Coleman v. PNC Bank, N.A., No. 2:25-CV-00791-ART-DJA (Nov. 5, 2025)

Case details
Full caption
Coleman & Lewis v. PNC Bank, N.A.
Country
United States
Jurisdiction
Nevada (NV)
Court
Nevada Supreme Court
Decided
Nov. 5, 2025
Disposition
Dismissed
Majority
Anne R. Traum (J.) (unanimous Court)
PLUYD COLEMAN and SAHAR LEWIS, individually, Plaintiffs, v...., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.12025 WL 3101996Only the Westlaw citation is currently available.United States District Court, D. Nevada.PLUYD COLEMAN and SAHARLEWIS, individually, Plaintiffs,v.PNC BANK, N.A., Defendant.Case No. 2:25-CV-00791-ART-DJA|Filed 11/05/2025Editor's Note: This decision contains discussion of citationreferences that are incorrect or do not actually exist. Theseinvalid citations appeared in the original court opinion andhave been preserved as written since they are part of theofficial record. Any links to these invalid citations have beenremoved.Attorneys and Law FirmsPluyd Coleman, Pro Se.Sahar Lewis, Henderson, NV, Pro Se.David T. Blake, Wolfe & Wyman LLP, Las Vegas, NV, forDefendant.ORDER ON DEFENDANT'S MOTIONTO DISMISS AND RELATED MOTIONSANNE R. TRAUM UNITED STATES DISTRICT JUDGE*1 Plaintiffs Sahar Lewis and Pluyd Coleman bringthis action against Defendant PNC Bank, challenging theforeclosure and nonjudicial foreclosure sale of propertyowned by the Coleman Family Revocable Living Trust(“Trust”).1 (ECF No. 27.) Plaintiffs first filed this actionin the Eighth Judicial District Court, State of Nevada, andDefendant removed the case to federal court. (ECF No. 1.)Plaintiffs filed several motions for preliminary relief. (ECFNos. 4, 5, 7, 10, 11, 12, 13, 14, 15.) The Court issued anorder finding that the Trust could not proceed in this actionrepresented by a non-lawyer and gave Plaintiffs thirty daysto find legal counsel and enter an appearance. (ECF No. 19.)Plaintiffs filed an amended complaint in which they assertclaims as individuals, and not on behalf of the Trust, as wellas a renewed motion for a temporary restraining order. (ECFNos. 27, 28.) The Court held a hearing on June 12, 2025,on Plaintiffs’ emergency motions, and ordered that Plaintiffs’emergency motion was denied, as were their subsequentrelated motions. (ECF No. 45.)Since then, Plaintiffs have filed a motion to compel initialdisclosures (ECF No. 52), motion for verified demand inequity (ECF No. 60), and motion for injunctive relief ex parte(ECF No. 65) that have all been denied.Still outstanding are Plaintiffs’ motion for clarification (ECFNo. 50), motion to shorten time for hearing on injunctiverelief (ECF No. 69), motion for temporary restraining order(ECF Nos. 70, 71), and motion to reconsider (ECF No. 75).The Defendant filed its motion to dismiss on June 4,2025. (ECF Nos. 36.) Plaintiffs responded. (ECF No. 41.)Defendant replied. (ECF No. 44). Being fully briefed, theCourt grants the motion to dismiss and denies Plaintiffs’outstanding motions as moot.I. Factual BackgroundPlaintiff Sahar Lewis acquired the subject property locatedat 3139 Belvedere Dr., Henderson, Nevada, in December2021. (ECF No. 29-1.) That same month, Ms. Lewis acquireda home loan from North American Financial Corporation,secured with a deed of trust. (ECF No. 29-2.) In 2023, Ms.Lewis transferred the property via quitclaim deed to theColeman Family Revocable Living Trust, of which she andher husband Pluyd Coleman are trustees. (ECF No. 29-5.)In June 2024, the deed of trust was assigned to PNC Bank.(ECF No. 29-3.) At oral argument, Ms. Lewis stated thatshe stopped making monthly mortgage payments sometimebefore April 2024. (ECF No. 45 at 4.) In November of 2024,a Notice of Breach and Default on the loan was sent to Ms.Lewis, which was recorded on December 2, 2024. (ECF No.29-6.) Sometime around March 3, 2025, Ms. Lewis sent whatshe refers to as a “negotiable instrument” to PNC Bank, whichPlaintiffs allege discharged their debt. (ECF No. 27 at 2.)Plaintiffs subsequently brought this lawsuit in state court, andthe Defendants removed the case to this Court. (ECF No. 1.)On May 9, 2025, a nonjudicial foreclosure sale occurred andtitle was transferred on May 16, 2025. (ECF No. 27 at 2.)*2 Plaintiffs’ amended complaint brings claims for breachof contract, securities fraud, wrongful foreclosure, and a claimto quiet title. (ECF No. 27.) The Court notes that Plaintiffsattempted to revise their First Amended Complaint via a
