Vien Phuong Thi Ho v. Nationstar Mortgage, LLC

• Court: District Court, C.D. California
• Decided: April 9, 2021
• Docket: 2:19-cv-10532
• Status: Unknown

Opinion

O 1 JS-6 2 3 4 5 6 7

8 United States District Court 9 Central District of California

11 VIEN PHUONG THI HO, Case № 2:19-cv-10532-ODW (JPRx)

12 Plaintiff, ORDER GRANTING

13 v. DEFENDANTS’ MOTION TO DISMISS THE FIRST AMENDED 14 NATIONSTAR MORTGAGE, LLC, et COMPLAINT [84] al., 15

Defendants. 16

17 18 I. INTRODUCTION 19 Pro se Plaintiff Vien Phuong Thi Ho brings a First Amended Complaint (“FAC”) 20 for, among other things, fraudulent lending and debt collection practices against 21 Defendants Nationstar Mortgage, LLC d/b/a Mr. Cooper (additionally sued erroneously 22 as Nationstar Mortgage Holdings Inc., and Mr. Cooper Group Inc.) (“Nationstar”); 23 HSBC Bank USA, N.A. (additionally sued erroneously as HSBC Bank USA, N.A. 24 CTLA HSBC Bank USA Corp Trust and Loan Agency) (“HSBC”); Mortgage 25 Electronic Registration Systems, Inc. (“MERS”); and Affinia Default Services, LLC 26 (“Affinia”) (collectively, “Defendants”). (See FAC, ECF No. 1.) 27 Nationstar, HSBC, and MERS move to dismiss the FAC. (Mot. Dismiss 28 (“Motion” or “Mot.”), ECF No. 84.) Affinia also joins the Motion. (Affinia Joinder in 1 Mot., ECF No. 86.) For the reasons that follow, Defendants’ Motion is GRANTED 2 with prejudice.1 3 II. BACKGROUND 4 The Court has detailed the facts underlying this action in a prior Order and hereby 5 incorporates that discussion by reference. (See Order Granting Defs.’ Mot. J. 6 Pleadings 3–4, ECF No. 80.) The relevant facts do not appear to have changed from 7 Plaintiff’s initial Complaint. On or around June 23, 2007, Plaintiff borrowed $548,000 8 (the “Loan”) to refinance real property located in Long Beach, California (the “Subject 9 Property”), which she secured by a Deed of Trust. (See id.) On January 11, 2011, 10 Plaintiff received a Chapter 7 bankruptcy discharge which relieved her of personal 11 liability for prior debts, including the loan. (See id.) Because a creditor’s right to 12 foreclose on a mortgage passes through bankruptcy, however, Defendants continued to 13 seek collection on the Loan and ultimately moved to foreclose on the Subject Property. 14 (See id.) Plaintiff alleges that all of Defendants’ conduct has been fraudulent. (See id.) 15 III. LEGAL STANDARD 16 A court may dismiss a complaint under Federal Rule of Civil Procedure 17 (“Rule”) 12(b)(6) for lack of a cognizable legal theory or insufficient facts pleaded to 18 support an otherwise cognizable legal theory. Balistreri v. Pacifica Police Dep’t, 19 901 F.2d 696, 699 (9th Cir. 1988). A complaint need only satisfy the minimal notice 20 pleading requirements of Rule 8(a)(2)—a short and plain statement of the claim. Porter 21 v. Jones, 319 F.3d 483, 494 (9th Cir. 2003). But factual “allegations must be enough to 22 raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 23 544, 555 (2007). That is, the complaint must “contain sufficient factual matter, accepted 24 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 25 662, 678 (2009) (internal quotation marks omitted). Testing the plausibility standard is 26 a “context-specific task that requires the reviewing court to draw on its judicial 27

