Ambuehl v. Aegis Wholesale , 555 F. App'x 817 ( 2014 )


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  •                                                           FILED
    United States Court of Appeals
    UNITED STATES COURT OF APPEALS       Tenth Circuit
    FOR THE TENTH CIRCUIT             February 19, 2014
    Elisabeth A. Shumaker
    Clerk of Court
    JOHN AMBUEHL; MARA AMBUEHL,
    a/k/a Maria Ambuehl; OLIVER BIGLER;
    STEPHANIE BIRD; IVY BLECHMAN;
    JEREMY BRUMMETT; PATRICIA
    BYINGTON; ANTHONY CARDON;                      No. 13-4068
    CLARK CURTIS; STACEY CURTIS;           (D.C. No. 2:11-CV-00693-DS)
    COLBY DALLEY; MICHELLE                           (D. Utah)
    DALLEY; RICK DIXON; ERIC
    FONTANA; TAMMY FONTANA;
    MARCO FRANK; JULIE H. GAILEY;
    A. VARNEY GAILEY; JEFFERY
    GLINES; BRIAN GUNNELL; KRIS
    HANSEN; KEITH HARRISON;
    WARREN JONES; DEAN
    JORGENSEN; LOUISE JORGENSEN;
    BRADLEY D. KING; JILLYN P. KING;
    RYAN LARSEN; SANDY LARSEN;
    GREGORY MAGLEBY; TINA
    MAGLEBY; MIKE MERRILL; SHAWN
    MOON; DENISE MONGIE; GARY
    MUNSEN; MARCUS NICOLLS;
    LESTER NIELSON; JANICE NIELSON;
    BENJAMIN PACK; KELLY PACK;
    KEVIN PILON; SHARON PILON;
    JOSH PRAZEN; AARON REDDING;
    ALICIA REDDING; LINDA REID;
    STACY REID; DOUGLAS RICH;
    BRETT ROSIER; SANDRA ROSIER;
    JANIS SALISBURY; JIM SALISBURY;
    LYLE SHENEMAN; BECKY
    SODENKAMP; JANA SMITH; STEVE
    SMITH; DARIN SOUTHAM; MARK
    STILLMAN; RENDY STILLMAN;
    DOUGLAS STODDARD; LINDA
    STODDARD; BARBARA STUART;
    SHAUN SYLVESTER; JULIE
    TAYLOR; TODD TAYLOR; ROBYN
    TISCHNER; TROY TISCHNER;
    STEVEN R. VAUGHN; DEBBRA L.
    VAUGHN; ROBERT VIGESAA;
    LEA VIGESAA; DIANE WARNER;
    BRANDON WATERS; DENEISE
    YOUNG; KENDALL YOUNG;
    HEIDI SHAFTO; RACHEL CARDON;
    HOLLY HYATT; SCOTT HYATT,
    Plaintiffs-Appellants,
    v.
    AEGIS WHOLESALE; AMERICAN
    HOME MORTGAGE ACCEPTANCE;
    BANK ONE; BARCLAYS PLC;
    FRANKLIN AMERICAN MORTGAGE;
    INDYMAC BANK; ING BANK N.V.;
    NET BANK, a federal savings bank;
    JP MORGAN CHASE BANK; M & T
    MORTGAGE; COLUMBIA STATE
    BANK; AMERICA’S WHOLESALE
    LENDER; BANK OF AMERICA N.A.;
    COUNTRYWIDE BANK;
    COUNTRYWIDE BANK FSB;
    COUNTRYWIDE BANK N.A.;
    COUNTRYWIDE HOME LOANS, INC.;
    AURORA BANK, FSB, f/k/a Lehman
    Brothers Bank, FSB; FIRST
    TENNESSEE BANK, as successor to
    First Horizon Home Loans, LP;
    PROVIDENT FUNDING ASSOCIATES,
    L.P.; WELLS FARGO MORTGAGE;
    WELLS FARGO HOME MORTGAGE;
    WELLS FARGO BANK, N.A.; WORLD
    SAVINGS BANK, FSB; ONEWEST
    BANK FSB; GMAC MORTGAGE, LLC;
    HOMECOMINGS FINANCIAL;
    CITIFINANCIAL, INC.;
    CITIMORTGAGE, INC.; ONEMAIN
    FINANCIAL; ARGENT MORTGAGE
    CO., LLC; PNC FINANCIAL
    SERVICES GROUP,
    -2-
    Defendants-Appellees,
    and
    U.S. BANK, N.A.; U.S. BANK
    NATIONAL ASSOCIATION; GMAC
    MORTGAGE, LLC; HOMECOMINGS
    FINANCIAL,
    Defendants.
    ORDER AND JUDGMENT*
    Before LUCERO, McKAY, and HARTZ, Circuit Judges.
    Plaintiffs filed a one-count complaint against numerous financial institutions
    seeking rescission of their home loan agreements based on their alleged unilateral
    mistake. The district court granted all of the Defendants’ motions to dismiss under
    Fed. R. Civ. P. 12(b)(6) for failure to state a claim. Exercising jurisdiction under
    28 U.S.C. § 1291, we affirm.
    Plaintiffs separately signed home mortgage financing agreements with one of
    the named Defendants. They concede “they knew and understood that the originating
