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Ramos v. Citimortgage

January 7, 2009

CARL T. RAMOS, PLAINTIFF,
v.
CITIMORTGAGE, INC., DEFENDANT.



MEMORANDUM AND ORDER RE: MOTION TO DISMISS AND MOTION FOR A MORE DEFINITE STATEMENT

Plaintiff Carl T. Ramos brought this lawsuit against Citimortgage Inc. alleging violations of federal and state law relating to a loan he obtained from a third party. Defendant now moves to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted or, in the alternative, for a more definite statement pursuant to Federal Rule Civil of Procedure 12(e).

I. Factual and Procedural Background

On September 15, 2005, plaintiff obtained a loan from Beneficial California Inc. ("Beneficial") in the amount of $270,762.90 that was secured by his residence in North Highlands, California. (Compl. ¶¶ 9, 12.) After consummating the loan, Beneficial allegedly failed to provide plaintiff with certain forms required by the Truth in Lending Act ("TILA"), 15 U.S.C. § 1635(a), informing him of his right to rescind the loan. (Id. ¶ 26.)

Subsequently, defendant purchased plaintiff's loan from Beneficial. (Id. ¶ 69.) Defendant then proceeded to report incorrect information about plaintiff to several credit reporting agencies. (Id. ¶ 62.) Plaintiff notified defendant that the information was incorrect, and defendant acknowledged the errors in a July 29, 2006 letter and stated that it would correct them. (Id.) However, plaintiff alleges that defendant continues to report false information to these agencies. (Id. ¶ 63.)

In August and September 2006, plaintiff negotiated with defendant regarding a modification of his loan to remove a prepayment penalty. (Id. ¶¶ 71-72.) Defendant allegedly represented that it would remove the prepayment provision, but the parties' subsequent Loan Modification Agreement effectively retained the penalty. (Id. ¶¶ 72-77, 91-92; id. Ex. I at 4.) As a result, when plaintiff sought a "payoff quote" in December 2006, defendant informed him that he would be subject to a prepayment penalty of $8656.50. (Id. Ex. J.)

After entering into the Loan Modification Agreement, plaintiff alleges that defendant may have sold the loan to another party and become the servicer of the loan. (Id. ¶ 69.) Alternatively, plaintiff alleges that defendant may still own the loan as an assignee. (See id. ¶¶ 33, 67, 85-87.)

As a loan servicer, defendant allegedly acted as a debt collector for the loan's new owner. (Id. ¶ 42.) In a letter plaintiff sent to defendant dated August 11, 2008, plaintiff stated, "[W]e are asserting our rights under... the Fair Debt Collection Practices Act in that we are advising you that we have no intent on paying on the debt any further and we wish that all communications cease." (Id. ¶ 46.) Despite this notification, plaintiff alleges that defendant "repeatedly called plaintiff attempting to collect the debt." (Id. ¶ 47.)

In the August 11, 2008 letter, plaintiff also expressed his belief that defendant was no longer the "true note holder" and demanded information pertaining to the note holder's identity in the form of a Qualified Written Request pursuant to the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. §§ 2601-2617. (Id. ¶¶ 21, 33.) He also asserted his right to rescind the loan agreement pursuant to TILA, 15 U.S.C. § 1635(b), in light of Beneficial's failure to provide him with the requisite notice of his right to rescind the loan. (Id. ¶¶ 34-38.) Defendant did not comply with plaintiff's Qualified Written Request or his demand for rescission. (Id. ¶¶ 32, 38.)

Plaintiff filed his Complaint on September 24, 2008, alleging fraud, fraudulent concealment, breach of contract, unconscionability, breach of the implied covenant of good faith and fair dealing, and violations of TILA, 15 U.S.C. §§ 1601-1667f; the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692a-1692p; the Rosenthal Fair Debt Collection Practices Act ("RFDCPA"), Cal. Civ. Code §§ 1788.1-1788.33; the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. §§ 1681a-1681x; and California's Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code §§ 17200-17509. Presently before the court are defendant's motion to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) and motion for a more definite statement pursuant to Federal Rule of Civil Procedure 12(e).

II. Discussion

A. Legal Standard

On a motion to dismiss, the court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322 (1972). To survive a motion to dismiss, a plaintiff needs to plead "only enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007). Dismissal is appropriate, however, where the plaintiff fails to state a claim supportable by a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990); see also Conley v. Gibson, 355 U.S. 41, 47 (1957) (complaint must "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests"), abrogated on other grounds by Twombly, 127 S.Ct. at 1968.

In general, the court may not consider materials other than the facts alleged in the complaint when ruling on a motion to dismiss. Anderson v. Angelone, 86 F.3d 932, 934 (9th Cir. 1996). The court may, however, consider additional materials if the plaintiff has alleged their existence in the complaint and if their authenticity is not disputed. See Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994), overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002). Here, plaintiff has provided the court with his Loan Summary and Loan Repayment and Security Agreement (Compl. Ex. C); his Loan Modification Agreement (id. Ex. I); an August 31, 2006 letter from defendant (id. Ex. H); and defendant's response to his request for a "payoff quote" (id. Ex. J). Plaintiff has alleged the existence of these documents in his Complaint (id. ¶¶ 69, 72-74), and no party has questioned their authenticity. Accordingly, the court will consider these documents in deciding defendant's motion to dismiss.

B. TILA Claims

1. Timeliness of ...


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