1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Douglas Sanders, ) ) 9 Plaintiff, ) ) No. CV 19-470-TUC-CKJ 10 vs. ) ) 11 Joseph Tirello, ZBS Law, LLP, Selene ) ORDER Finance, U.S. National Bank ) 12 Association, as Trustee of SW REMIC ) Trust 2015-1, ) 13 ) Defendants. ) 14 ) 15 Pending before the Court is the Motion to Dismiss Plaintiff’s Complaint (Doc. 5) 16 filed by U.S. Bank National Association, as Trustee of SW REMIC Trust 2015-1 (“US 17 Bank”).1 Plaintiff Douglas Sanders (“Sanders”) has filed a Response (Docs. 10, 15), U.S. 18 Bank has filed a Reply (Doc. 11, 16), and Sanders has filed a sur-reply (Doc. 18). Also 19 pending before the Court are the Motion for Extension of Time to File an Answer (Doc. 20 6) filed by Selene Finance (“Selene Finance”), Joseph Tirello (“Tirello”), and ZBS Law, 21 LLP (“ZBS Law”), the Motion to File Last Page of Lawsuit (Doc. 17) filed by Sanders, 22 and the Motion for Discovery (Doc. 32) filed by Sanders. 23 Additionally, Finance, Tirello, and ZBS Law have filed a Joinder to the Motion to 24 Dismiss and its Reply (Doc 12). Similarly, Rushmore Loan Management Services, LLC 25 ("Rushmore") has filed a Motion to Quash Service and Joinder to Motion to Dismiss 26 27 1The Court will direct the Clerk of Court to change the caption to reflect the true name of U.S. National Bank as Trustee of SW REMIC 2015-1 as U.S. Bank National Association, as 28 1 (Doc. 22). Responses (Doc. 13, 23) and replies (Doc. 14, 25) have been filed. 2 3 I. Procedural History 4 Sanders filed a complaint on September 26, 2019, against Tirello, ZBS Law, 5 Selene Finance, and U.S. Bank. The complaint alleges Sanders owns the property at 6 10613 S. Blackhawk Ridge Place, Vail, Arizona 85641 (“the Property” or “the Home”), 7 and that others purport to have ownership of Sanders’ mortgage note (“the Note”) and/or 8 the Deed of Trust (“the Deed”). The complaint further alleges ZBS Law is the 9 corporation responsible for the damages inflicted as described in the complaint, Tirello 10 is a participant in the imperfect securitization of the Note, Selene Finance is operating as 11 a servicer, and US Bank is the master servicer for a securitzed trust and/or is a participant 12 in the imperfect securization of the Note. 13 The complaint summarizes: 14 [Sanders], homeowner, disputes the title and ownership of the real property in question (the “Home”), which is the subject of this action, in that the originating 15 mortgage lender, and others alleged to have ownership of [Sanders’] mortgage note and/or Deed of Trust, have unlawfully sold, assigned and/or transferred their 16 ownership and security interest in a Promissory Note and Deed of Trust related to the Property, and, thus, do not have lawful ownership or a security interest in 17 [Sanders’] Home . . . 18 Complaint, p. 3 (Doc. 1). Sanders alleges: 19 43. In order for the Trustee of the Securitized Trust to have a valid and enforceable secured claim against [Sanders’s] Home, the Trustee must prove and 20 certify to all parties that, among other things required under the [Pooling and Servicing Agreement (“PSA”)]: 21 a. There was a complete and unbroken chain of endorsements and transfers 22 of the Note from and to each party to the securitization transaction (which should be from the (A) Mortgage Originator to the (B) Sponsor to the (C) 23 Depositor to the (D) Trust/Trustee, and that all of these endorsements and transfers were completed prior to the Turst closing dates . . . ; and 24 b. The Trustee of the Securitized Trust had the actual physical possession 25 of the Note at that point in time, when all endorsements and assignments had been completed. Absent such proof, [Sanders] alleges that the Trust 26 cannot demonstrate that it had perfected its security interest in Plaintiff’s Home that is the subject of this action. Therefore, if the Defendants, and 27 each of them, did not hold and possess the Note on or before the closing date of the Trust herein, they are estopped and precluded from asserting any 28 secured or unsecured claim in this case. 1 Id. at 8-9. Sanders asserts none of the parties to the securitization transaction and none 2 of the Defendants in this case hold a perfected and secured claim in the Property. 3 The complaint seeks to state the following claims for relief:2 4 Count I: Lack of Standing to Foreclose 5 Count II: Fraud in the Concealment 6 Count III: Fraud in the Inducement 7 Count IV: Intentional infliction of Emotional Distress 8 Count V: Slander of Title 9 Count VI: Quiet Title 10 Count VII: Declaratory Relief 11 Count VIII: Violations of TILA 12 Count IX: Violations of RESPA 13 Count X: Rescission 14 On October 17, 2019, US Bank, not in its Individual capacity but solely as Trustee 15 of SW REMIC Trust 2015-1, filed a Motion to Dismiss Plaintiff’s Complaint (Doc. 5). 16 Additionally, attached to the Motion to Dismiss is a Request for Judicial Notice (Doc. 5- 17 1). Sanders has filed a response (Docs. 10, 15) and US Bank has filed a reply (Docs. 11, 18 16). Sanders has filed a sur-reply (Doc. 18).3 19 Selene Finance, ZBS Law, and Tirello filed a Notice of Joinder in the motion and 20 reply (Doc. 12). Sanders objects to this joinder (Doc. 13); Selene Finance, ZBS Law, and 21 Tirello have responded to the objection (Doc. 14). 22 On December 23, 2019, Sanders filed a Motion for Admission of Last Page of 23 24 2The caption of the Complaint includes a list of claims. This list does not repeat the 25 claims as stated in the body of the Complaint. The Court has numbered the claims as set forth in the body of the Complaint. 26 27 3Although the local rules do not provide for the filing of a sur-reply, LRCiv 7.2, and Sanders has not requested leave to file a sur-reply, the Court has considered and, where 28 appropriate, discussed the issues raised in the document. 1 Lawsuit (Doc. 17). 2 On January 22, 2020, Sanders filed a Notice of Joinder.4 This document states: 3 [Sanders] before this court by special appearance, and hereby notice to joinder, motion to joinder and add the above parties to this case before the court on record: 4 . . . Rushmore Loan Management Services, LLC[.] 5 Notice of Joinder, p. 2 (Doc. 19). The Notice of Joinder includes Rushmore Loan 6 Management Services, LLC (“Rushmore”) in the caption. A February 21, 2020, Proof 7 of Service (Doc. 20) states the original complaint (Doc. 1) and Sanders’ Notice of Joinder 8 (Doc. 19) were served on US Bank and Rushmore. 