-SRB, 2017 WL 10410091, at *4 (D. Ariz. Dec. 20, 2017) 11 (noting that “a court may consider an argument conceded when a party fails to counter it”). 12 Defendants next argue that Arizona’s economic loss rule bars Plaintiff’s tort claims 13 for negligence, fraudulent misrepresentation, negligent misrepresentation, fraudulent 14 concealment, and IIED. (MTD at 9–10.) This argument fails. In their briefing to the Court, 15 Defendants repeatedly insist that no contractual privity exists between the parties. “The 16 principal function of the economic loss doctrine . . . is to encourage private ordering of 17 economic relationships and to uphold the expectations of the parties by limiting a plaintiff 18 to contractual remedies for loss of the benefit of the bargain. These concerns are not 19 implicated when the plaintiff lacks privity and cannot pursue contractual remedies.” 20 Flagstaff Affordable Hous. Ltd. P’ship v. Design All., Inc., 223 Ariz. 320, 327 ¶ 38 (2010). 21 Defendants are attempting to eat their cake and have it too. If, as Defendants contend, 22 Plaintiff is legally barred from obtaining contractual relief against Defendants for their 23 alleged misconduct, then Defendants would face an uphill battle convincing the Court that 24 Plaintiff is also legally barred from recovering in tort. Given that the Court declines to 25 definitively determine at this juncture whether a contract exists, and given that the Court a 26 fotriori declines to determine what the precise terms of the alleged contract consist of, the 27 Court will not rule upon whether the economic loss doctrine bars Plaintiff’s claims. Insofar 28 as Plaintiff’s contract claims are inconsistent with her tort claims, the Court construes the 1 FAC as pleading claims in the alternative. See Arnold & Assocs., Inc. v. Misys Healthcare 2 Sys., 275 F. Supp. 2d 1013, 1029–30 & n.12 (D. Ariz. 2003) (explaining that “parties may 3 plead alternatively or inconsistently”). 4 Defendant next argues that Plaintiff’s negligence and negligent misrepresentation 5 claims fail because Plaintiff has not successfully established that Defendants owed her a 6 duty. (MTD at 10–11.) The FAC states that “Defendants, acting as Plaintiff’s lender and/or 7 loan servicer and/or trustee, had a duty to exercise reasonable care and skill in servicing 8 the subject loan and ensuring that monthly mortgage payments are applied correctly.” 9 (FAC ¶ 28.) Here, as elsewhere, Defendants’ argument elides the fact that this is a case 10 involving a pro se complaint at the pleading stage. Plaintiff’s allegation of a duty of care 11 is sufficient to pass muster at this juncture. Moreover, Defendant’s legal argument is 12 misplaced. Defendants cite Arizona caselaw for the proposition that Defendants only owed 13 Plaintiff a creditor/debtor duty and not a fiduciary duty, but that proposition does not help 14 Defendants, at least not without further elaboration. The case that Defendants rely on, 15 McAlister v. Citibank, 171 Ariz. 207 (Ct. App. 1992), itself distinguishes fiduciary duties 16 from negligence duties, and it implies that the latter can obtain by virtue of ordinary 17 business relationships even in the absence of special circumstances, see id. at 212, 215. It 18 therefore does not follow that Defendants owed Plaintiff no duty of care simply because 19 Defendants did not owe Plaintiff a fiduciary duty. See Standard Chartered PLC v. Price 20 Waterhouse, 190 Ariz. 6, 26 (Ct. App. 1996) (warning that conflating separate legal duties 21 “would debase the concept of fiduciary duty and confuse it with the duty to exercise 22 ordinary care and skill”). 23 Defendants next argue that Plaintiff’s claims for fraudulent misrepresentation and 24 fraudulent concealment fail because Plaintiff did not plead such claims with the specificity 25 required by Rule 9. This argument is unavailing. “Rule 9(b) demands that the 26 circumstances constituting the alleged fraud be specific enough to give defendants notice 27 of the particular misconduct so that they can defend against the charge and not just deny 28 that they have done anything wrong.” Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 (9th 1 Cir. 2009) (cleaned up). “Averments of fraud must be accompanied by the who, what, 2 when, where, and how of the misconduct charged.” Id. (cleaned up). “A party alleging 3 fraud must set forth more than the neutral facts necessary to identify the transaction.” Id. 4 (cleaned up). The FAC meets this standard. After describing in great detail the various 5 misrepresentations regarding Plaintiff’s loan status allegedly made by Defendants, (see 6 FAC ¶ 37), the FAC states: 7 At the time Defendants made the aforementioned misrepresentations, they 8 knew that they were false and were made solely to induce reliance upon them by Plaintiff and the rest of the world (County Recorder, Courts). Namely, 9 Defendants wanted Plaintiff and the rest of the world to believe that Plaintiff 10 was in default on the subject loan and facing imminent foreclosure and that Defendants were proceeding with the requirements of the law in servicing 11 the subject loan and referring it to foreclosure. 