Tietjen v. Wells Fargo Bank, National Association
2:10-cv-01622
D. Ariz.Feb 3, 2011Background
- Plaintiffs David and Camille Tietjen filed a civil action in Pinal County Superior Court against Wells Fargo Bank N.A., Howard Atkins, and Tiffany & Bosco P.A. July 1, 2010.
- Wells Fargo removed the case to this district court on July 30, 2010, arguing Tiffany & Bosco’s joinder was fraudulent and diversity existed.
- The court found Tiffany & Bosco to be a fraudulent defendant and subject to dismissal for lack of service and to preserve diversity.
- Wells Fargo and Atkins moved to dismiss; plaintiffs did not respond to the motions.
- The court warned that Tiffany & Bosco would be dismissed for lack of service if proof of service was not filed by February 24, 2011.
- The court granted Wells Fargo and Atkins’ motions to dismiss, concluded the complaint failed to state cognizable claims, and did not reach summary judgment on those issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Tiffany & Bosco should be dismissed for lack of service/diversity | Tietjen contends Tiffany & Bosco remains a proper defendant. | Tiffany & Bosco was not properly served and is a fraudulent defendant, destroying diversity. | Tiffany & Bosco to be dismissed absent proof of service by Feb 24, 2011. |
| Whether Wells Fargo and Atkins' motions to dismiss should be granted | Plaintiffs’ claims against Wells Fargo and Atkins survive as to the foreclosure action. | Claims against Wells Fargo and Atkins are improperly pleaded and lack plausible grounds. | Motions to Dismiss granted; complaint dismissed as to Wells Fargo and Atkins. |
| Whether the complaint plausibly states a claim against Wells Fargo or Atkins | Plaintiffs challenge foreclosing entity’s possession and document authenticity. | Arizona non-judicial foreclosure does not require original note possession; claims are unsupported or conclusory. | Complaint dismissed for failure to state a plausible claim against Wells Fargo or Atkins. |
| Whether fraud claims were pled with the required particularity | Plaintiffs allege fraud related to notes/deeds without specifics. | Fraud claims lack the time, place, and content of misrepresentations as required by Rule 9(b). | Fraud claims insufficiently pled; dismissed. |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (claims must be plausible on their face)
- Deissner v. Mortgage Elec. Reg. Sys., 618 F. Supp. 2d 1184 (D. Ariz. 2009) (foreclosure statute does not require presentation of the original note)
- Mansour v. Cal-Western Reconveyance Corp., 618 F. Supp. 2d 1178 (D. Ariz. 2009) (foreclosure claims and possession issues analyzed under Arizona law)
- Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393 (9th Cir. 1986) (fraud allegations must identify time, place, and content of misrepresentations)
- Ghazi v. Moran, 46 F.3d 52 (9th Cir. 1995) (failure to respond to a motion may warrant summary disposition under local rule)
- U.S. v. $22,474 in U.S. Currency, 55 F. Supp. 2d 1007 (D. Ariz. 1999) (local rules may support summary disposition for non-response)
- Pryzbylski v. Stumpf, No. CV-10-8073-PCT-GMS (D. Ariz. 2011) (analyzed as prior authority for pleading and standing)
- Rodriguez v. Summit Lending Solutions, Inc., 2009 WL 1936795 (S.D. Cal. 2009) (claims against note holders and assignment challenges examined)