Case 2:12-cv RSM Document 33 Filed 05/29/13 Page 1 of 5

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1 Case :-cv-00-rsm Document Filed 0// Page of UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 0 0 KEN REALMUTO, v. Plaintiff, FEDERAL HOME LOAN MORTGAGE CORPORATION, as Trustee; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; WELLS FARGO HOME MORTGAGE; and Does -0 inclusive, Defendants. CASE NO. C-0RSM ORDER GRANTING MOTION TO DISMISS Plaintiff Ken Realmuto, appearing pro se, filed this action for quiet title and declaratory and injunctive relief pursuant to the diversity jurisdiction of this Court. U.S.C.. In his First Amended Complaint, filed March, 0, he seeks a declaration that he is the title owner of record of the subject property, free of any liens created by defendants, and that defendants do not have authority to foreclose on the property. He also seeks an injunction against any attempt by defendants to foreclose or engage in any further collection activity. First Amended Complaint, Dkt. #, pp. -. This matter is now before the Court for consideration of defendants motion to dismiss for failure ORDER GRANTING MOTION TO DISMISS-

2 Case :-cv-00-rsm Document Filed 0// Page of to state a claim. Dkt. #. Although plaintiff has filed opposition to the motion the Court shall, for the reasons set forth below, grant defendants motion and dismiss the action. 0 0 DISCUSSION The First Amended Complaint alleges, in relevant part, that Plaintiff Ken Realmuto borrowed $,00 from Eagle Home Mortgage in April of 00, securing the mortgage with a deed of trust on real property in Bothell, Washington. Plaintiff further alleges that the note and deed of trust were subsequently sold and that now defendant Federal Home Loan Mortgage Corporation ( Freddie Mac ) is the Trustee, defendant Mortgage Electronic Registration Systems, Inc., ( MERS ) is the nominal mortgagee, and defendant Wells Fargo is the servicer of the loan. First Amended Complaint, -. He contends that the chain of title is broken, making title insurance impossible so that sale of the home will be difficult without this quiet title action. Id.,. Defendants have moved to dismiss pursuant to Fed.R.Civ.P. (b)() for failure to state a claim. Such dismissal may be based on either the lack of a cognizable legal theory, or the insufficiency of facts alleged under such theory. Balistreri v. Pacifica Police Department, 0 F. d, (th Cir. 0). For the purposes of deciding a motion to dismiss, the Court accepts the factual allegations of the complaint as true, but this deference does not extend to legal conclusions or theories. The Court therefore should separate out pleadings that, because they are not more than conclusions, are not entitled to the assumption of truth. Ashcroft v. Iqbal, U.S., (00). Defendants have moved to dismiss plaintiff s claim for quiet title on the basis that a party is not entitled to maintain such action to remove a deed of trust unless he has first satisfied the secured obligation. Evans v. BAC Home Loan Servicing LP, 00 WL at * (W.D.Wash. 00). In short, a borrower [cannot] assert a quiet title claim against a lender without paying off the debt. Nicdao v. Chase Home Finance, F.Supp. d 0, 0 (D. Alaska 0). Although plaintiff alleges that the NOTE has already been paid off in full by the certificate holders of the mortgage backed securities trust, this is a baseless legal theory that the Court need not accept as true. First Amended Complaint, Dkt. #, (emphasis in original). Nowhere in the First Amended Complaint does plaintiff allege that he has satisfied the obligation of the 00 note by paying it in full. He is ORDER GRANTING MOTION TO DISMISS-