9 On March 19, 2020, Rushmore filed a Motion to Quash Service and Joinder to 10 Motion to Dismiss (Doc. 22). 11 On June 10, 2020, Sanders filed a Motion for Discovery (Doc. 32). 12 13 II. Motion for Extension of Time to File an Answer (Doc. 6) 14 As Finance, Tirello, and ZBS Law have joined in the Motion to Dismiss (Doc. 12) 15 the Court will deny this motion as moot. See Fed.R.Civ.P. 12(a)(4). 16 17 III. Motion to File Last Page of Lawsuit (Doc. 17) 18 Sanders seeks to add the last page of his complaint and a copy of a June 21, 2016, 19 Notice of Trustee’s Sale to his complaint. The Court will grant the request. 20 21 IV. Complaint and Plausibility Pleading Standard 22 A complaint is to contain a "short and plain statement of the claim showing that 23 the pleader is entitled to relief[.]" Fed.R.Civ.P. 8(a). A complaint must set forth a set of 24 facts that serves to put defendants on notice as to the nature and basis of the claim(s). 25 26 4The Clerk of Court has docketed this document as a Request for Jury Trial Reserve the 27 Right to Amend. See LRCiv 7.1(a)(3) (“In the space to the right of the center there must be inserted . . . a brief description of the nature of the document[.]”); LRCiv 7.1(a)(3) n. 3, App. C. 28 However, the Court will refer to this document as a Notice of Joinder. 1 The United States Supreme Court has found that a plaintiff must allege “enough facts to 2 state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 3 U.S. 544, 570 (2007). While a complaint need not plead “detailed factual allegations,” 4 the factual allegations it does include “must be enough to raise a right to relief above the 5 speculative level.” Id. at 555; see also Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) 6 ("If there are two alternative explanations, one advanced by defendant and the other 7 advanced by plaintiff, both of which are plausible, plaintiff's complaint survives a motion 8 to dismiss[.]"). Further, Fed.R.Civ.P. 8(a)(2) requires a showing that a plaintiff is entitled 9 to relief “rather than a blanket assertion” of entitlement to relief. Twombley, 127 S.Ct. 10 at 1965 n. 3. The complaint “must contain something more . . . than . . . a statement of 11 facts that merely creates a suspicion [of] a legally cognizable right to action.” Id. at 1965. 12 In considering a motion to dismiss, the Court considers a complaint in light of 13 Twombly and must determine if a plaintiff has “nudge[d] [the] claims across the line from 14 conceivable to plausible.” Id. at 570. The Court also considers that the Supreme Court 15 has cited Twombly for the traditional proposition that “[s]pecific facts are not necessary 16 [for a pleading that satisfies Rule 8(a)(2)]; the statement need only ‘give the defendant 17 fair notice of what the . . . claim is and the grounds upon which it rests.” Erickson v. 18 Pardue, 551 U.S. 89, 93 (2007). Indeed, Twombly requires “a flexible ‘plausibility 19 standard,’ which obliges a pleader to amplify a claim with some factual allegations in 20 those contexts where such amplification is needed to render the claim plausible.” Iqbal 21 v. Hasty, 490 F.3d 143, 157-58 (2nd Cir. 2007); see also Moss v. U.S. Secret Service, 572 22 F.3d 962 (9th Cir. 2009) (for a complaint to survive a motion to dismiss, the 23 non-conclusory “factual content,” and reasonable inferences from that content, must be 24 plausibly suggestive of a claim entitling the plaintiff to relief). 25 When a court is considering a motion to dismiss, allegations that are mere 26 conclusions are not entitled to the assumption of truth if unsupported by factual 27 allegations that allow the court "to draw the reasonable inference that the defendant is 28 liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 663-64 (2009). This 1 Court must take as true all allegations of material fact and construe them in the light most 2 favorable to a plaintiff. See Cervantes v. United States, 330 F.3d 1186, 1187 (9th Cir. 3 2003). In general, a complaint is construed favorably to the pleader. See Scheuer v. 4 Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overruled on other 5 grounds, 457 U.S. 800. Nonetheless, the Court does not accept as true unreasonable 6 inferences or conclusory legal allegations cast in the form of factual allegations. Western 7 Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). Furthermore, the Court is not 8 to serve as an advocate of a pro se litigant, Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 9 1987), in attempting to decipher a complaint. 10 If a court determines that dismissal is appropriate, a plaintiff must be given at least 11 one chance to amend a complaint when a more carefully drafted complaint might state a 12 claim. Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991). Moreover, when dismissing 13 with leave to amend, a court is to provide reasons for the dismissal so a plaintiff can make 14 an intelligent decision whether to file an amended complaint. See Bonanno v. Thomas, 15 309 F.2d 320 (9th Cir. 1962); Eldridge v. Block, 832 F.2d 1132 (9th Cir. 1987). 16 17 V. Request for Judicial Notice (Doc. 5-1) 18 A court must normally convert a Rule 12(b)(6) motion into a Rule 56 motion for 19 summary judgment if it “considers evidence outside the pleadings . . . A court may, 20 however, consider certain materials—documents attached to the complaint, documents 21 incorporated by reference in the complaint, or matters of judicial notice—without 22 converting the motion to dismiss into a motion for summary judgment.” United States 23 v. Ritchie, 342 F.3d 903, 907–08 (9th Cir.2003); see also Tellabs, Inc. v. Makor Issues 24 & Rights, Ltd., 551 U.S. 308, 322 (2007) (a court may consider “other sources courts 25 ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, 26 documents incorporated into the complaint by reference, and matters of which a court 27 may take judicial notice”); Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir.1994) (noting 28 that a court may consider a document whose contents are alleged in a complaint, so long 1 as no party disputes its authenticity), overruled on other grounds. 