12 [] The fraudulent misrepresentations discussed in Paragraphs 11 and 37 (as 13 well as any reference to any fraudulent documents) were made with the intent to deceive Plaintiff, the County Recorder and the Courts, and prevent 14 Plaintiff from taking precautionary measures to protect herself from the 15 foreclosure process, from incurring excessive fees associated with foreclosure, and from saving her interest in the subject property. 16 17 (FAC ¶¶ 38–39.) That Defendants substantively disagree with the validity of the FAC’s 18 allegations does not render those allegations inadequate as a matter of the federal pleading 19 standard. 20 Defendants also argue that Plaintiff cannot establish reliance on the alleged fraud if 21 she knew of the statements’ falsity. This point is well-taken, but Plaintiff alleges that 22 Defendants sought to induce not only her, but also third parties, to rely on the fraudulent 23 statements. Although the parties did not brief this issue, Arizona generally distinguishes 24 between the tort of misrepresentation, regarding which the plaintiff must be the party who 25 relied on the misrepresentation, and the tort of injurious falsehood, regarding which the 26 plaintiff may recover for harm suffered as a result of a third party’s reliance on the false 27 statement. See W. Techs., Inc. v. Sverdrup & Parcel, Inc., 154 Ariz. 1, 3–4 (Ct. App. 1986); 28 Restatement (Second) of Torts § 623A. Insofar as Plaintiff mislabeled her claims regarding 1 the allegedly false conduct of Defendants, the Court does not perceive such an error to be 2 a proper basis of dismissal. 3 Defendants next argue that Plaintiff’s claim for IIED must be dismissed because the 4 allegations contained in the FAC, even if true, do not rise to the level of outrageousness 5 required by Arizona law. (MTD at 12–13.) This argument is unavailing. If the Court credits 6 Plaintiff’s allegations, as it must, then Defendants did not merely find themselves in a 7 business dispute with Plaintiff regarding her home loan, but instead fabricated a business 8 dispute in order to illegally evict Plaintiff from her home. That behavior is sufficiently 9 outrageous to be intolerable in a civilized community. 10 Defendants next argue that Plaintiff’s claim for an accounting fails because an 11 accounting is a remedy that normally sounds in equity and that is ordinarily reserved for 12 cases of such exceeding complexity that a jury could not be reasonably expected to 13 disaggregate the transactions. (MTD at 13–14.) Additionally, Defendants contend that this 14 remedy is generally reserved for situations involving fiduciary relationships. Defendants 15 cite caselaw supporting these propositions. See, e.g., Hannibal-Fisher v. Grand Canyon 16 Univ., 523 F. Supp. 3d 1087, 1099–1100 (D. Ariz. 2021). Defendants’ position is 17 meritorious, and Plaintiff has failed to meaningfully respond to it. The Court therefore 18 dismisses the FAC’s accounting claim. 19 Defendants next argue that Plaintiff’s claims for quiet title and declaratory relief fail 20 because Plaintiff has not satisfied the prerequisite of tendering the outstanding loan 21 amount. (MTD at 14–15.) “Quiet title is not a remedy available to a trustor under an 22 Arizona Trust Deed until the debt is paid or tendered.” Eason v. IndyMac Bank, FSB, No. 23 CV 09-1423-PHX-JAT, 2010 WL 4573270, at *3 (D. Ariz. Nov. 5, 2010). Plaintiff does 24 not allege that she paid or tendered the outstanding loan amount. Rather, in the FAC itself, 25 Plaintiff states that “if necessary, she is willing and able to tender an amount deemed 26 necessary by this Court in order to proceed with her claims against Defendants.” (See FAC 27 ¶¶ 12, 84.) Under Arizona law, such an averment is not a tender. 28 1 [Tender] imports, not merely the readiness and the ability to pay or perform at the time and place mentioned in the contract, but also the actual production 2 of the thing to be paid and delivered over, and an offer of it to the person to 3 whom the tender is to be made; and the act of tender must be such that it needs only acceptance by the one to whom it is made to complete the 4 transaction. 5 Mariposa Dev. Co. v. Stoddard, 147 Ariz. 561, 564 (Ct. App. 1985) (quoting Cagle v. 6 Carlson, 146 Ariz. 292, 295 (Ct. App. 1985)). Plaintiff’s attempted tender is therefore 7 fatally conditional and indefinite. Moreover, as the purpose of Arizona’s tender 8 requirement is “to avoid needless litigation,” see id., a tender made for the first time in a 9 complaint may be deficient for lack of timeliness. The Court will dismiss Plaintiff’s claim 10 for quiet title. However, Defendants are incorrect that Plaintiff’s claim for declaratory relief 11 is merely an appendage of her claim for quiet title. The FAC seeks a declaration regarding, 12 inter alia, “the duties and obligations of the respective parties with regard to the subject 13 loan.” (See FAC ¶ 58.) Thus, the failure of Plaintiff’s claim for quiet title does not doom 14 her request for declaratory relief. See A.R.S. § 12-1831 (“Courts of record within their 15 respective jurisdictions shall have power to declare rights, status, and other legal relations 16 whether or not further relief is or could be claimed.”). 