PLUYD COLEMAN and SAHAR LEWIS, individually, Plaintiffs, v...., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.2Motion for Clarification (ECF No. 50) and Affidavit re: FirstAmended Complaint (ECF No. 85), arguing new theoriesof lack of assignment, lack of standing, and securitizationthat were not pled or argued. The Court only considers thoseclaims and arguments in Plaintiffs’ First Amended Complaintand related filings. Fed R. Civ. P. 15; LR 7-2(g).II. Legal StandardA court may dismiss a complaint for “failure to state a claimupon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).A properly pled complaint must provide “a short and plainstatement of the claim showing that the pleader is entitled torelief.” Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. Twombly,550 U.S. 544, 555 (2007). While Rule 8 does not requiredetailed factual allegations, it demands more than “labels andconclusions” or a “formulaic recitation of the elements of acause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(citing Twombly, 550 U.S. at 555). “Factual allegations mustbe enough to rise above the speculative level.” Twombly, 550U.S. at 555. Thus, to survive a motion to dismiss, a complaintmust contain sufficient factual matter to “state a claim torelief that is plausible on its face.” Iqbal, 556 U.S. at 678(quoting Twombly, 550 U.S. at 570). Under this standard,a district court must accept as true all well-pleaded factualallegations in the complaint and determine whether thosefactual allegations state a plausible claim for relief. Id. at678-79. Although allegations of a pro se complaint are heldto less stringent standards than formal pleadings drafted bylawyers, Haines v. Kerner, 404 U.S. 519 (1972), sweepingconclusory allegations do not suffice. Leer v. Murphy, 844F.2d 628, 634 (9th Cir. 1988).When considering a motion to dismiss, a court typicallydoes not look beyond the complaint to avoid converting themotion to dismiss into a motion for summary judgment.Khoja v. Orexigon Therapeutics, Inc., 899 F.3d 988, 998 (9thCir 2018). Notwithstanding, a court may take judicial noticeof (1) material which is included as part of the complaintor relied upon by the complaint, and (2) matters in thepublic record. Marder v. Lopez, 450 F.3d 445, 448 (9th Cir.2006). A court may also take judicial notice of materialpursuant to Federal Rule of Evidence 201(b), which permitsjudicial notice of facts “not subject to reasonable disputebecause it: (1) is generally known within the trial court'sterritorial jurisdiction; or (2) can be accurately and readilydetermined from sources whose accuracy cannot reasonablybe questioned.” Fed. R. Civ. P. 201(b). A court “must takejudicial notice if a party requests it and the court is suppliedwith the necessary information.” Fed. R. Civ. P. Rule 201(c)(2).If a motion to dismiss is granted, leave to amend should begiven “freely” “when justice so requires,” and in the absenceof a reason such as “repeated failure to cure deficienciesby amendments previous allowed, undue prejudice to theopposing party by virtue of allowance of the amendment,futility of the amendment, etc.” Fed. R. Civ. P. 15(a); Fomanv. Davis, 371 U.S. 178, 182 (1962). Generally, leave to amendis denied when it is clear that the deficiencies of the complaintcannot be cured by amendment. See DeSoto v. Yellow FreightSys., Inc., 957 F.2d 655, 658 (9th Cir. 1992).III. Analysis*3 Defendant argues that Plaintiffs lack standing to bringtheir claims and failed to offer sufficient facts to state a claim.Plaintiffs argue that they lawfully discharged the allegeddebt “using valid commercial instruments.” Critically, theCourt notes that Plaintiffs repeatedly used inaccurate or AI-hallucinated legal citations in their briefing. In their responseto the motion to dismiss, Plaintiffs cite non-existent quotesfrom each of the four different cases that they cite: Medranov. Flagstar Bank, 704 F.3d 661 (9th Cir. 2012), Guerra v. JustMortgage, Inc., 2013 WL 1561114 (D. Nev. Apr. 12, 2013),Collins v. Union Fed. Sav. & Loan Ass'n, 99 Nev. 284, 304(1983), and Chapman v. Deutsche Bank Nat'l Trust Co., 129Nev. 314 (2013). In their “Motion for Clarification,” (ECFNo. 