    *
    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination of this
    appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
    ordered submitted without oral argument. This order and judgment is not binding
    precedent, except under the doctrines of law of the case, res judicata, and collateral
    estoppel. It may be cited, however, for its persuasive value consistent with
    Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
    -3-
    financial institution could sell, transfer or assign the loan to a new entity.” Aplt.
    Opening Br. at 17; see also Aplt. App. at 79.1 But their complaint alleged they did
    not understand they were entering a “new and different world of high finance” in
    which loans were not serviced by the lender but by loan servicing companies. Aplt.
    App. at 72. Their mistake, they say, is believing they “would always have a
    traditional lender/borrower relationship,” 
    id. at 79,
    and not understanding that a loan
    servicer might not have the same authority or economic incentive to modify the loan
    terms as would the original lender, 
    id. at 82.
    Plaintiffs sought rescission based solely
    on this claimed unilateral “mistake and the missing of the minds by the parties.” 
    Id. at 72.
    Defendants filed Rule 12(b) motions asserting some or all of the following
    defenses: (1) each Plaintiff signed disclosure documents notifying them that their
    loans could be transferred to loan servicers and that the servicers might change;
    (2) Plaintiffs failed to allege the elements of rescission; (3) Plaintiffs lacked standing
    because they did not allege damages; (4) Plaintiffs failed to plead their allegation of
    mistake with particularity, as required by Fed. R. Civ. P. 9(b); (5) Plaintiffs’ claims
    are preempted by the Real Estate Settlement Procedures Act; and (6) claims by many
    1
    Defendants asked the district court to take judicial notice of Plaintiffs’ loan
    documents which all expressly disclosed that the loans could be sold to loan
    servicers. See Berneike v. CitiMortgage, Inc., 
    708 F.3d 1141
    , 1146 (10th Cir. 2013)
    (holding court can take judicial notice of documents when ruling on a Rule 12(b)(6)
    motion if they are referred to in the complaint and are central to the claim). It is
    unclear from the district court’s orders, however, whether the court took judicial
    notice of the loan documents.
    -4-
    of the Plaintiffs are time-barred by Utah Code Ann. § 78B-2-305.2 The district court
    separately granted each of the seventeen motions to dismiss, stating in each it did so
    “for generally the same reasons set forth in the supporting pleadings.” See, e.g.,
    Aplt. App. at 1860 (the first order) and 
    id. at 1997
    (the final order). The district court
    also denied Plaintiffs’ motions to amend the complaint because the motions did not
    comply with local rules and amendments would, in any event, be futile.
    On appeal, Plaintiffs challenge two of the grounds asserted for dismissal,
    namely that they plausibly stated a rescission claim and that they pled mistake with
    sufficient particularity under Rule 9(b). “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) (quoting Bell
    Atl. Corp. v. Twombly, 
    550 U.S. 544
    , 570 (2007)). “Our review of a [Rule] 12(b)(6)
    dismissal is de novo.” Diversey v. Schmidly, 
    738 F.3d 1196
    , 1199 (10th Cir. 2013).
    “We accept the well-pled factual allegations in the complaint as true, resolve all