28 1 After carefully considering the papers filed in connection with the Motions, the Court deemed the matters appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. 1 experience and common sense.” Iqbal, 556 U.S. at 679. A court is generally limited to 2 the pleadings and must construe all “factual allegations set forth in the complaint . . . as 3 true and . . . in the light most favorable” to the plaintiff. Lee v. City of Los Angeles, 4 250 F.3d 668, 679 (9th Cir. 2001). However, a court need not blindly accept conclusory 5 allegations, unwarranted deductions of fact, or unreasonable inferences. Sprewell v. 6 Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). 7 A court dismissing a complaint should provide leave to amend if the complaint 8 could be saved by amendment. Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 9 1025, 1031 (9th Cir. 2008); see also Fed. R. Civ. P. 15(a)(2) (“The Court should freely 10 give leave when justice so requires.”). Reasons to deny leave to amend include “bad 11 faith, undue delay, prejudice to the opposing party, and/or futility.” Serra v. Lappin, 12 600 F.3d 1191, 1200 (9th Cir. 2010) (quoting William O. Gilly Enters. v. Atl. Richfield 13 Co., 588 F.3d 659, 669 n.8 (9th Cir. 2009)); see also Foman v. Davis, 371 U.S. 178, 14 182 (1962). 15 IV. DISCUSSION 16 Defendants offer numerous grounds for dismissing the FAC. (See generally 17 Mot.) Without unnecessarily addressing each ground for dismissal raised in the Motion, 18 the Court GRANTS the Motion for the following two reasons. 19 A. Failure to Timely Oppose 20 Plaintiff’s Opposition was not timely filed. (See Reply to Non-Opposition, ECF 21 No. 85.) “The failure to file [an opposition], or the failure to file it within the deadline, 22 may be deemed consent to the granting or denial of the motion . . . .” C.D. Cal. 23 L.R. 7-12; see Hines v. Toyota Motor Sales, U.S.A., Inc., 504 F. App’x 642, 643 24 (9th Cir. 2013) (affirming grant of unopposed motion to dismiss, based on Local 25 Rule 7-12). Before granting an unopposed motion, courts must consider: “(1) the 26 public’s interest in expeditious resolution of litigation; (2) the court’s need to manage 27 its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring 28 disposition of cases on their merits; and (5) the availability of less drastic sanctions.” 1 Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995). The first factor always weighs in 2 favor of dismissal, Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999), and the 3 fourth factor often weighs against dismissal, Hernandez v. City of El Monte, 138 F.3d 4 393, 401 (9th Cir. 1998). 5 Here, the Court finds that the first, second, and third Ghazali factors weigh in 6 favor of dismissing the Motion as unopposed, in part because Plaintiff has been warned 7 that even pro se plaintiffs must comply with the Federal Rules of Civil Procedure and 8 the Court’s Local Rules. (See Order Denying Pl.’s Ex Parte Appls. 3, ECF No. 72; 9 Order Granting Defs.’ Mot. J. Pleadings 12 n.6.) Indeed, this is not the first time 10 Plaintiff has failed to timely oppose a motion. (See Defs.’ Reply to Non-Opp’n ISO 11 Defs.’ Mot. J. Pleadings, ECF No. 65.) Additionally, the Court finds that the fourth and 12 fifth Ghazali factors do not necessarily weigh against dismissal, either, because 13 Plaintiff’s FAC otherwise lacks merit, as discussed below. Accordingly, the Court finds 14 that dismissal of the FAC for failure to oppose the Motion is warranted in this case. See 15 C.D. Cal. L.R. 7-12. 16 B. Failure to Comply with Rule 8(a) 17 Even if Plaintiff had timely opposed the Motion, the FAC must be dismissed. 18 The Court previously dismissed Plaintiff’s initial Complaint for failure to satisfy the 19 plain statement requirement of Rule 8(a). (See Order Granting Defs.’ Mot. J. 7–12); 20 see also Fed. R. Civ. P. 8(a)(2) (requiring at least “a short and plain statement of the 21 claim showing that the pleader is entitled relief”). Defendants now move to dismiss the 22 FAC because, among other reasons, the FAC “does nothing to cure the fatal 23 deficiencies” that resulted in the Court dismissing the initial Complaint. (Mot. 8.) The 24 Court agrees. 