2 Indeed, a court may take judicial notice of material that is submitted as part of the 3 complaint or is necessarily relied upon by the complaint, as well as matters of public 4 record. Lee v. City of L.A., 250 F.3d 668, 688–89 (9th Cir.2001). Under Federal Rule of 5 Evidence 201(b), a “judicially noticed fact must be one not subject to reasonable dispute 6 in that it is either: (1) generally known within the territorial jurisdiction of the trial court; 7 or (2) capable of accurate and ready determination by resort to sources whose accuracy 8 cannot reasonably be questioned.” A court may “take judicial notice of undisputed 9 matters of public record, including documents on file in federal or state courts.” Harris 10 v. Cnty. of Orange, 682 F.3d 1126, 1132 (9th Cir.2012), internal citation omitted. 11 US Bank requests the Court take judicial notice of true and correct copies of 12 documents recorded in the property records of Pima County, Arizona. A number of 13 Sanders’s claims necessarily rely upon information contained within the property records 14 and the Court may therefore consider these documents on this basis. See Lee, 250 F.3d 15 at 688–89. Moreover, all of these documents are judicially noticeable matters of public 16 record. Additionally, it is well established that a court may take judicial notice of a 17 document not to credit the truth of the allegations or facts set forth therein, but rather only 18 for the purposes of “noticing the existence” of the documents. See McMunigal v. Bloch, 19 No. C 10–02765 SI, 2010 WL 5399219, at *2 (N.D.Cal. Dec. 23, 2010). The Court will 20 grant the request for judicial notice. 21 22 V. Securitization 23 Courts have recognized that the securitization of a mortgage loan does not 24 undermine a lender's right to foreclose on the mortgaged property. See, e.g., Robertson 25 v. Citibank, N.A., No. 12–cv–02996–JSW, 2013 WL 752491, at *3 (N.D.Cal. Feb. 27, 26 2013) (“The argument that parties lose their interest in a loan when it is securitized or 27 assigned to a trust pool has been rejected by numerous courts.”), citing cases; McGough 28 v. Wells Fargo Bank, N.A., No. 12–cv–00050–TEH, 2012 WL 2277931, at *4 (N.D. Cal. 1 June 18, 2012) (“[P]roper securitization does not give rise to a cause of action in 2 California.”); Wadhwa v. Aurora Loan Servs., LLC, No. 11–cv–01784–KJM, 2011 WL 3 2681483, at *4 (E.D.Cal. July 8, 2011) (rejecting plaintiffs' position that “the assignment 4 of the note to a [REMIC] renders any interest in the property other than plaintiffs' 5 somehow invalid”); Hafiz v. Greenpoint Mortgage Funding, Inc., 652 F.Supp.2d 1039, 6 1043 (N.D.Cal.2009) (rejecting as “both unsupported and incorrect” plaintiff's argument 7 that “defendants lost their power of sale pursuant to the deed of trust when the original 8 promissory note was assigned to a trust pool”). However, “a borrower may assert a claim 9 based on the allegedly improper securitization of a mortgage loan.” Sottile v. JP Morgan 10 Chase Bank N.A., No. 13-CV-05909-WHO, 2014 WL 7139996, at *3, n. 3 (N.D. Cal. 11 Dec. 12, 2014), citations omitted. 12 While “[m]any people in this country are dissatisfied and upset by [the 13 securitization] process,” Duarte v. Bank of Am., No. CIV. 10-00372 JMS BM, 2011 WL 14 1399127, at *7 (D. Haw. Apr. 12, 2011), citation omitted, courts routinely “reject[] 15 claims because they are based on an ‘erroneous legal theory that the securitization of a 16 mortgage loan renders a note and corresponding security interest unenforceable and 17 unsecured.’” Id. 18 Sanders cites to Martin v. Mahoney in support of claims. Sur-Reply, p. 2 (Doc. 19 18). However, Sanders has not provided a citation for this case and has not set forth any 20 basis why this apparent Scott County, Minnesota, decision would provide any controlling 21 or persuasive authority to this Court. See e.g., Corless v. Comm'r of Soc. Sec. Admin., 22 260 F. Supp. 3d 1172, 1174 (D. Ariz. 2017) (“district court is bound to apply the legal 23 standards imposed by the law of this Circuit”). 24 25 VI. Non-Judicial Foreclosure Proceedings 26 In his response to the Motion to Dismiss, Sanders asserts he is challenging 27 Arizona’s non-judicial foreclosure process as unconstitutional. As summarized by 28 another judge in this district: 1 Plaintiff appears to argue that the power-of-sale clause authorizing a non-judicial foreclosure in the deed-of-trust is cognovit because non-judicial foreclosure does 2 not allow for a hearing in a court of law. A non-judicial foreclosure, is, by definition, not a judicial proceeding, and a power-of-sale clauses does not allow 3 a creditor to seek judgment against a debtor, but merely allow the creditor to obtain title to the collateral as a result of default. Accordingly, no judicial 4 proceeding was contemplated or took place at which Plaintiff was denied notice or not permitted to appear. There was, then, no state action which might support 5 a constitutional claim. Additionally, the facts asserted do not demonstrate in any way whatsoever that the deed-of-trust was a cognovit note. 6 Earl v. Wachovia Mortg. FSB, No. CV09-2198PHXMHM, 2010 WL 2336191, at *3 (D. 7 Ariz. June 10, 2010; see also Nieves v. World Sav. Bank, FSB, 357 F. App'x 843, 844 (9th 8 Cir. 2009) (dismissal was appropriate because plaintiff “failed to allege facts 9 demonstrating that the defendants' conduct constituted government action sufficient to 10 support a claim under section 1983 or Bivens”). 11 12 VII. Wrongful Foreclosure 13 Sanders refers to this matter as a “Wrongful Foreclosure Lawsuit.” Response, p. 14 1 (Doc. 10). Arizona does not currently recognize a wrongful foreclosure cause of action. 15 Zubia v. Shapiro, 408 P.3d 1248, 1253 (Ariz. 2018). Even if Arizona did recognize such 16 a cause of action, Sanders has failed to allege he has “tendered the amount of the secured 17 indebtedness or was excused from tendering[,]” as would be required under such a claim. 