17 Defendants’ final argument is that Plaintiff’s claims for negligence, IIED, and 18 consumer fraud are time-barred by the applicable statutes of limitations. (MTD at 15–16.) 19 As the ACFA claim is independently dismissible for the reasons stated above, the Court 20 does not consider whether it is also time-barred. Defendants cite Arizona statutes and 21 caselaw establishing that claims of negligence and IIED are subject to a limitations period 22 of two years. Defendants contend that Plaintiff’s claims accrued on December 15, 2022, 23 which is the date that Plaintiff received the first communication from Mr. Cooper 24 inaccurately informing her that she was delinquent on her loan. The Court disagrees with 25 Defendants’ argument. Although the first of numerous alleged misrepresentations may 26 have occurred on December 15, 2022, Plaintiff alleges that that instance was merely the 27 opening salvo in a pattern of deceptive behavior that continued into December 2024. In 28 Arizona, claims such as IIED and negligence may be subject to the continuing-violations 1 doctrine, under which “a tort claim based on a series of closely related wrongful acts may 2 be treated as alleging a continuing wrong that accrues for limitations purposes not at the 3 inception of the wrongdoing but upon its termination.” See Watkins v. Arpaio, 239 Ariz. 4 168, 171–73 ¶¶ 8–19 (Ct. App. 2016). Defendants do not address this doctrine. In the 5 absence of a meaningful argument that Defendants’ conduct does not constitute a 6 continuing wrong, the Court cannot dismiss Plaintiff’s claims on timeliness grounds. 7 IV. Conclusion 8 Plaintiff’s claims for an accounting, for quiet title, and for relief under ACFA are 9 dismissed. The remainder of the claims in the FAC stand. As noted above, Plaintiff’s 10 “Relation Back” document is void for procedural impropriety. The Court therefore declines 11 to pass upon any of the new claims asserted therein. 12 On May 30, Plaintiff filed a motion to join DHI as a defendant by way of a second 13 amended complaint. (See Doc. 37.) One day later, she withdrew that motion due to a minor 14 error and filed a corrected version. (See Doc. 41; Doc. 42.) Plaintiff’s new motion contains 15 two separate proposed second amended complaints. The first is a fifty-four-page document 16 that is a “redline” version of her FAC. (See Doc. 42-1.) However, the redlines on this 17 document are merely lines of red text superimposed over the text of the FAC. The red text 18 is at times pasted directly over existing text such that neither is readable. (See FAC at 4.) 19 This is not an acceptable pleading and does not conform with Local Rule 15.1(a)’s 20 requirement that “[a] party who moves for leave to amend a pleading must attach a copy 21 of the proposed amended pleading as an exhibit to the motion, which must indicate in what 22 respect it differs from the pleading which it amends, by bracketing or striking through the 23 text to be deleted and underlining the text to be added.” Compounding the procedural 24 impropriety of Plaintiff’s motion is its second attachment, which is a “clean version” of the 25 proposed second amended complaint that bears no relation to the redline version. The clean 26 version is a mere eight pages, and it is almost entirely devoid of factual allegations. (See 27 Doc. 42-2.) Thus, for more than one reason, the Court will deny Plaintiff’s motion to 28 |} amend. Should Plaintiff desire to later refile a similar motion, she must comply with both || the Federal and Local Rules. 3 Finally, Plaintiff has filed a Request for Enforcement of Order Granting Electronic 4|| Filing, wherein she asks the Court to order Defendants to stop mailing her paper copies of 5|| documents and to instead serve documents exclusively through the Court’s CM/ECF 6|| system. (See Doc. 40.) Plaintiff does not state what documents Defendants have mailed 7|| her. More importantly, Plaintiff does not aver that she contacted Defendants or their 8 || counsel prior to filing this request. The Court declines to grant the request and instead 9|| directs the parties to cooperate in good faith. If, and only if, such cooperation fails, a party || may move this Court for relief. 11 IT IS THEREFORE ORDERED granting in part and denying in part Defendants’ 12 || Motion to Dismiss (Doc. 19). The claims in the FAC (Doc. 1-2) for an accounting, for quiet 13 || title, and for relief under the Arizona Consumer Fraud Act are dismissed. The eight remaining claims in the FAC are preserved. 15 IT IS FURTHER ORDERED denying Plaintiffs Motion to Strike (Doc. 25); denying Plaintiffs Motion to Supplement (Doc. 32); denying Plaintiffs first Motion to 17|| Join (Doc. 37); denying Plaintiff's Request for Enforcement (Doc. 40); and denying || Plaintiff's second Motion to Join (Doc. 42). 19 Dated this 2nd day of June, 2025. ON

Unifgd StatesDistrict Judge 22 23 24 25 26 27 28

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