25 Plaintiff’s FAC (with attachments thereto) is extremely similar in formatting and 26 substance to the initial Complaint. Again, Plaintiff brings thirteen claims against 27 Defendants, this time for: (1) quiet title; (2) violations of the Fair Debt Collection 28 Practice Act (“FDCPA”); (3) violations of the Rosenthal Fair Debt Collection Practices 1 Act (“RFDCPA”); (4) cancellation of written instrument under California Civil Code 2 section 3412; (5) fraud; (6) negligent misrepresentation; (7) violations of California’s 3 Consumer Legal Remedies Act (“CLRA”); (8) wrongful foreclosure; (9) invasion of 4 privacy; (10) slander of title; (11) intentional infliction of emotional distress (“IIED”); 5 (12) violation of California’s Unfair Competition Law (“UCL”); and (13) declaratory 6 judgment. (See FAC 4.) 7 Plaintiff’s FAC is just as “verbose, confusing, distracting, ambiguous, at several 8 points unintelligible, and largely irrelevant or entirely conclusory” as was the initial 9 Complaint. (See Order Granting Defs.’ Mot. J. Pleadings 8.) Rule 8 precludes the filing 10 of such complaints. See Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 11 1047, 1059 (9th Cir. 2011) (collecting cases). As the Ninth Circuit has explained: 12 Prolix, confusing complaints . . . impose unfair burdens on litigants and judges. As a practical matter, the judge and opposing counsel, in order to 13 perform their responsibilities, cannot use a [prolix, confusing] 14 complaint . . . and must prepare outlines to determine who is being sued 15 for what. Defendants are then put at risk that . . . plaintiffs will surprise them with something new at trial which they reasonably did not understand 16 to be in the case at all, and that res judicata effects of settlement or 17 judgment will be different from what they reasonably expected. . . . The judge wastes half a day in chambers preparing the “short and plain 18 statement” which Rule 8 obligated plaintiffs to submit. He then must 19 manage the litigation without knowing what claims are made against whom. This leads to discovery disputes and lengthy trials, prejudicing 20 litigants in other case[s] who follow the rules, as well as defendants in the 21 case in which the prolix pleading is filed. 22 McHenry v. Renne, 84 F.3d 1172, 1179–80 (9th Cir. 1996); see also Hatch v. Reliance 23 Ins. Co., 758 F.2d 409, 415 (9th Cir. 1985) (affirming a Rule 8(a) dismissal of a 24 complaint that “exceeded 70 pages in length, [and was] confusing and conclusory”). 25 Defendants suggest that the FAC is another “shotgun pleading” by Plaintiff. 26 (Mot. 7.) The Court agrees. As another court in this district has stated: 27 Shotgun pleadings are pleadings that overwhelm defendants with an 28 unclear mass of allegations and make it difficult or impossible for defendants to make informed responses to the plaintiff’s allegations. They 1 are unacceptable. . . . [P]laintiffs must give the defendants a clear 2 statement about what the defendants allegedly did wrong. . . . One 3 common type of shotgun pleading comes in cases with multiple defendants where the plaintiff uses the omnibus term “Defendants” throughout a 4 complaint by grouping defendants together without identifying what the 5 particular defendants specifically did wrong. Another type is where the plaintiff recites a collection of general allegations toward the beginning of 6 the Complaint, and then each count incorporates every antecedent 7 allegation by reference. . . . This shotgun pleading style deprives 8 Defendants of knowing exactly what they are accused of doing wrong. 9 Sollberger v. Wachovia Secs., LLC, No. SACV 09-0766 AG (ANx), 2010 WL 2674456, 10 at *4 (C.D. Cal. June 30, 2010) (internal quotation marks omitted). 11 This time, Plaintiff filed a fifty-six-page FAC, accompanied by 166 pages of 12 attachments which include several exhibits labeled as Exhibits A–F and Exhibits 1–13. 