18 Id. 19 Moreover, to the extent Sanders argues in his sur-reply that there was a lack of 20 consideration for the contract between the parties, the Court disagrees. This argument 21 appears to rely on a “vapor money” theory. “Proponents of the vapor money theory, 22 including [Sanders], argue that mortgages are not enforceable because banks do not 23 actually loan money.” Vollmer v. Present, No. CV 10-1182-PHX-MHM, 2011 WL 24 11415, at *6 (D. Ariz. Jan. 4, 2011). Courts in this circuit have consistently rejected this 25 theory. See, e.g., Curten v. New Penn Fin., LLC, No. 218CV0965TLNKJNPS, 2018 WL 26 4090602, at *4 (E.D. Cal. Aug. 27, 2018), report and recommendation adopted, No. 27 218CV00965TLNKJN, 2018 WL 5094990 (E.D. Cal. Sept. 21, 2018); Kuder v. 28 1 Washington Mutual Bank, 2009 WL 2868730, *3 and n. 5 (E.D.Cal. Sept.2, 2009) 2 (“[Plaintiff's claims are premised on the so-called ‘vapor money’ theory which has been 3 consistently rejected by federal courts as frivolous.”); Rodriguez v. Summit Lending 4 Solutions, Inc. et al., 2009 WL 1936795 at *2 (S.D.Cal. July 7, 2009) (“One of Plaintiffs' 5 central claims is that the underlying loan is unenforceable because the bank did not issue 6 ‘legal tender’ to the borrower. As discussed by [Defendant] in its motion to dismiss, this 7 ‘vapor money’ theory has been uniformly rejected as frivolous by the courts.”) 8 9 VIII. Count I: Lack of Standing 10 Sanders alleges Defendants do not have the right to foreclose on the Property 11 because each have failed to perfect a security interest in the Property and did not comply 12 with the terms of their own securitization requirements. US Bank asserts the non-judicial 13 foreclosure statutes of Arizona do not require it to prove its authority before commencing 14 a non-judicial foreclosure. Hogan v. Washington Mut. Bank, N.A., 277 P.3d 781, 782 15 (Ariz. 2012), as amended (July 11, 2012). Defendants assert has failed to state a clam 16 upon which relief may be granted and seeks dismissal of all claims. 17 As summarized by another judge in this district: 18 Arizona does not burden a lender or beneficiary to produce the original note (or any other documents) before proceeding with a non-judicial foreclosure. See 19 [Standish v. Encore Credit Corp., No. CV-13-01819-PHX-DGC, 2014 WL 232021, at *3 (D. Ariz. Jan. 22, 2014)] (citing Hogan, 277 P.3d at 782 (holding 20 that compliance with Arizona’s statutes authorizing non-judicial foreclosure requires a trustee only to record an instrument demonstrating it was the successor 21 in interest to the original trustee); Hensley v. Bank of N.Y. Mellon, No. CV-12-01248-PHX-JAT, 2013 WL 791294, at *5 (D. Ariz. Mar. 4, 2013) (holding 22 a beneficiary under a deed of trust is not obligated to “show ownership or otherwise document its right to enforce” the note before a non-judicial 23 foreclosure). Courts routinely hold that such “show me the note” arguments lack merit. See Diessner v. Mortgage Elec. Registration Sys., 618 F. Supp. 2d 1184, 24 1187 n.15 (D. Ariz. 2009) (listing cases). 25 Barrington Investments of Arizona LLC v. US Bank Nat'l Ass'n, No. CV-19-05084- 26 PHX-SMB, 2020 WL 2559921, at *5 (D. Ariz. May 20, 2020). In other words, simply 27 because a party challenges the ownership of a promissory note does not mean “the 28 foreclosing party must prove it and either produce the note or provide other evidence 1 establishing its right to foreclose.” Id. In fact, the Supreme Court of Arizona has stated: 2 [I]t is sufficient that a sale is “noticed by a trustee who had recorded an instrument demonstrating that it was a successor in interest to the original trustee.” [Hogan, 3 277 P.3d at 783]. “[T]he deed of trust statutes impose no obligation on the beneficiary to ‘show the note’ before the trustee conducts a non-judicial 4 foreclosure.” Id. See also Zadrozny v. Bank of New York Mellon, 720 F.3d 1163, 1168 (9th Cir. 2013) (“Arizona law does not require possession of the note to 5 effectuate a non-judicial foreclosure.”). 6 Medrano v. Carrington Foreclosure Servs. LLC, No. CV-19-04988-PHX-DWL, 2019 WL 7 6219337, at *7 (D. Ariz. Nov. 21, 2019). Contrary to Sanders’s assertion, Defendants 8 complied with Arizona’s requirements for non-judicial proceedings by executing and 9 recording a notice of sale which had been executed by the substitute trustee. See, A.R.S. 10 § 33-808; Motion to Dismiss, Ex. 7, Notice of Sale (Doc. 5-8). 11 Sanders also asserts US Bank does not have the authority to foreclose because its 12 charter limits the powers and duties of Mortgage Electronic Registration Systems, Inc. 13 (“MERS”) to function as an electronic registration system. Sanders alleges that, “to 14 perfect the transfer of mortgage papers as collateral for a debt, the owner should 15 physically deliver the note to the transferee.” Complaint, p. 13 (Doc. 1). Sanders relies 16 on California cases in support of his assertion. See Kelly v. Upshaw, 39 Cal. 2d 179, 192 17 (1952); Polhemus v. Trainer, 30 Cal. 685, 688 (1866); Johnson v. Razey, 181 Cal. 342, 18 344, 184 P. 657 (1919). However, these cases concern assignment, not securitization, of 19 debt. Indeed: 20 To the extent that Plaintiff is arguing that [the bank] does not have the authority to foreclose because the Note and DOT were split upon the purported 21 securitization, such argument is foreclosed by the well-established principle “that a deed of trust is a mere incident of the debt it secures and that an assignment of 22 debt carries with it the security.” [Domarad v. Fisher & Burke, Inc., 270 Cal. App. 2d 543, 553 (1969)] (internal quotations omitted). “[A] deed of trust has no 23 assignable quality independent of the debt, it may not be assigned or transferred apart from the debt, and an attempt to assign the deed of trust without a transfer of 24 the debt is without effect.” Id. 25 Foulkrod v. Wells Fargo Fin. California, Inc., No. CV 11-732-GHK (AJWX), 2012 WL 26 13008150, at *3 (C.D. Cal. Nov. 28, 2012). Indeed, the “splitting” of the Note and the 27 Deed does not make nonjudicial foreclosure provisions in a deed of trust unenforceable. 28 See, e.g., In re Mortg. Electronic Registration Sys., Inc., 754 F.3d 772, 784 (9th Cir. 1 2014) (deed of trust does not necessarily need to be attached to an underlying note for a 2 trustee to foreclose on the security interest that secures the notes’ debt); see also Buchna 3 v. Bank of Am., NA, 478 F. App’x 425, 425-26 (9th Cir. 2012) (argument that nonjudicial 4 foreclosure provisions in a deed of trust were unenforceable because the note and deed 5 of trust were split failed to state a claim because it was based on nothing more than 6 conclusory speculation that the parties exercising power under the deed of trust were not 7 the noteholder or agents of the noteholder); 8 In this case the attachments to the Complaint and the judicially noticed documents 9 do not support Sanders’s conclusory allegations that Defendants are without authority to 10 conduct a trustee sale. Rather, the Deed, agreed to by Sanders, provided that MERS was 11 the original lender’s nominee, MERS was the beneficiary of the deed, and MERS held 12 legal title as well as the right to exercise any of lender’s interests under the deed of trust 13 (including the right to foreclose). Complaint, Ex. A, p. 3 (Doc. 1-1). Moreover, the 14 Assignments of the Deed shows that the interest in the Deed was properly assigned, 15 ultimately, to US Bank. Motion to Dismiss, Exs. 2-6 (Doc. 5-3 - 5-7). 