In re Williams

          MEMORANDUM DECISION GRANTING MOTION TO DISMISS, WITHOUT PREJUDICE

          ARTHUR S. WEISSBRODT, Bankruptcy Judge.

         This matter comes before the Court on a Motion to Dismiss Adversary Complaint filed by Defendant OneWest Bank, named in the complaint as Defendant OneWest Bank/Indymac Bank (hereafter "Defendant"), represented by attorney Kim Bui. Plaintiff Bruce Williams (hereafter "Plaintiff"), who commenced this action pro se but is now represented by attorney Lyle Johnson, opposes the motion. The Court has considered all of the parties' papers with regard to the instant motion and finds that there is no need for oral argument. For the following reasons, the Court grants the motion to dismiss, without prejudice, and will give Plaintiff an opportunity to file an amended complaint now that Plaintiff has the benefit of legal counsel.

         In this adversary proceeding; which Plaintiff commenced on November 30, 2011, Plaintiff's claims are premised upon an anticipated trustee sale of real property located at 1899 Concourse Drive in San Jose, CA. In addition to claiming a violation of the automatic stay and alleging violations of the Truth in Lending Act and the Real Estate Settlement and Procedures Act (hereafter "RESPA"), Plaintiff also asserts numerous claims under state law for fraud, quiet title, reformation, and violation of various California statutes. Plaintiff seeks monetary, declaratory, and injunctive relief.

         The motion to dismiss is premised upon several different rules of civil procedure. Defendant contends that the complaint fails to comply with Fed. R. Bankr. P. 7008 and Fed.R.Civ.P. 8(a)'s requirement that the statement of claims be short and plain. Invoking Fed. R. Bankr. P. 7012 and Fed.R.Civ.P. 12(b)(1), Defendant contends that Plaintiff lacks standing to assert claims, because Plaintiff was not the borrower on the loan for real property located at 209 North Winchester Blvd, Santa Clara, CA - a property which is also mentioned in the complaint. As for the fraud claims, Defendant asserts that Plaintiff did not plead fraud with the particularity required by Fed. R. Bankr. P. 7009 and Fed.R.Civ.P. 9(b). With regard to any RESPA claim, Defendant moves for dismissal on the grounds that Plaintiff has failed to state a claim for relief under Fed. R. Bankr. P. 7012 and Fed.R.Civ.P. 12(b) (6). Defendant further contends that Plaintiff cannot seek to set aside the nonjudicial foreclosure without tendering loan proceeds, and that the sale did not violate the automatic stay because the bankruptcy court granted in rem relief before the sale. Defendant also makes other arguments for dismissal of the state statutory claims which appear to fall under Rule 12(b)(6).

         In Plaintiff's opposition, Plaintiff contends that because the complaint was filed pro se, the complaint should be held to less stringent pleading standards and all allegations in the complaint should be liberally construed. Plaintiff contends that, now that Plaintiff has counsel, if there are any deficiencies with the complaint, Plaintiff should be given an opportunity to amend. Plaintiff also argues that Plaintiff has standing to challenge the foreclosure because Plaintiff had an ownership interest in the property. Further, Plaintiff contends that the complaint complies with Rule 8(a), and Plaintiff - as a pro per litigant - did the best Plaintiff could to pinpoint all issues, allegations, and injuries. Plaintiff also argues, in general terms, that fraud was alleged with the requisite particularity, and that Plaintiff has adequately pled the remaining claims.

         In reply, Defendant requests dismissal with prejudice on the basis that the response fails to adequately address the points raised in the motion to dismiss, and Plaintiff can assert no legally supportable theories in an amended complaint. Defendant also appears to contend that the Court should not consider Plaintiff's late-filed opposition, because Plaintiff or Plaintiff's attorney had sufficient notice of the motion in order to prepare a timely opposition.

         The Court will grant the motion to dismiss, without prejudice, but finds it unnecessary to reach all of the arguments raised in the motion. First, as Defendant contends, the complaint does not comport with Fed.R.Civ.P. 8(a). Rule 8(a) provides that a pleading which states a claim for relief must contain a short and plain statement of the claim showing that the pleader is entitled to relief. In Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555-56 (2007), the Supreme Court explained that a short and plain statement of the claim is necessary "in order to give the defendant fair notice of what the... claim is and the grounds upon which it rests [.]"

         The complaint does not comply with rule 8(a) in several respects. First, it is wholly unclear to the Court which piece of real property is at issue in this case. This confusion is evident given that the motion to dismiss and the request for judicial notice accompanying the motion pertain entirely to real property located at 209 North Winchester Blvd, Santa Clara, CA, which is mentioned in the complaint on page 10. However, page 1 of the complaint states that Plaintiff seeks to stop a trustee sale of property located at 1899 Concourse Drive in San Jose, CA. Plaintiff alleges: "Comes now Plaintiff, filed the chapter 13 (Case No. 11-57848) to stop the trustee sale' (of 1899 Concourse Drive, San Jose, CA 95131 (Subject Property')." There are repeated references in the complaint to the "subject property, " but because of the reference on page 10 to the North Winchester property, it remains unclear which property is really at issue in the litigation.

