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Housley v. Wells Fargo Bank, N.A.

United States District Court, D. New Mexico

April 5, 2018

WELLS FARGO BANK, N.A., Defendants.


          MARTHA VÁZQUEZ United St1& District Judge

         THIS MATTER comes before the Court on Defendant's Motion to Dismiss Plaintiff's Complaint [Doc. 8]. The Court, having considered the motion, briefs, and relevant law, and being otherwise fully informed, finds that the motion is well-taken and will be granted.


         In her Complaint, Plaintiff alleges that Defendant is the creditor of a loan “associated with Plaintiff, and associated with a mortgage dated November 18, 1996.” Doc. 1 at ¶ 5. Plaintiff further alleges that on December 4, 2015, Defendant “received a notice of rescission made by Plaintiff pursuant to [the Truth in Lending Act (“TILA”), ] 15 U.S.C. § 1635 rescinding the loan, ” but to date has not complied with its obligations as a lender under the notice of rescission. Id. at ¶¶ 6-7. Based on these allegations, Plaintiff, appearing pro se, filed the instant action seeking both a declaratory judgment (Count I) and statutory relief (Count II). Specifically, Plaintiff alleges that because Defendant failed to comply with the statutory rescission requirements under § 1635, she is entitled to: (1) a declaration that the subject loan, and her obligations thereunder, are “terminated, released, void and invalid;” and (2) twice the monetary value of the note that she issued in connection with the loan. Id. at ¶¶ 17, 23.

         Defendant filed the instant motion to dismiss for failure to state a claim upon which relief can be granted. Plaintiff opposes the motion.


         Under Rule 12(b)(6), a Court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “Although the statute of limitations is an affirmative defense, it may be resolved on a Rule 12(b)(6) motion to dismiss when the dates given in the complaint make clear that the right sued upon has been extinguished.” Cosgrove v. Kan. Dep't of Soc. & Rehab. Servs., 332 Fed.Appx. 463 (10th Cir. 2009) (citation omitted).

         “The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners of the complaint.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). When considering a Rule 12(b)(6) motion, the Court must accept as true all well-pleaded factual allegations in the complaint, view those allegations in the light most favorable to the non-moving party, and draw all reasonable inferences in the plaintiff's favor. Smith v. United States, 561 F.3d 1090, 1097 (10th Cir. 2009), cert. denied, 130 S.Ct. 1142 (2010).

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.'” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)).

         The Court in Iqbal identified “two working principles” in the context of a motion to dismiss. Id. First, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. Accordingly, Rule 8 “does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Id. at 678-79. “Second, only a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 679; see Twombly, 550 U.S. at 570 (holding that a plaintiff must “nudge” her claims “across the line from conceivable to plausible”). Accordingly, “where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not shown - that the pleader is entitled to relief.” Id. (citation omitted).

In keeping with these two principles, the Court explained, a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.”

Id. at 679.


         Defendant moves to dismiss the instant action on various grounds. Defendant first argues that Plaintiff's claims are barred by res judicata, as she could have raised them in her earlier, state court action against Defendant, in which she raised other issues regarding the subject loan. Defendant further argues that Plaintiff's claims are untimely under the three-year limitation set forth in § 1635. Finally, Defendant argues that Plaintiff's claims are improper because her loan was a residential one and thus exempt from the rescission provisions of § 1635, and because she has failed to plead allegations that, if proven, would demonstrate that she is willing and able to return the loan. The Court agrees ...

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