16 Moreover, courts have recognized the enforceability of MERS deeds of trust and 17 the right of an assignee of MERS’ interests to foreclose as a deed of trust beneficiary, as 18 nominee for a lender. See e.g., Thomas v. Ally Bank, No. 1 CA-CV 17-0066, 2017 WL 19 6616620, at *2 (Ariz. Ct. App. Dec. 28, 2017) (deed of trust identified MERS as the 20 nominee and beneficiary); Silvas v. GMAC Mortg., LLC, No. CV-09-265, 2009 WL 21 4573234, *8, *14 (D. Ariz. Dec. 1, 2009) (summarily dismissing with prejudice complaint 22 alleging MERS was not a qualified DOT beneficiary); Blau v. Am.’s Servicing Co., No. 23 CV-08-773, 2009 WL 3174823, *5-*8 (D. Ariz. Sept. 29, 2009) (holding “MERS is 24 explicitly referred to [in the DOT] as the beneficiary,” and MERS’ assignee “thereby 25 became the beneficiary” with authority to initiate trustee’s sale and dismissing with 26 prejudice complaint challenging the validity of MERS assignments). 27 As another district court has stated: 28 “[N]umerous cases in this Court, the Ninth Circuit, and Arizona have held that 1 MERS may assign a deed of trust that leads to a trustee's sale. The [c]ourt cannot disregard this authority merely because Erickson recognized a possible theory that 2 MERS is not a statutory beneficiary.” Bayer v. Nationstar Mortgage LLC, Case No. CV-15-02430-PHX-DGC, 2017 WL 1133023, at *6 (D. Ariz. March 27, 3 2017). As the Bayer court observed “[i]t is well established that MERS may serve as a beneficiary of an Arizona trust deed in a nominee capacity, and that MERS 4 may validly assign its interest in a Deed of Trust.” Id. at *5. 5 Gardner v. Nationstar Mortg., LLC, 258 F. Supp. 3d 956, 968 (D. Ariz. 2017). Indeed, 6 Sanders’s “efforts to characterize MERS as not a ‘true’ beneficiary is unhelpful. That 7 characterization is inconsistent with the terms of [Sanders’s] Deed of Trust.” Id. 8 Sanders has not alleged an improper securitization; rather, he is attacking the 9 securitization process itself. The Court finds Sanders has failed to state a claim upon 10 which relief can be granted. Further, in light of the applicable authority, a more carefully 11 drafted complaint cannot state a claim for lack of standing. The Court will dismiss this 12 claim without leave to amend. 13 14 IX. Count II: Fraud in the Concealment and Count III: Fraud in the Inducement 15 Sanders alleges Defendants concealed the fact the loans were securitized as well 16 as the terms of the securitization agreements; Sanders also alleges Defendants 17 misrepresented to Sanders that Defendants were entitled to exercise the power of sale 18 provision contained in the Deed, i.e., that they were the holder and owner of the Note. 19 US Bank argues Sanders’s fraud claims fail to state a claim upon which relief may be 20 granted because they are based on securitization and have not been pleaded with 21 particularity. 22 As stated by another judge in this district: 23 Arizona law requires proof of nine elements to establish fraud: 24 (1) A representation; (2) its falsity; (3) its materiality; (4) the speaker's knowledge of its falsity or ignorance of its truth; (5) his intent that it should 25 be acted upon by the person and in the manner reasonably contemplated; (6) the hearer's ignorance of its falsity; (7) his reliance on its truth; (8) his right 26 to rely thereon; [and] (9) his consequent and proximate injury. 27 Nielson v. Flashberg, 101 Ariz. 335, 419 P.2d 514, 517–18 (1966). 28 Scovil v. Medtronic, Inc., 995 F. Supp. 2d 1082, 1097 (D. Ariz. 2014). Additionally, 1 fraud claims must be alleged with particularity. Fed.R.Civ.P. 9(b); see also , Lal v. Am. 2 Home Servicing, Inc., 680 F .Supp.2d 1218, 1221 (E.D.Cal.2010) (a pleading sufficient 3 under Rule 9(b) must identify the circumstances constituting fraud so that the defendant 4 can prepare an adequate answer from the allegations; such facts may include the times, 5 dates, places, benefits received, and other details of the alleged fraudulent activity). 6 Here, Sanders does not set forth his fraud claims with particularity. He has failed 7 to specifically allege the who, what, when, where, and how of the alleged misconduct. 8 Rather, he has lumped all Defendants together and conclusorily allege they concealed and 9 misrepresented facts. Sanders in no way identifies the specific defendants and specific 10 instances of alleged fraudulent conduct in a manner that comports with Rule 9(b)’s 11 specificity requirements. 12 As to Sanders’s claim of fraud in the inducement, which is premised on the 13 conclusory allegation that Defendants misrepresented that they had the right to foreclose 14 under the Deed, Sanders fails to state a cognizable fraud claim. Sanders has not pointed 15 to any authority which permits a general challenge to the authority of an entity to 16 foreclose on a deed of trust, absent a specific factual basis that demonstrates no authority, 17 under Arizona law. Indeed, the Deed states: 18 [T]he loan or a partial interest in it “can be sold one or more times without prior notice to Borrower,” but that “[i]f there is a change in Loan Servicer, Borrower 19 will be given written notice of the change” as required by consumer protection laws. Finally, the deed indicates that MERS has “the right to foreclose and sell the 20 property.” By signing the deeds of trust, the plaintiffs agreed to the terms and were on notice of the contents. 