50) Plaintiffs fabricated an entire case: Estate of Bowlesv. Comm'r, 608 F. Appx. 693 (9th Cir 2015) in fact cites toUnited States v. Martinez, 608 Fed. Appx. 692, 693 (10th Cir.2015).The Court warns Plaintiffs that should any subsequent filingcontain similar issues, they may be sanctioned, and costs andfees may be imposed.a. StandingDefendant argues that despite being named individually,Plaintiffs are still attempting to represent the Trust withoutlicensed counsel, a violation of NRS 7.28. (ECF No. 36 at6.) Defendant also argues that Mr. Coleman lacks standing toraise claims because he is neither the borrower on the loannor owner of the property. (Id.) Plaintiffs do not counter thesearguments in their response. (ECF No. 41.)A trust must be represented by a licensed attorney in Nevadastate courts and federal court. Guerin v. Guerin, 116 Nev. 210,
PLUYD COLEMAN and SAHAR LEWIS, individually, Plaintiffs, v...., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.3214 (2000); Salman v. Newell, 110 Nev. 1333, 1335 (1994)(holding that the trustee could not represent the trust as anon-attorney, nor could the trust proceed in proper person);C.E. Pope Equity Tr. v. United States, 818 F.2d 696, 698(9th Cir. 1987). Courts have interpreted the Ninth Circuit'sdecision in CE Pope Equity Trust as permitting a trusteeto represent a trust pro se in federal court only where thetrustee demonstrates that she is the sole “beneficial owner”of the trust's claims. Sundby v. San Diego Cnty Sheriff'sDept., No. 3:24-cv-1535-WQH-MSB, 2025 WL 1557323,*4 (citing Simon v. Hartford Life, Inc., 546 F.3d 661, 664(9th Cir. 2008)). Whether an individual is the “beneficialowner” of a trust depends on whether the individual has“rights of ownership to the trust assets, res, or corpus.” Wills v.Bank of New York Mellon, No. 3:22-cv-02005-HZ, 2023 WL4146107, at *2 (D. Or. Jun. 22, 2023). Settlors of a revocableliving trust are the beneficial owners. Amonette v. IndyMacBank, F.S.B., 515 F.Supp.2d 1176, 1185 (D. Haw. 2007).The Court takes judicial notice of the fact that Plaintiffs’property is held by the Coleman Family Revocable LivingTrust (“the Trust”). (ECF No. 37, Ex. 5; ECF No. 7.) PlaintiffSahar Lewis is the grantor and trustee of the Trust. (ECF No.36-5 at 4, 7.) Because Plaintiffs are the settlors of the Trust,they are the sole beneficial owners of the trust res and can suefor the Trust's claims.b. Failure to State a ClaimDefendant argues that Plaintiffs fail to state a claim becausetheir amended complaint provides no detail regarding thetiming, amount, or nature of an alleged payment satisfyingtheir mortgage debt, offer no factual basis to support theconclusion that the Defendant's actions were unlawful. (ECFNo. 36 at 2.) Plaintiffs claim that they “tendered a dischargepackage including a negotiable instrument, USPS proof ofservice, and a Qualified Written Request” to PNC, and that itwas wrongfully rejected. (ECF No. 41.)i. Breach of Contract*4 Defendant argues that Plaintiffs’ allegations for breachof contract are based on an impermissibly vague andunsupported allegation of tender that cannot support a claimfor accord and satisfaction or full payoff. (ECF No. 36at 9-10.) Plaintiffs do not directly address their breach ofcontract claim in their response. (ECF No. 41.)In order to state a claim for breach of contract, Plaintiffs mustallege (1) formation of a valid contract; (2) performance orexcuse of performance by the plaintiffs; (3) material breach bythe defendant; and (4) damages. Padilla Const. Co. of Nevadav. Big-D Const. Corp., 132 Nev. 1014, *1 (citing Laguerre v.Nevada System of Higher Educ., 837 F.Supp.2d 1176, 1180(D. Nev. 2011)). To state a claim for accord