Opinion
3:22-cv-02005-HZ
10-05-2023
LUCILLE WILLS, Plaintiff, v. BANK OF NEW YORK MELLON, Defendant.
Lucille Wills Houser LLP
Lucille Wills
Houser LLP
OPINION & ORDER
HERNÁNDEZ, DISTRICT JUDGE:
This matter comes before the Court on the Motion to Dismiss of Defendant Bank of New York Mellon (“BONY”). ECF 29. For the reasons that follow, the Court GRANTS the Motion.
BACKGROUND
The following facts are taken from the Complaint, BONY's Motion to Dismiss, and documents attached to BONY's Request for Judicial Notice (“RJN”).
On March 27, 2007, Plaintiff Lucille Wills received a mortgage loan from Decision One Mortgage Company LLC secured by a deed of trust. In October 2013 Ditech Financial LLC (“Ditech”) assumed servicing of Plaintiff's mortgage loan.
On February 16, 2016, Plaintiff filed a pro se complaint against nine defendants including BONY and Ditech asserting claims for unlawful foreclosure; fraud; intentional infliction of emotional distress; quiet title; slander of title; violation of the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2605; violation of the Truth in Lending Act (“TILA”), 15 U.S.C. § 1601; and rescission. Wills v. Ditech, et al., 3:16-cv-00274-SI (Wills I). On April 7, 2016, BONY filed a motion to dismiss Plaintiff's claims against it. On June 16, 2016, United States District Judge Michael Simon ordered “[p]arties not named in [Plaintiff's to-be-filed] amended complaint will be deemed . . . as dismissed in this action.” Wills I, ECF 31. On June 23, 2016, Plaintiff filed a first amended complaint in which she no longer asserted claims against BONY. On June 27, 2016, Judge Simon denied BONY's motion to dismiss as moot and, pursuant to Judge Simon's June 16, 2016 Order, BONY was dismissed from Wills I. Plaintiff continued to assert claims against Ditech for violation of RESPA, unlawful foreclosure, and breach of contract. On March 29, 2018, Judge Simon granted Ditech's motion for summary judgment and entered a judgment dismissing the case. On April 26, 2018, Plaintiff appealed Wills I to the Ninth Circuit.
On September 21, 2018, Plaintiff's property was sold to BONY. A Trustee's Deed Upon Sale was recorded in Multnomah County on September 24, 2018.
On February 11, 2019, “Ditech . . . and certain of its affiliates . . . filed petitions for relief under chapter 11 of title 11 of the United States Code” in the United States Bankruptcy Court for the Southern District of New York. In re Ditech Holding Corp., No. 19-10412 (JLG), 2021 WL 2881489, at *4 (Bankr. S.D.N.Y. July 6, 2021).
On April 16, 2019, the Ninth Circuit stayed Wills I pursuant to notice of Ditech's bankruptcy and the imposition of an automatic stay by the bankruptcy court.
On April 25, 2019 Plaintiff filed a “general unsecured claim” in Ditech's bankruptcy in the amount of $220,642. In re Ditech Holding Corp., 2021 WL 2881489, at *4. Ditech's representatives objected to Plaintiff's claim and requested the bankruptcy court disallow and expunge Plaintiff's claim. Id. The bankruptcy court granted the representatives' request and disallowed and expunged Plaintiff's claim.
On August 9, 2019, the Ninth Circuit administratively closed Plaintiff's appeal in Wills I.
On October 4, 2019, Multnomah County Circuit Court Judge Amy Baggio entered a general judgment of restitution “in [that] action to recover possession of the premises” brought by BONY. The court entered the judgment in favor of BONY “for possession of” the property “effective immediately.” RJN, ECF 29, Ex. 3 at 1.
The premises at issue was Plaintiff's property which had been sold to BONY.
On October 16, 2019, BONY obtained a writ of execution of judgment of restitution in Multnomah County Circuit Court. RJN, Ex. 4. On October 31, 2019, a Multnomah County Sheriff's Deputy filed a Sheriff's return of service for the writ of execution of judgment of restitution in Multnomah County Circuit Court noting the deputy had posted the writ and an eviction trespass notice at the property and “removed . . . any . . . person subject to the judgment . . . present from the premises and delivered possession of the premises to” BONY. Id. at 4. Plaintiff, however, did not surrender the premises.
On December 30, 2022, Plaintiff and alleged third-party intervenor WPO International Trust (“WPO”) filed a pro se Complaint in this Court (Wills II) challenging BONY's actions in Multnomah County Circuit Court to possess and recover the property. Plaintiff alleges BONY violated the automatic stay that arose out of Ditech's bankruptcy.
On March 7, 2023, the Court struck intervenor WPO on the basis that non-attorneys may not represent trusts.
Also on December 30, 2022, Plaintiff filed a Motion for Temporary Restraining Order in Wills II seeking to enjoin BONY from “selling, attempting to sell, or causing to be sold the property” and a declaration that “sale of the property to enforce the Mortgage/Deed of Trust/mortgage [sic] is improper.” Pl. Mot. for Temp. Restraining Order, ECF 2, at 10-11.
On December 30, 2022, the Court denied Plaintiff's Motion for Temporary Restraining Order on the basis that Plaintiff was unlikely to succeed on the merits.
On March 14, 2023, Multnomah County Circuit Court Judge Benjamin Johnston granted BONY a writ of execution of judgment of restitution directing the Multnomah County Sheriff to “enter the premises and remove [Plaintiff] and any other individual present on the premises who is subject to the judgment and return possession of the premises to” BONY. RJN Ex. 5 at 1. On April 12, 2023, the Multnomah County Sheriff's Office served Plaintiff with the judgment and forcibly removed Plaintiff from the property, removed Plaintiff's belongings from the property, and changed the locks, returning possession of the property to BONY. RJN, Ex. 6 at 1.