21 Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1042 (9th Cir. 2011); see 22 also Complaint, Ex. A, pp. 11 (Doc. 1-1). Sanders’s allegations fail to show the Deed 23 was unassignable and fails to provide a factual basis demonstrating Defendants did not 24 have such authority. See Paulsen v. CNF, Inc., 559 F.3d 1061, 1071 (9th Cir. 2009) (the 25 court is “not ... required to accept as true conclusory allegations that are contradicted by 26 documents referred to in the complaint, and [the court does] not necessarily assume the 27 truth of legal conclusions merely because they are cast in the form of factual 28 1 allegations”). Because the alleged facts show Defendants did have the right to initiate 2 foreclosure proceedings, the factual allegations fail to plausibly support Sanders’s claim 3 that Defendants misrepresented their right to do so. Accordingly, Sanders’s fraud in the 4 inducement claim fails as a matter of law. 5 As to the alleged fraud in the concealment claim, Sanders cannot, as a matter of 6 law, establish he suffered damages as a result of the alleged concealment. 7 “[S]ecuritization merely creates a separate contract, distinct from plaintiff['s] debt 8 obligations under the note and does not change the relationship of the parties in any way.” 9 Reyes v. GMAC Mortgage LLC, 2011 WL 1322775, at *3 (D. Nev. Apr. 5, 2011) 10 (dismissing fraud claim based on defendant’s failure to disclose securitization of 11 plaintiffs' home loans because securitization did not alter the parties' relationship in any 12 way). Therefore, the parties' rights and obligations regarding the Property mortgage loan 13 were not impacted in any meaningful manner by the fact that the loan was securitized or 14 the terms of the separate agreement underlying that securitization. The mere fact that 15 Defendants allegedly concealed information concerning securitization of the loan could 16 not have caused the damages Sanders allege. Rather, Sanders has failed to allege a causal 17 connection between the concealment and the damages alleged in the Complaint. 18 Fridenmaker v. Valley Nat. Bank of Arizona, 23 Ariz. App. 565, 569, 534 P.2d 1064, 19 1068 (1975) (actionable fraud requires a proximate injury). Sanders’s claim for fraud in 20 the concealment is without merit as a matter of law. Moreover, as previously discussed, 21 Sanders has failed to allege a claim based on securitization. Dismissal without leave to 22 amend these claims for this reason is appropriate. 23 While a more carefully drafted complaint may purport to a state a claim with 24 particularity, because the claims themselves are based on a securitization theory which 25 fails as a matter of law, dismissal without leave to amend is appropriate. See e.g. Ordono 26 v. U.S. Bank Nat'l Ass'n, No. 14–cv–00774–JD, 2014 WL 3610952, *3 (N.D. Cal. Jul. 21, 27 2014) (dismissing all eleven of plaintiff's causes of action as they all improperly 28 depended on plaintiff's “attacks to the securitization process and the allegedly improper 1 assignments of her note or deed of trust”). 2 3 X. Count IV: Intentional Infliction of Emotional Distress 4 Sanders alleges Defendants intentionally, knowingly, and recklessly 5 misrepresented to him that they were entitled to exercise the sale provision of the Deed 6 and fraudulently attempted to foreclose on the Property. Sanders alleges the conduct is 7 so outrageous and extreme that it exceeds all bounds which are usually tolerated in a 8 civilized community. US Bank asserts Sanders has failed to state a claim for intentional 9 infliction of emotional distress. 10 “A plaintiff suing for intentional infliction of emotional distress must prove the 11 defendant caused severe emotional distress by extreme and outrageous conduct 12 committed with the intent to cause emotional distress or with reckless disregard of the 13 near-certainty that such distress would result.” Watkins v. Arpaio, 367 P.3d 72, 74–75 14 (Ariz. Ct. App. 2016); Citizen Publishing Co. v. Miller, 115 P.3d 107, 111 (2005); Wells 15 Fargo Bank v. Arizona Laborers, Teamsters, and Cement Masons Local No. 395 Pension 16 Trust Fund, 38 P.3d 12 (Ariz. 2002) (discussing difference between negligent and 17 intentional torts). “The trial court determines whether the alleged acts are sufficiently 18 extreme and outrageous to state a claim for relief.” Wallace v. Casa Grande Union High 19 Sch. Dist. No. 82 Bd. of Governors, 909 P.2d 486, 495 (Ariz. Ct. App. 1995); Restatement 20 (Second) of Torts § 46, comment h. 21 As previously discussed, the alleged facts show Defendants did have the right to 22 initiate foreclosure proceedings and fail to plausibly support Sanders’s claim that 23 Defendants misrepresented their right to do so. Because Defendants were authorized 24 under the Deed to foreclose on the property, the Court finds Defendants’s conduct was 25 not extreme and outrageous conduct. Dismissal of this claim without leave to amend is 26 appropriate. 27 28 1 XI. Count V: Slander of Title 2 Sanders asserts Defendants disparaged Sanders’s exclusive valid title by and 3 through the preparing, posting, publishing, and recording of documents. He alleges 4 Defendants knew or should have known the documents were improper because they had 5 no right, title, or interest in the Property. US Bank asserts Sanders has not adequately 6 alleged malice, special damages, or facts showing falsity; further, Sanders has not 7 adequately alleged he is the titleholder free of US Bank’s Deed or that he did not default 8 on the loan. 9 In Arizona: 10 The elements of slander of title . . . are the uttering and publication of the slanderous words by the defendant, the falsity of the words, malice and special 11 damages. 50 Am.Jur.2d, Libel and Slander s 541, p. 1060 (1970). Of these elements, malice has been said to be the gist of the action. Glieberman v. Fine, 12 248 Mich. 8, 226 N.W. 669 (1929). Thus a bona fide claim of title or comments on matters of public interest are generally held to be qualifiedly privileged and will 13 defeat the action unless actual or express malice is shown. See, Kemart Corp. v. Printing Arts Research Lab, Inc., 269 F.2d 375 (9th Cir., 1959), and Sinclair 14 Refining Co. v. Jones Super Service Station, 188 Ark. 1075, 70 S.W.2d 562 (1934). 15 City of Tempe v. Pilot Properties, Inc., 22 Ariz. App. 356, 363, 527 P.2d 515, 522 16 (1974);5 Snyder v. HSBC Bank, USA, N.A., 913 F.Supp. 2d 755, 770 (D. Ariz. 2012). 