and satisfactionof a contract, Plaintiffs must allege (1) a bona fide disputeover an unliquidated amount; (2) a payment tendered in fullsettlement of the entire dispute; and (3) an understanding bythe creditor of the transaction as such, and acceptance of thepayment. Pierce Lathing Co. v. ISEC, Inc., 114 Nev. 291, 298(1998); Thurmond v. United Wholesale Mortgage, LLC, No.2:24-cv-01018-GMN-EJY, 2025 WL 89609 at *2 (D. Nev.Jan. 13, 2025).Plaintiffs did not respond to any of Defendant's argumentson breach of contract and have not provided any informationabout what the “negotiable instrument” that they allegedlyprovide entails. (ECF No. 41.) At the hearing for theiremergency motion, Plaintiffs confirmed that the last monthlymortgage payment to Defendant occurred before April 2024.(ECF No. 45 at 4.) Plaintiffs failed to allege or provide anyevidence that they actually tendered payment to Defendantfor the full balance of their mortgage to discharge theirobligations. Their statements that they tendered a dischargepackage are conclusory and lack sufficient factual matterto state a claim. Plaintiffs also do not make any specificallegations about an alleged dispute and agreement that wouldsatisfy the standards for accord and satisfaction.Because Plaintiffs’ pleading fails to meet the standard forperformance under a Nevada state breach of contract claimand an agreement and payment tendered in settlement of adispute under accord and satisfaction, the Court dismissesthese claims.ii. Securities FraudDefendant argues that Plaintiffs’ claim for securities fraudis legally baseless because the statutes that Plaintiffs relyon are inapplicable to their claims. (ECF No. 36 at 10.)Plaintiffs counter that the complaint “alleges the loan wassecuritized without proper disclosure or trust assignment,resulting in material misrepresentations and omissions inviolation of the Securities Act ...” and is “sufficient to survivedismissal.” (ECF No. 41 at 2.)Plaintiffs appear to allege securities fraud claims under 15U.S.C. §§ 77q and 78j and NRS Chapter 90. Because thereis no private right of action under 15 U.S.C. § 77(q),In re Washington Public Power Supply System Securities
PLUYD COLEMAN and SAHAR LEWIS, individually, Plaintiffs, v...., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.4Litigation, 823 F.2d 1349, 1355 (9th Cir. 1987), Plaintiffs’claim under this theory is dismissed.To recover damage for violations of section 10(b) of theSecurities Exchange Act of 1934, 15 U.S.C. § 78(j), a plaintiffmust prove (1) a material misrepresentation or omission bythe defendant; (2) scienter; (3) a connection between themisrepresentation or omission and the purchase or sale of asecurity; (4) reliance upon the misrepresentation or omission;(5) economic loss; and (6) loss causation. Halliburton Co.v. Erica P. John Fund, Inc., 573 U.S. 258 (2014). To showa material misrepresentation the plaintiff must “specify eachstatement alleged to have been misleading [and] the reasonor reasons why the statement is misleading.” 15 U.S.C. §78(u)-4(b)(1). To show scienter, a plaintiff must “state withparticularity facts giving rise to a strong inference that thedefendant acted with the required state of mind.” 15 U.S.C.§ 78(u)-4(b)(2)(A).*5 Though Plaintiffs do not state which section of NRSChapter 90 they are suing under, they appear to be claimingthat Defendant made “an untrue statement of material factor omit to state a material fact necessary in order to makestatements made not misleading” in connection with the“offer to sell, sale, offer to purchase or purchase of a security”under NRS § 90.570. (See ECF No. 27 at 3 (“PNC knowinglyconcealed material facts”); ECF No. 41 (“loan was securitizedwithout proper disclosure or trust assignment resulting inmaterial misrepresentations and omissions in violation ofSecurities Act” (emphasis added)).) Contrary to Defendant'smotion, under NRS § 90.660, “a person who offers orsells a security in violation of ... subsection 2 of NRS §90.570 ... is liable to the person purchasing the security,”and therefore, a private right of action is available under thestatute. McDonald v. Palacios, 710 Fed.Appx. 318, 319 (9thCir. 