3 Case :-cv-00-rsm Document Filed 0// Page of 0 0 therefore not entitled to maintain an action to quiet title and remove the lien. Defendants have moved to dismiss the request for declaratory and injunctive relief with respect to foreclosure on the basis that the property is not in foreclosure, so plaintiff does not have standing to assert such a claim for relief. Where no foreclosure action is pending, a plaintiff cannot show injury or a justiciable controversy, and does not have standing to enjoin such proceeding in the future. Bisson v. Bank of America, N.A., 0 WL (W.D.Wash. 0). In the event such proceedings are initiated at some time in the future, plaintiff has a remedy under state law under the Washington Deed of Trust Act, RCW..0. This Act is the sole method to contest and enjoin a foreclosure sale. CHD, Inc., v. Boyles, Wash.App., (00). In opposing the motion to dismiss, plaintiff reminds the Court that () for the purposes of a motion to dismiss, the allegations of his complaint must be taken as true, and () his pro se pleadings should be liberally construed. To the extent that the First Amended Complaint states factual allegations, the Court has deemed them true. However, as stated above, where the allegations of the complaint are based on untenable legal conclusions or theories, the Court need not accept them. Plaintiff s complaint is at bottom but an iteration of the show me the note theory which this Court and others have soundly rejected. See, Bavand v. Onewest Bank FSB, 0 WL 0 at * (W.D.Wash. 0) (citing Petree v. Chase Bank, 0 WL 0 at * (W.D.Wash.) (collecting cases). No amount of liberal construction of this type of complaint can cure the defects inherent in the baseless legal theory. Plaintiff also argues that the complaint states a claim for declaratory and injunctive relief under U.S.C.. Plaintiff s Response, Dkt. # 0, p.. However, plaintiff did not plead a claim under in the First Amended Complaint, nor could he. In order to state a claim under U.S.C. l, a complaint must allege that (l) the defendants acted under color of state law, and () their conduct deprived plaintiff of a constitutional right. Section l is the appropriate avenue to remedy an alleged wrong only if both of these elements are present. Haygood v. Younger, F. d l0, l (th Cir. l)(en banc); cert. denied, U.S. 00 (l). No defendant here is a state actor amenable to suit under. Plaintiff has alleged neither that any defendant acted under color of state law, nor that he has been deprived of a constitutional right. These are defects that cannot be cured by amendment. Defendants motion to dismiss (Dkt. # ) is accordingly GRANTED and the complaint and ORDER GRANTING MOTION TO DISMISS-

4 Case :-cv-00-rsm Document Filed 0// Page of action are DISMISSED for failure to state a claim. Plaintiff s pending motion to compel, asking defendants to produce the original wet ink signature promissory note, with allonge and Deed of Trust (Dkt. # ) is STRICKEN as moot. Dated this th day of May 0. ARICARDO S. MARTINEZ UNITED STATES DISTRICT JUDGE 0 0 A copy of the promissory note, signed by plaintiff and by non-party Beata Realmuto, has been provided by defendants. Declaration of Amanda Weatherly, Dkt. #, Exhibit. ORDER GRANTING MOTION TO DISMISS-

5 Case :-cv-00-rsm Document Filed 0// Page of 0 0 ORDER GRANTING MOTION TO DISMISS-

6 Geonanga, Stephen From: Sent: To: Subject: Wednesday, May, 0 : PM ECF@wawd.uscourts.gov Activity in Case :-cv-00-rsm Realmuto v. Eagle Home Mortgage et al Order on Motion to Dismiss for Failure to State a Claim This is an automatic message generated by the CM/ECF system. Please DO NOT RESPOND to this because the mail box is unattended. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. However, if the referenced document is a transcript, the free copy and 0 page limit do not apply. Notice of Electronic Filing U.S. District Court United States District Court for the Western District of Washington The following transaction was entered on //0 at : PM PDT and filed on //0 Case Name: Realmuto v. Eagle Home Mortgage et al Case Number: :-cv-00-rsm Filer: Document Number: Docket Text: ORDER Granting Defendants' [] Motion to Dismiss for Failure to State a Claim by Judge Ricardo S Martinez. (CL) :-cv-00-rsm Notice has been electronically mailed to: John P. Evans john@johnevanslaw.com Ronald E Beard beardr@lanepowell.com, docketing-sea@lanepowell.com, strayerd@lanepowell.com Benjamin J. Roesch roeschb@lanepowell.com, pottert@lanepowell.com Kelly M Turner turnerk@lanepowell.com, campbelld@lanepowell.com, docketing-sea@lanepowell.com :-cv-00-rsm Notice will not be electronically mailed to: Ken Realmuto ST SE BOTHELL, WA 0

7 The following document(s) are associated with this transaction: Document description:main Document Original filename:n/a Electronic document Stamp: [STAMP dcecfstamp_id=0 [Date=//0] [FileNumber=-0 ] [bfe0cefcb000bbabefaa0dcdec abfdbcdabed0afcefdfdadedf00c]]

United States District Court EASTERN DISTRICT OF TEXAS SHERMAN DIVISION

Case 4:11-cv-00417-MHS -ALM Document 13 Filed 10/28/11 Page 1 of 9 PageID #: 249 United States District Court EASTERN DISTRICT OF TEXAS SHERMAN DIVISION ALISE MALIKYAR V. CASE NO. 4:11-CV-417 Judge Schneider/