17 While Sanders conclusorily alleges malicious intent, he fails to allege any facts in 18 support of this allegation. Further, Sanders has failed to allege any facts that support a 19 claim of falsity. Rather, the documents attached to the Complaint and the judicially 20 noticed documents do not show Sanders is a titleholder free of US Bank’s Deed or that 21 Sanders did not default on the loan. Sanders has failed to allege facts to support his 22 assertions that documents were false, assignments were invalid, or any Defendant acted 23 maliciously. SWC Baseline & Crismon Inv'rs, L.L.C. v. Augusta Ranch Ltd. P'ship, 265 24 P.3d 1070, 1086 (Ct. App. 2011). The Court finds dismissal of this claim without leave 25 26 5Federal courts follow the decisions of intermediate state appellate courts when applying 27 state law absent convincing evidence state supreme court would decide differently. Ryman v. Sears, Roebuck & Co., 505 F.3d 993, 994 (9th Cir. 2007); Cmty. Nat. Bank v. Fid. & Deposit Co. 28 of Maryland, 563 F.2d 1319, 1321 n. 1 (9th Cir. 1977), citations omitted. 1 to amend is appropriate. 2 3 XII. Count VI: Quiet Title 4 Sanders alleges neither Defendants nor any parties to the securitization process 5 hold a perfected and secured claim in the property. Sanders asserts, therefore, Defendants 6 and others should be permanently enjoined from asserting an adverse claim to Sanders’s 7 title to the Property. US Bank asserts Sanders has failed to adequately state a claim upon 8 which relief may be granted. 9 As stated by another judge of this district: 10 Plaintiff's action is for quiet title. Plaintiff fails to state a claim upon which relief can be granted for four reasons. First, Plaintiff fails to plead the elements of a 11 quiet title action. A.R.S. § 12-1102; Lavidas v. Smith, 987 P.2d 212, 218 (Ariz. Ct. App. 1999) (Plaintiff must allege he possesses title to the property, the 12 defendant claims an adverse interest, and it would be inequitable to let the defendant's interest stand). Second, Plaintiff does not have standing to challenge 13 a valid assignment of interest between third parties. In re Mortgage Electronic Registration Systems (MERS) Litigation, CV 10-1547-PHX-JAT, 2012 WL 14 932625, at *3 (D. Ariz. Mar. 20, 2012). Third, Plaintiff's allegations are directly contradicted by the Deed of Trust, on which Plaintiff relies. Steckman v. Hart 15 Brewing, Inc., 143 F.3d 1293, 1295-96 (9th Cir. 1998) (the Court is “not required to accept as true conclusory allegations which are contradicted by documents 16 referred to in the complaint”). Fourth, Plaintiff cannot bring a quiet title action under A.R.S. § 12-1101 because he has not paid off his mortgage in full. Daghlan 17 v. TBI Mortg. Co., CV-12-01415-PHX-NVW, 2013 WL 179452 (D. Ariz. Jan. 17, 2013). As such, Plaintiff has failed to plead “sufficient factual matter, accepted 18 as true, to ‘state a claim for relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (Twombly, 550 U.S. at 570). 19 Reyes v. Bank of Am., No. CV-13-00283-PHX-ROS, 2013 WL 12099996, at *1 (D. Ariz. 20 Mar. 20, 2013). Similarly, Sanders has not adequately alleged he “possesses title to the 21 property nor shows a readiness to pay off his loan.” Russell v. OneWest Bank, FSB, No. 22 CV 11-01463-PHX-FJM, 2011 WL 5007958, at *2 (D. Ariz. Oct. 20, 2011). When 23 Sanders executed a promissory note, which was secured by the Deed, for the amount 24 borrowed, the Deed passed legal title to the trustee. Id. (“In Arizona, a deed of trust 25 passes legal title to the trustee.”), citations omitted. In other words, the alleged facts and 26 attached documents show Sanders, as trustor, does not hold title to the Property. This 27 claim will be dismissed without leave to amend. 28 1 XIII. Count VII: Declaratory Relief 2 Sanders asserts that, because he asserts Defendants do not have the authority to 3 foreclose upon and sell the Property while Defendants claim they do have such authority, 4 a controversy exists between the parties. Sanders, therefore, seeks declaratory relief 5 regarding the rights, obligations, and interests of the parties as to the Property. 6 The Court agrees with US Bank that this claim is derivative of Sanders’s principal 7 claims relying on improper securitization. Sanders’s request for declaratory relief does 8 not have an independent basis. See e.g. Hall v. Bank of New York Mellon, 746 F. App'x 9 627, 629 (9th Cir. 2018) (where plaintiff’s claims were properly dismissed, request for 10 declaratory relief was appropriately dismissed); Stock West, Inc. v. Confederated Tribes 11 of the Colville Res., 873 F.2d 1221, 1225 (9th Cir. 1989). Dismissal without leave to 12 amend of this claim is appropriate. 13 14 XIV. Count VIII: Violation of TILA and Count X: Rescission 15 Sanders alleges Defendants violated the Truth in Lending Act (“TILA”) by failing 16 to provide him with accurate material disclosures. He alleges Defendants did not take 17 into account the intent of the legislature which was to inform home buyers of the “pros 18 and cons of adjustable rate mortgages in a language (both written and spoken) that they 19 can understand and comprehend; and advise them to compare similar loan products with 20 other lenders.” Complaint, p. 21 (Doc. 1). Sanders also alleges he is entitled to rescind 21 the loan based on Defendants’ conduct. US Bank asserts Sanders’s TILA claim is time- 22 barred by the one-year statue of limitations. 15 U.S.C. § 1640(e). US Bank further 23 argues Sanders’ rescission claim is barred by TILA’s three year statute of repose. Beach 24 v. Ocwen Fed. Bank, 523 U.S. 410 (1998). 25 TILA's purpose is to “protect consumers' choice through full disclosure and to 26 guard against the divergent and at times fraudulent practices stemming from uninformed 27 use of credit.” King v. California, 784 F.2d 910, 915 (9th Cir.1986). Sanders 28 conclusorily alleges Defendants did not provide him with required disclosures. However, 1 he does not specify which Defendant or which documents were not in compliance with 2 TILA. In other words, he has not alleged any facts to state a claim that any Defendant did 3 not make disclosures which it was required to make, any disclosures by a Defendant were 4 untimely, or any disclosures that were provided were misleading. See generally Rubio 5 v. Capital One Bank, 613 F.3d 1195 (9th Cir. 2010). 