    reasonable inferences in the plaintiff’s favor, and ask whether it is plausible that the
    2
    In addition to these universal grounds for dismissal, two Defendants
    additionally moved to dismiss on claim preclusion grounds. Defendant PNC Bank,
    N.A. (PNC), moved to dismiss because the only plaintiff alleged to have borrowed
    from PNC had already filed and lost a federal lawsuit raising claims including
    challenges to the transfer of the loan to a loan servicer. Similarly, Defendants Bank
    of America, N.A., Countrywide Bank, FSB, Countrywide Bank, N.A., and
    Countrywide Home Loans, Inc. (collectively, Bank of America), moved to dismiss
    because all of the six Plaintiffs with whom they had entered into loan agreements had
    previously filed claims to rescind the same mortgage loans.
    -5-
    plaintiff is entitled to relief.” 
    Id. (citation omitted
    and internal quotation marks
    omitted).
    Under Utah law, which governs Plaintiffs’ rescission claim, the required
    elements for the equitable relief of rescission based on a unilateral mistake are:
    (1) “[t]he mistake must be of so grave a consequence that to enforce the contract as
    actually made would be unconscionable”; (2) “[t]he matter as to which the mistake
    was made must relate to a material feature of the contract”; (3) “[t]he mistake must
    have occurred notwithstanding the exercise of ordinary diligence by the party making
    the mistake”; and (4) it must be possible to return the other party to status quo. John
    Call Eng’g, Inc. v. Manti City Corp., 
    743 P.2d 1205
    , 1209-10 (Utah 1987).
    Plaintiffs’ complaint contains no factual basis for their alleged belief that the
    loans would not be transferred to a loan servicer. They allege no facts, nor cite any
    provision of the loan documents, that would have led a reasonable person to believe
    he or she was entering into a so-called long-term traditional borrower/lender
    relationship. Further, Plaintiffs fail to allege any facts, or articulate any legal basis,
    suggesting their claimed unilateral misunderstanding states a plausible rescission
    claim under Utah law. The complaint does not allege any facts suggesting the ability
    to modify the agreed-upon loan terms was a material feature of their agreements, or
    is of so grave a consequence as to make it unconscionable to enforce the agreements
    as written. We conclude Plaintiffs have not alleged a plausible claim for rescission
    under Utah law.
    -6-
    Given this conclusion, we need not address Plaintiffs’ Rule 9(b) argument.
    Plaintiffs offer no argument as to why the district court erred in dismissing the
    complaint on any or all of the Defendants’ additional grounds for dismissal, nor do
    they challenge the orders denying their motions to amend their complaint. Thus,
    Plaintiffs failed to preserve any appellate challenge as to any of those grounds for
    dismissal. See Bronson v. Swensen, 
    500 F.3d 1099
    , 1104 (10th Cir. 2007) (“[W]e
    routinely have declined to consider arguments that are not raised, or are inadequately
    presented, in an appellant’s opening brief.”).
    The judgment of the district court is affirmed.
    Entered for the Court
    Monroe G. McKay
    Circuit Judge
    -7-
    

Document Info

Docket Number: 13-4068

Citation Numbers: 555 F. App'x 817

Judges: Lucero, McKay, Hartz

Filed Date: 2/19/2014

Precedential Status: Non-Precedential

Modified Date: 10/19/2024