2018).Both of these securities fraud claims require a connectionbetween the misrepresentation or omission and the purchaseor sale of a security. Tai-Si Kim v. Kearney, 838 F.Supp.2d1077, 1095 (D. Nev. 2012). A note secured by a mortgage ona home is not a security. SEC v. Wallenbrock, 313 F.3d 532,536 n.3 (9th Cir. 2002) (judicially-crafted list of exceptionsto security instruments include promissory notes secured bya mortgage on a home); Corales v. Flagstar Bank, FSB,822 F.Supp.2d 1102, 1112 (W.D. Wash. 2011) (citing Revesv. Ernst & Young, 494 U.S. 56, 65 (1990)) (plaintiff's notesecured by a deed of trust on their home is not properly viewedas a security, and is therefore not subject to the Securities Actof 1933 or Exchange Act of 1934); State v. Friend, 118 Nev.115, 121 (Nev. 2002) (a note secured by a mortgage on a homeis not a security). Because a deed of trust is not a security,Plaintiffs do not have a viable claim under either federal orstate securities fraud statutes.Even if the deed of trust was a security, Plaintiffs have notmet the heightened pleading standard required under Nevadanor Federal Rules of Civil Procedure 9(b). See. Nev. R. Civ.P. 9(b); Fed. R. Civ. P. 9(b). “The circumstances that mustbe detailed include averments to the time, the place, theidentity of the parties involved, and the nature of the fraud....”Brown v. Kellar, 97 Nev. 582, 583–84 (1981); Oregon PublicEmployees Retirement Fund v. Apollo Group Inc., 774 F.3d598, 605 (9th Cir. 2014) (applying heightened standard tosecurities fraud claims).Plaintiffs allege that Defendants “knowingly concealedmaterial facts about the securitization and dishonor ofPlaintiffs’ negotiable instrument,” “misrepresented theownership and transfer status of the debt,” “used deceptivemeans in violation of federal and state securities laws.” (ECFNo. 27.) In their response, they claim that the “loan wassecuritized without proper disclosure or trust assignment,resulting in material misrepresentations and omissions inviolation of the Securities Act.” (ECF No. 41 at 2.)Plaintiffs neither state how the alleged misrepresentationswere misleading, nor that the Defendant had the requiredstate of mind to establish scienter. They also do not pleadwith particularity how they relied on the misrepresentation oromission to their detriment. Therefore, Plaintiffs’ claims forsecurities fraud under state and federal law are dismissed withprejudice, as their deed of trust is not a qualifying security,and amendment would be futile.iii. Wrongful ForeclosureDefendant argues that Plaintiffs failed to state sufficientfacts to meet each of the required elements of a wrongfulforeclosure claim. (ECF No. 36 at 10.) Plaintiffs arguethat the foreclosure was wrongful because they dischargedtheir obligations and PNC foreclosed without proper legalauthority or producing evidence of default. (ECF No. 41 at 2.)In their operative complaint, however, Plaintiffs only argueone theory of foreclosure: that they “tendered payment infull and initiated dispute procedures under federal law, whichPNC failed to honor.” (ECF No. 27.)*6 To state a claim for wrongful foreclosure, Plaintiffs mustallege that no breach of condition of the deed of trust existed
PLUYD COLEMAN and SAHAR LEWIS, individually, Plaintiffs, v...., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.5at the time the power of sale was exercised, or that theforeclosing party otherwise had no legal right to foreclose.Collins v. Union Fed. Sav. & Loan Ass'n, 662 P.2d 610, 623(Nev. 1983). The “material issue” of a wrongful foreclosureclaim is whether the mortgagor was in default at the timeof foreclosure. Id. It is Plaintiffs’ burden to prove that theforeclosure was against state law. Wensley v. First Nat. Bankof Nevada, 874 F.Supp.2d 957, 965 (D. Nev. 2012).Plaintiff's statements that the “debt was satisfied, PNC hadno authority to foreclose, and Plaintiffs notified all partiesof the discharge” are conclusory and lack legal authority.