6 As to US Bank’s assertion Sanders’s TILA claim is barred by the one year statute 7 of limitations, Sanders asserts the statute of limitations was tolled by “Defendants’ failure 8 to effectively provide the required disclosures and notices.” Complaint, p. 22 (Doc. 1). 9 As stated by US Bank, a TILA action to recover damages must be brought within one 10 year. 15 U.S.C. § 1640(e); Miguel v. Country Funding Corp., 309 F.3d 1161 (9th Cir. 11 2002); Silvas v. E*Trade Mortg. Corp., 514 F.3d 1001 (9th Cir. 2008). Here, the loan 12 transaction was alleged to have occurred on or about February 26, 2007. Sanders has not 13 stated what disclosures and notice were not provided to him such that he can demonstrate 14 that, “despite all due diligence, [Sanders was] unable to obtain vital information bearing 15 on the existence of the claim.” Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 16 1034, 1045 (9th Cir. 2011), citation omitted; see also Cross v. Hamilton Mortg. Co., No. 17 CV-14-01586-TUC-RCC, 2014 WL 11631716, at *4 (D. Ariz. June 13, 2014). This claim 18 is time-barred and the statute of limitations defense is complete and obvious on the face 19 of the Complaint, attached documents, and the Court's own records. See Franklin v. 20 Murphy, 745 F.2d 1221, 1228-30 (9th Cir. 1984) (sua sponte dismissal under 28 U.S.C. 21 § 1915); see also Pisciotta v. Teledyne Industries, Inc., 91 F.3d 1326, 1331 (9th Cir. 22 1996) (court may grant a motion to dismiss based on the running of the statute of 23 limitations "only if the assertions in the complaint, read with the required liberality, 24 would not permit the plaintiff to prove that the statute was tolled"). Dismissal without 25 leave to amend of this claim is appropriate. 26 Additionally, the Court agrees with US Bank that a claim for rescission under 27 TILA must be brought within three years of the date the loan was consummated. 15 28 U.S.C. §§ 1635(f); McOmie-Gray v. Bank of Am. Home Loans, 667 F.3d 1325, 1329 (9th 1 Cir. 2012) (Section 1635(f) is not merely a statute of limitations, it is a “statute of repose” 2 that “completely extinguishes the underlying right itself.”), abrogated on other grounds. 3 The Court will dismiss this claim without leave to amend. 4 5 XV: Count IX: Violation of RESPA 6 Sanders alleges Defendants violated the Real Estate Settlement Practices Act 7 ("RESPA") because the interest and income gained by Defendants is disproportionate to 8 Sanders’s situation and Defendants failed to disclose they would gain a financial benefit 9 while Sanders would suffer financially as a result of the loan product sold to Sanders. US 10 Bank asserts Sanders appears to referring to the original loan and the Complaint does not 11 allege US Bank was involved in the origination of the loan. US Bank also asserts 12 Sanders’s claim is barred by RESPA’s three year statute of limitations. 13 The stated Congressional purpose of RESPA is to “insure that consumers . . . are 14 provided with greater and more timely information on the nature and costs of the 15 settlement process and are protected from unnecessarily high settlement charge[s].” 12 16 U.S.C. § 2601(a); see also 17 Am.Jur.2d Consumer Protection § 228 (2010). Sanders 17 alleges: 18 No separate fee agreements, regarding the use of “Chase Bank Cost of Savings” as the Index for the basis of this loan, [d]isclosures of additional income due to 19 interest rate increases or the proper form and procedure in relation to the Borrower’s Rights to Cancel were provided. 20 Complaint, p. 23 (Doc. 1). However, Sanders does not specify which provision mandates 21 the disclosure of a document he alleges he should have received. 22 Moreover, Sanders has not alleged actual damages caused by the asserted RESPA 23 violation. 12 U.S.C. § 2605(f)(1)(A) (“Whoever fails to comply with this section shall 24 be liable to the borrower … [for] any actual damages to the borrower as a result of the 25 failure …”); Vega v. JPMorgan Chase Bank, N.A., 2009 WL 2731039 (E.D.Cal. 2009) 26 (“alleging a breach of RESPA duties alone does not state a claim under RESPA. 27 Plaintiffs must, at a minimum, also allege that the breach resulted in actual damages.”). 28 1 Rather, Sanders merely alleges he has been damaged by an amount not yet ascertained. 2 The Court finds Sanders, having failed to allege actual damages, has failed to state a 3 claim upon which relief may be granted. See e.g., Martini v. JPMorgan Chase Bank, 4 N.A., 634 Fed. Appx. 159 (6th Cir. 2015) (damaged credit scores, damaged reputations, 5 and inability to obtain a home mortgage for seven years, were due to their inability to pay 6 their mortgage, not mortgage assignee's alleged violation of RESPA); Whittier v. Ocwen 7 Loan Servicing, L.L.C., 594 Fed. Appx. 833 (5th Cir. 2014) (attorneys' fees and litigation 8 expenses incurred by mortgagors did not satisfy actual damages requirement of their 9 RESPA claim against loan servicer); Wirtz v. JPMorgan Chase Bank, N.A., 185 F. Supp. 10 3d 1140 (D. Minn. 2016) (eighty dollar fee incurred to obtain bank statements was a 11 direct result of loan servicer’s RESPA violation). 12 Additionally, the Court agrees with US Bank that this claim is barred by the statute 13 of limitations and Sanders has not shown he is entitled to tolling. The Court finds 14 dismissal of this claim without leave to amend is appropriate. 15 16 XVI. Notice of Joinder (Doc. 19), Motion to Quash Service and Joinder to Motion to Dismiss (Doc. 22) and Motion for Discovery (Doc. 32) 17 The Court has determined dismissal of all claims without leave to amend is 18 appropriate. The Court, therefore, will dismiss these motions as moot. 19 20 Accordingly, IT IS ORDERED: 21 1. The Motion to File Last Page of Lawsuit (Doc. 17) is GRANTED. 22 2. The Motion to Dismiss Plaintiff’s Complaint (Doc. 5) is GRANTED. The 23 Complaint and all claims alleged within it are DISMISSED WITH PREJUDICE AND 24 WITHOUT LEAVE TO AMEND against all Defendants. 25 3. The Motion for Extension of Time to File an Answer (Doc. 6), Notice of 26 Joinder (Doc. 19), Motion to Quash Service and Joinder to Motion to Dismiss (Doc. 22), 27 and Motion for Discovery (Doc. 32) are DISMISSED AS MOOT. 28 1 4, The Clerk of Court shall enter judgment and shall then close its file in this 2 || matter. 3 DATED this 23rd day of June, 2020. ° La KO c Jon sereooee— 6 Cindy K. Jorfénso 5 United States District Judge 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -23-