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Amaro v. Option One Mortgage Corp.

January 14, 2009

TERESA L. AMARO, PLAINTIFF,
v.
OPTION ONE MORTGAGE CORP., QUALITY LOAN SERVICES, CORP., AND DOES 1 THROUGH 50 INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: VIRGINIA A. Phillips United States District Judge

[Motion filed on October 31, 2008]

ORDER GRANTING MOTION TO DISMISS

The Court has received and considered the papers filed in support of, and in opposition to, Defendant Sand Canyon Corporation's Motion to Dismiss. For the following reasons, the Court GRANTS the Motion.

I. BACKGROUND

A. Factual Allegations

On December 2, 2005, Plaintiff Teresa L. Amaro ("Plaintiff") obtained an adjustable rate mortgage for $367,920 from Option One Mortgage Corporation ("Option One"). (Compl. ¶ 7.) Pursuant to the mortgage agreement with Option One, Plaintiff transferred her deed of trust to Option One on December 2, 2005; Option One recorded the deed on December 21, 2005. (Id. at ¶¶ 12, 13.)

Plaintiff alleges Option One did not explain "the workings of the rate, how it is computed nor its inherent volatility." (Id. at ¶ 9.) Furthermore, according to Plaintiff, Option One "charged and obtained improper fees for the placement of h[er] loan as "sub-prime" when [s]he qualified for a prime rate mortgage which would have generated less fees and interest. (Id. at ¶ 10.)

On May 21, 2008, Quality Loan Service filed a substitution of trustee with the San Bernardino County Recorder, thereby naming itself as the trustee of Plaintiff's deed of trust. (Id. at ¶ 16.) Quality Loan Service also sent to Plaintiff a "Notice of Breach and Default and of Election to Cause Sale of Real Property Under Deed of Trust" ("Notice of Breach") on that day. (Id. at ¶ 17.)

B. Procedural History

Plaintiff filed a Complaint against Defendants Option One Mortgage Corp. and Quality Loan Services, Corp., in the California Superior Court, San Bernardino County, with the following claims against both Defendants: (1) Violation of the Truth in Lending Act ("TILA"), 15 U.S.C. § 1611; (2) Violation of the Real Estate Settlement Procedures Act ("RESPA"), 26 U.S.C. § 2605; (3) Violation of the Home Ownership and Equity Protection Act of 1994 ("HOEPA"), 15 U.S.C. § 1602; (4) Violation of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692; (5) Breach of fiduciary duty; (6) Breach of covenant of good faith and fair dealing; (7) Injunctive relief; (8) Injunctive relief; (9) Declaratory relief; (10) Fraud.

Defendant Option One Mortgage Corp., now known as Sand Canyon Corporation, removed the case to this Court on October 24, 2008 on the basis of federal question jurisdiction, 28 U.S.C. § 1331. Defendant Quality Loan Services did not join in the removal; Defendant Quality Loan Services filed a "Declaration of Non-monetary Status" in the state court proceeding before removal, thereby transforming it, the trustee under the deed of trust, into a nominal third party, no longer required to participate in the action pursuant to California Civil Code § 29241.

Defendant Sand Canyon Corporation ("Defendant") filed a "Motion to Dismiss the Action [Fed. R. Civ. Proc. 12(b)(6)]("Motion") on October 31, 2008 and noticed a hearing on the Motion for December 8, 2008. Defendant moves the Court to dismiss Plaintiff's first, third, fifth, sixth, and tenth claims. Plaintiff, appearing in this action in pro se, filed Opposition on November 21, 2008. Defendant filed a Reply on December 1, 2008. On December 2, 2008, the Court took the Motion under submission for decision without hearing.

II. LEGAL STANDARD

Under Rule 12(b)(6), a party may bring a motion to dismiss for failure to state a claim upon which relief can be granted. As a general matter, the Federal Rules require only that a plaintiff provide "'a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964 (2007) (quoting Fed. R. Civ. P. 8(a)(2)). In addition, the Court must accept all material allegations in the complaint -- as well as any reasonable inferences to be drawn from them ...


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