(ECF No. 27.) This is a “mere recitation” of the elements ofwrongful foreclosure, without specific facts. Iqbal, 556 U.S.at 678. Plaintiffs have failed to allege a necessary element ofwrongful foreclosure, namely, that they were not in default atthe time of foreclosure. Rather, Plaintiffs have acknowledgedto this Court that they stopped paying their mortgage beforeApril 2024 and have paid nothing since. (See ECF No. 45 at 4(order finding that Plaintiffs’ last monthly mortgage paymentto Defendant occurred before April 2024, and they have notdischarged their obligations).)In their later claim for quiet title, Plaintiffs allege thatthe foreclosure process was also “defective due to lack ofstanding, tender denial, and active litigation.” Construing apro se litigant's complaint liberally, the Court will considerarguments that Defendant lacked the legal authority toforeclose.Plaintiffs are not more successful under this theory. To enforcethe obligation of a deed of trust by nonjudicial foreclosureand sale under Nevada state law, “the deed and the notemust be held together” at the time of foreclosure, the trusteemust give notice by recording a notice of default and electionto sell and serve the grantor with a copy of that notice,along with an election-of-mediation form, and after at leastthree months have passed from the recording of the noticeof default, the trustee must give notice of the sale. NRS §107.080-086; Edelstein v. Bank of N.Y. Mellon, 128 Nev. 505,513-14 (2012). Separation of the note from the deed is “notirreparable or fatal” so long as both documents are “ultimatelyheld by the same party” at the time of foreclosure. Id. at 520.Beyond stating that Defendant lacked standing, Plaintiffs donot provide any additional evidence that Defendants failedto meet any of the statutory requirements for a nonjudicialforeclosure in support of their claim. Therefore, Plaintiffs’claim for wrongful disclosure is dismissed.iv. Quiet TitleDefendant argues that Plaintiffs cannot state a claim forquiet title because it rests entirely on a successful claimfor wrongful foreclosure, and regardless, the buyer at theforeclosure sale would now be the party with claim to title.(ECF No. 36 at 12.) Plaintiffs do not offer any oppositionto this argument, merely restating that the foreclosure wasunlawful and the debt discharged. (ECF No. 41 at 2.)To state a claim for quiet title, Plaintiffs must allege a presentadverse claim to title. NRS § 40.010; Chapman v. DeutscheBank Nat'l Trust Co., 129 Nev. 314, 318 (Nev. 2013). “Aplaintiff's right to relief therefore depends on superiority oftitle.” Id. at 319.Plaintiffs have failed to state with particularity any facts thatdemonstrate that they have superior title over Defendant.Therefore, the claim is dismissed.v. RESPA*7 Defendants argue that Plaintiffs’ references to the RealEstate Settlement Procedures Act (“RESPA”), including thatit failed to respond to a Qualified Written Request (“QWR”)are unsuccessful first, because Plaintiffs did not argue aseparate cause of action under the statute in their operativecomplaint, and second, because they fail to state sufficientfacts to meet the elements. (ECF No. 36 at 13.) Plaintiffsclaim that they made a QWR that identified servicing issuesand sought documentation verifying the debt. (ECF No. 41at 1.) The Court notes that Plaintiffs did not formally makea RESPA claim in the operative complaint, which mentionsthe statute and an alleged QWR. (ECF No. 27.) Construingthe filings of pro se litigants liberally, the Court considersPlaintiffs’ RESPA claim.RESPA places duties and restrictions on mortgage lenders,services, and other entities that deal with residentialmortgages. Section 2605 of the statute requires lenders torespond to certain inquiries (qualified written requests) fromthe borrower. See 12 U.S.C. § 2605(e). A Qualified WrittenRequest must (1) be a written communication, and (2) include“the name and account of the borrower,” and “a statementof the reasons for the belief of the borrower, to the extentapplicable, that the account is in error or provides sufficientdetail to the servicer regarding other information sought bythe borrower.” 12 U.S.C. § 2605(e)(1)(B)(i)-(ii). “Servicing”means “receiving any scheduled periodic payments from aborrower ... and making the payments of principal and interest