         The complaint - at 61 pages - is also needlessly long. Rule 8 does not impose a limit on the length of a complaint, and verbosity, alone, is not a basis for dismissing a complaint. See Cafasso, U.S. ex rel. v. General Dynamics C4 Systems, Inc. , 637 F.3d 1047, 1058 (9th Cir. 2011). However, a complaint that is "argumentative, prolix, replete with redundancy, and largely irrelevant" can be dismissed for failure to comport with the "short and plain" pleading requirements of Rule 8. Id . (Citations omitted). Part of the rationale for dismissing a needlessly long and confusing complaint is that courts "are busy enough without having to penetrate a tome approaching the magnitude of war and peace to discern a plaintiff's claims and allegations." Id . Another reason is that such a complaint can be prejudicial to a defendant by making it difficult to admit or deny allegations and to determine what claims are being litigated. Id . The Ninth Circuit has stated on many occasions that clear and concise averments are necessary to let a defendant know exactly on what grounds the defendant is being sued. McHenry v. Renne , 84 F.3d 1172, 1178 (9th Cir. 1996).

         That said, there is no magic number of pages which renders a complaint needlessly long. Courts have dismissed 23-page complaints, see Nevijel v. North Coast Life Ins. Co. , 651 F.2d 671 (9th Cir. 1981), to 70-plus-page complaints, see Hatch v. Reliance Ins. Co. , 758 F.2d 409, 415 (9th Cir. 1985), to 733-page complaints, see Cafasso , 637 F.3d at 1052-53. In doing so, courts consider the prolix and confusing nature of the complaints and whether the complaints contain legal arguments rather than factual allegations. For instance, in Wyoming v. United States , 279 F.3d 1214, 1222 n.7 (10th Cir. 2002), the Tenth Circuit Court of Appeals observed that the complaint ran afoul of Rule 8(a) because it contained "excessive legal argument and conclusions interspersed with factual allegations, jurisdictional claims, and citations to authority."

         There are numerous paragraphs in the complaint devoted to legal argument. The law is obviously relevant and should be briefed in the context of a motion to dismiss or for summary judgment, but a detailed recitation of the applicable law - especially to the degree present in the complaint - is not appropriate.

         In addition to the problems with the complaint under Rule 8, regardless of which property is at issue, Plaintiff cannot claim a violation of the automatic stay with regard to any nonjudicial foreclosure of either property mentioned in the complaint. In Plaintiff's main bankruptcy case (Case No. 11-57848-ASW), on March 23, 2012, and on a motion filed by creditor East West Bank, the Court granted in rem relief from the automatic stay with regard to the property located at 1899 Concourse Drive in San Jose, CA. The Court terminated the automatic stay for this property not only for East West Bank, but also with regard to any assignees or successors-in-interest of East West Bank. The written order granting in rem relief was issued April 7, 2012, but nonjudicial foreclosure of the Concourse Drive property after March 23, 2012, could not violate the automatic stay.

         As for the property located at 209 North Winchester, the Court takes judicial notice of an Order issued in the bankruptcy case of Leon Duette, Case No. 11-52721-ASW, granting in rem relief from stay for the North Winchester property effective July 12, 2011, in a written order issued August 1, 2011. Thus, nonjudicial foreclosure of the North Winchester property after the Court granted in rem relief from stay could not violate the automatic stay.

         To the extent Plaintiff asserts claims of fraud, Plaintiff did not particularly plead such claims. When claims of fraud are asserted, a plaintiff's burden of pleading facts is heightened. Not only must a plaintiff's complaint comport with Rule 8(a), but under Fed. R. Bankr. P. 7009, which incorporates Fed.R.Civ.P. 9 and, most significantly, Rule 9(b), "the circumstances constituting fraud" must be pled with particularity. Under Rule 9(b), allegations of fraud must be "specific enough to give defendants notice of the particular misconduct... so that they can defend against the charge and not just deny that they have done anything wrong[.]" Kearns v. Ford Motor Co. , 567 F.3d 1120, 1124 (9th Cir. 2009) (cites and quotes omitted). Pleading fraud with particularity requires pleading "the who, what, when, where, and how" of the alleged fraudulent acts. Id.

         Plaintiff makes sweeping assertions of fraud in the complaint, but offers no specifics. Plaintiff alleges no particular dates on which particular people engaged in particular acts constituting fraud, and mentions none in opposition to the motion. Such factual allegations are required in order to properly plead a claim of fraud.

         Therefore, the Court grants the motion to dismiss, but does so without prejudice. The Court appreciates that Plaintiff filed the original complaint pro se, and Plaintiff subsequently found an attorney to represent Plaintiff in this matter. Therefore, Plaintiff shall have the option of preparing a new, more concise pleading. Plaintiff shall have 45 days from the date of this Order to file an amended complaint. The hearing set for July 3, 2012 at 2:15 p.m. is vacated.

         IT IS SO ORDERED.