On June 30, 2023, BONY filed a Motion to Dismiss Wills II for failure to state a claim. Plaintiff did not file a response to BONY's Motion, and the Court took the Motion under advisement on July 28, 2023.
DISCUSSION
Plaintiff asserts two claims in her Complaint in Wills II: a claim for violation of 11 U.S.C. § 105 and a claim for violation of 11 U.S.C. § 362(k).
I. Request for Judicial Notice
BONY includes with its Motion to Dismiss a request for judicial notice. To the extent that the Court relied on the documents attached to BONY's request, which consist of court filings and public records, BONY's request is granted because facts in those documents are “not subject to reasonable dispute.” SeeUnited States v. Ritchie, 342 F.3d 903, 908-09 (9th Cir. 2003)(quoting Fed. R. Ev. Rule 201(b)(2)(“Facts are indisputable, and thus subject to judicial notice, only if they are . . . ‘capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned.'”)); K.F. Jacobsen & Co. v. Gaylor, 947 F.Supp.2d 1120, 1122-23 (D. Or. 2013)(citing Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir.2006)(“A court may take judicial notice of complaints and briefs filed in another case to determine what issues were before that court and were actually litigated.”)).
I. Violation of 11 U.S.C. § 105
In her claim for violation of 11 U.S.C. § 105 Plaintiff asserts BONY “willfully violated the automatic stay provision implemented in” Wills I when it obtained a general judgment of restitution and writ of execution of judgment of restitution in Multnomah County Circuit Court. BONY notes, however, that it is not now, nor has it ever been, a party to the Ditech bankruptcy proceeding. In fact, the record reflects the property was sold to BONY over two years after BONY was dismissed from Wills I, six months after Judge Simon dismissed Wills I, and five months before Ditech filed for bankruptcy.
Section 105 provides: “The court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title. No provision of this title providing for the raising of an issue by a party in interest shall be construed to preclude the court from, sua sponte, taking any action or making any determination necessary or appropriate to enforce or implement court orders or rules, or to prevent an abuse of process.”
In addition, as noted, the bankruptcy court dismissed and expunged Plaintiff's claim against Ditech. In re Ditech Holding Corp., 2021 WL 2881489, at *4. The bankruptcy court found Plaintiff's claim was barred by the decision in Wills I and, even if res judicata did not apply to the decision in Wills I, Plaintiff's claim lacked merit. The bankruptcy court explained that although Plaintiff asserted she paid her mortgage in full “by tendering [an] International Promissory Note[,] [t]here is no merit in that contention.” Id., at *9. Specifically, a “promissory note is merely an unconditional written promise to pay. It does not constitute actual payment, much less one made in U.S. currency as required by the Deed of Trust. [Plaintiff] never paid the debt, so the statutory requirements for discharge do not apply.” Id. (citations omitted). In addition, the court noted the deed of trust did not “allow for such form of payment.” Id. The bankruptcy court concluded that “even if the Court accepts [Plaintiff's] allegations of fact as true and construes them in the light most favorable to [Plaintiff,] the allegations presented in the Claim and Response fail to demonstrate any conduct by Ditech that would entitle [Plaintiff] to recovery.” Id., at *10.
The Court concludes on this record that Plaintiff has not established that BONY's actions violated the automatic stay. Accordingly, the Court grants BONY's Motion to Dismiss Plaintiff's claim for violation of 11 U.S.C. § 105.
II. Violation of 11 U.S.C. § 362(k)
Plaintiff also asserts a claim under 11 U.S.C. § 362(k), which provides:
(1) Except as provided in paragraph (2), an individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys' fees, and, in appropriate circumstances, may recover punitive damages.
(2) If such violation is based on an action taken by an entity in the good faith belief that subsection (h) applies to the debtor, the recovery under paragraph (1) of this subsection against such entity shall be limited to actual damages.
Plaintiff alleges BONY willfully violated the automatic stay when it “moved for dismissal in the subject property in Plaintiff's prior federal litigation regarding the subject property.” It is unclear whether Plaintiff intends to allege that BONY violated the automatic stay when it moved to dismiss Plaintiff's claims against it in Wills I, when it was dismissed from Wills I, or when it obtained a general judgment of restitution and writ of execution of judgment of restitution in Multnomah County Circuit Court. In any event, for the same reasons that the Court found Plaintiff has not and cannot state a claim for violation of 11 U.S.C. § 105, the Court also concludes Plaintiff has not and cannot state a claim for violation of 11 U.S.C. § 362(k). Accordingly, the Court grants BONY's Motion to Dismiss this claim.
III. Amendment
Dismissal of a pro se complaint without leave to amend is proper only if it is clear that the deficiencies of the complaint could not be cured by amendment. Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995). Because BONY is not a party to the Ditech bankruptcy proceedings and because the bankruptcy court disallowed and expunged Plaintiff's bankruptcy claim against Ditech, the Court concludes Plaintiff cannot cure the deficiencies in her Complaint by amendment. Accordingly, the Court dismisses Plaintiff's Complaint without leave to amend.
CONCLUSION
For these reasons, the Court GRANTS BONY's Motion to Dismiss, ECF 29, and dismisses Plaintiff's Complaint with prejudice and without leave to amend.
IT IS SO ORDERED.