PLUYD COLEMAN and SAHAR LEWIS, individually, Plaintiffs, v...., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.6and such other payments with respect to the amounts receivedfrom the borrower.” Id. § 2605(i)(3). Questioning the validityof the loan does not meet the standard for a QWR. ConsumerSolutions REO, LLC, v. Hillery, 658 F.Supp.2d 1002, 1014(N.D. Cal. 2009).To state a claim under RESPA, a plaintiff must allege botha violation under RESPA and pecuniary damages caused.Banares v. Wells Fargo Bank, NA, 681 Fed.Appx. 638, 641(9th Cir. 2017). Damages “involve concrete harm causedby the RESPA violation itself, not harm generally resultingfrom a plaintiff's default and foreclosure process.” Tamburriv. Suntrust Mortg., Inc., 875 F.Supp.2d 1009, 1014 (N.D.Cal. 2012). RESPA does not provide for injunctive relief andtherefore cannot be relied upon to stop a foreclosure. Id. at1013.Plaintiffs alleged that they made a QWR with informationrelated to servicing that “identified account servicing issuesand sought documentation verifying the debt.” (ECF No. 41.)They claim that Defendant's response “with a payment historyand copy of the Deed of Trust” “fail[ed] to validate the debtor provide a full accounting,” and was therefore insufficientto meet the requirements. (ECF No. 36.)Plaintiffs do not clearly allege what specific issues theyare challenging with regards to the servicing, comparedto the validity, of the loan. Even assuming they allegeda valid servicing issue, Plaintiffs also have not shownwhat harm they suffered by allegedly deficient responsesto their requests. Plaintiffs do not argue that they relied onDefendant's responses or lack thereof to delay payments.Plaintiffs statements to the Court suggest they would still havebeen in default and subject to foreclosure absent Defendant'salleged non-response. (ECF No. 45 at 4.) Banares, 681Fed.Appx. at 641; Tamburri, 875 F.Supp.2d at 1014. Plaintiffshave therefore failed to state a claim under RESPA.c. Plaintiffs’ “Motion for Clarification” and “Affidavitin Support of Verified Complaint”In their “Motion for Clarification” (ECF No. 50) and“Affidavit in Support of Verified Complaint” (ECF No.85), Plaintiffs claim that their claims have always beenbased on theories of “fraudulent lack of standing, rootedin securitization fraud, concealment of material facts, andnoncompliance with trust and securities law, includingthe absence of a valid recorded assignment or Poolingand Servicing Agreement (“PSA”) disclosure.” (ECF No.50.) They also make additional claims for “unlawfulentry and forcible removal,” due process violations,“emotional, psychological, and physical harm,” “misconductby officials and opposing counsel,” and “irreparable harm anddamages.” (ECF No. 80.) These claims, to the extent they arenot already made in the operative complaint, cannot be arguedin subsequent motions absent leave to amend. LR 15-1.IV. Conclusion*8 It is therefore ordered that Defendant's motion to dismiss(ECF No. 36) is GRANTED.It is further ordered that Plaintiffs’ claim for securities fraudis dismissed with prejudice.It is further ordered that Plaintiffs’ claims for breach ofcontract, wrongful foreclosure, quiet title, and RESPA aredismissed without prejudice.It is further ordered that Plaintiffs’ outstanding motions (ECFNos. 38, 50, 69, 70, 71, 75) are DENIED as moot.Dated this 5th day of November 2025.All CitationsSlip Copy, 2025 WL 3101996Footnotes1This action was originally brought by Sahar Lewis and Pluyd Coleman as trustees on behalf of the Trust. (ECFNo. 1-3.) In their first amended complaint, Plaintiffs now assert claims on behalf of themselves as individuals.(ECF No. 27.)
PLUYD COLEMAN and SAHAR LEWIS, individually, Plaintiffs, v...., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.7End of Document© 2025 Thomson Reuters. No claim to original U.S. Government Works.
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