13 (See FAC; Supplement to FAC, ECF No. 83-1; Ex. to FAC, ECF No. 83-2; Exs. A–F 14 to FAC, ECF No. 83-3; Exs. 1–6 to FAC, ECF No. 83-4; Exs. 7–13 to FAC, ECF 15 No. 83-5.) Just as before, the FAC and exhibits make for an unnecessarily tangled web 16 of documents that obfuscate critical details within Plaintiff’s allegations. For instance, 17 Plaintiff once again attaches an “Exhibit F” to the FAC—a thirteen-page document 18 titled “Complaint for Fraud,” which appears to be a second complaint against 19 Defendants that was never filed. (See FAC Ex. F.) And again, Exhibits 1–13 and 20 Exhibits A–E appear to be attached to Exhibit F and to the operative Complaint. (See 21 generally id.; FAC.) The Court has already explained to Plaintiff that filing multiple 22 “complaints” in this manner is extremely confusing and distracting, and it is not 23 permitted. (See Order Granting Defs.’ Mot. J. Pleadings 9.) 24 Furthermore, Plaintiff again repeatedly incorporates the exhibits “by reference” 25 throughout the FAC, rendering it impossible to discern what exactly is being alleged. 26 (See, e.g., FAC ¶ 9 (“The preceding paragraphs and Exhibit ‘F’ – fraud exhibits and 27 supplemental fraud pleadings are incorporated herein by reference as if fully setout [sic] 28 herein.”); id. ¶¶ 13, 23, 40, 56, 59, 60–64, 73, 75, 78.) The Court has already explained 1 to Plaintiff that it is not acceptable to incorporate over a hundred pages of exhibits, 2 (including an entire second “complaint”), and every preceding allegation, into each and 3 every cause of action because this “shotgun” style of pleading does not meet the 4 requirements of Rule 8(a). (See Order Granting Defs.’ Mot. J. Pleadings 9.) 5 Moreover, the majority of Plaintiff’s allegations are once again entirely 6 conclusory and not plausible. The Court previously warned Plaintiff: “Any amended 7 complaint must include short and plain statements setting forth each claim against 8 Defendants, identifying facts to support every element of each claim, in non-conclusory 9 fashion. Merely saying that every document she received is ‘fraudulent’ will not 10 suffice.” (Id. at 12 (emphasis added).) Yet this is precisely what Plaintiff does in the 11 FAC. (See generally FAC.) 12 Lastly, the Court again acknowledges that Plaintiff’s main argument appears to 13 be that Defendants could not have an interest in the Subject Property because her debts 14 were discharged in her bankruptcy proceedings. (See Supplement to FAC (setting forth 15 a “Short History” of the case titled “Debt Harassment Committed by Nationstar . . . 16 After A Bankruptcy Chapter 7 Discharge”).) The Court has already explained to 17 Plaintiff that if this is the essence of her case, Defendants are correct that she cannot 18 prevail on such a theory, because even if the Chapter 7 bankruptcy discharged 19 Plaintiff’s personal liability on the Loan, her creditor’s “right to foreclose on the 20 mortgage survives or passes through the bankruptcy.” (See Order Granting Defs.’ Mot. 21 J. Pleadings 11 (quoting Johnson v. Home State Bank, 501 U.S. 78, 83 (1991); 22 11 U.S.C. §§ 522(c)(2), 524(a)(1)).) 23 V. CONCLUSION 24 For all the aforementioned reasons, Defendants’ Motion to Dismiss the FAC is 25 GRANTED. (ECF No. 84.) Regarding leave to amend, the Court previously warned 26 Plaintiff that she “may not file another shotgun style pleading, or else it may be 27 dismissed with prejudice.” (See Order Granting Defs.’ Mot. J. Pleadings 12); see also 28 Schmidt v. Herrmann, 614 F.2d 1221, 1223–24 (9th Cir. 1980) (affirming dismissal 1 || with prejudice for failure to obey a court order to file a short and plain statement of the 2 || claim as required by Rule 8). Also, to the extent Plaintiffs claims are decipherable and 3 || not merely conclusory, they appear to rely on a flawed legal theory which cannot be 4|| cured by amendment. See Manzarek, 519 F.3d at 1031. Accordingly, the Court finds 5 || that amendment would be futile, would cause undue delay, and would unduly prejudice 6 || Defendants. See Serra, 600 F.3d at 1200. Thus, the FAC is DISMISSED WITH 7] PREJUDICE. The Clerk of Court shall close this case. 8 9 IT IS SO ORDERED. 10 1] April 9, 2021 ele ae 12 Ged Yah B OTIS D. WRIGHT, II 4 UNITED STATES DISTRICT JUDGE

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