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Hernandez v. Reconstruct Co.

February 2, 2009


The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge


Defendants Reconstruct Company ("Reconstruct") and Countrywide Home Loans, Inc. ("Countrywide") ("Defendants"), have filed a motion to dismiss the complaint, or, in the alternative, for a more definite statement. For the reasons discussed below, Defendants' motion to dismiss is GRANTED and Defendants' motion for a more definite statement is DENIED AS MOOT.


On September 4, 2008, Plaintiff commenced this action in the Superior Court of California, County of San Diego - North County. On October 16, 2008, Defendants removed the action to federal court.

Plaintiff Gabriel Hernandez is the owner of the real property located at 12132 Lilac Knolls, Valley Center, California 92082. (Compl. ¶ 6.) Plaintiff alleges that Defendants are proceeding toward a Trustee's sale of the Property (Compl. ¶ 5.) Plaintiff alleges, "Upon information and belief, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. C/O COUNTRYWIDE HOME LOANS, INC., is not the holder of the note identified in the security instrument, is not in possession of the note properly endorsed to it, nor is it otherwise entitled by law in this State to initiate foreclosure under the security instrument identified in Exhibit 1." (Compl. ¶ 7.) Plaintiff claims that Countrywide has no right to initiate foreclosure or direct Reconstruct to foreclose or sell the Property. (Compl. ¶ 8.)

Plaintiff alleges that although his attorney demanded proof of Defendants' right to proceed in foreclosure, Defendants have not offered any proof. (Compl. ¶ 10.) Plaintiff further alleges that his attorney demanded a detailed accounting of the amount Defendants stated must be paid to redeem the Property from foreclosure. (Compl. ¶ 11.) According to Plaintiff, any response by Defendants has been so inadequate that Plaintiff has been prevented from determining whether any or all of the charges included in the payoff demand were justified. (Id.) Plaintiff also alleges that Defendants added costs and charges to the payoff amount that were not justified and proper under the terms of the note or the law. (Compl. ¶ 17.)

The Complaint sets forth the following causes of action: (1) unfair debt collection practices; (2) predatory lending practices; and (3) RICO violations.


Under Fed. R. Civ. P. 8(a)(2), the plaintiff is required only to set forth a "short and plain statement" of the claim showing that plaintiff is entitled to relief and giving the defendant fair notice of what the claim is and the grounds upon which it rests. Conley v. Gibson, 355 U.S. 41, 47 (1957). A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) should be granted only where a plaintiff's complaint lacks a "cognizable legal theory" or sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988). When reviewing a motion to dismiss, the allegations of material fact in plaintiff's complaint are taken as true and construed in the light most favorable to the plaintiff. See Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). Although detailed factual allegations are not required, factual allegations "must be enough to raise a right to relief above the speculative level." Bell Atlantic v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007). "A plaintiff's obligation to prove the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id.


Defendants move to dismiss Plaintiff's Complaint for failure to state a claim, or, in the alternative, for a more definite statement. The Court grants Defendants' motion to dismiss because although Plaintiff generally alleges violations of certain statutes, Plaintiff fails to allege how Defendants violated the statutes and/or fails to plead sufficient facts establishing a violation.

A. Unfair Debt Collection Practices

Plaintiff alleges that Defendants have violated "provisions of California's Rosenthal Fair Debt Collection Practices Act ("RFDCPA"), including but not limited to Civil Code § 1788 (e) and (f), and the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C., Title 41, Subchap. V. §§ 1692 et seq. and the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. §§ 2601-2617." (Compl. ¶ 20.)

With respect to the FDCPA and the RESPA, Plaintiff does not specify what provision(s) of these acts Defendants violated or what Defendants did to violate the acts. To the extent Plaintiff claims that Defendants violated the RESPA, 12 U.S.C. § 2605(e), by failing to take action with respect to Plaintiff's August 29, 2008 inquiry (Ex. 1 to the Compl.), Plaintiff's claim was premature. Under § 2605(e), after a servicer of a federally related mortgage loan receives a qualified written request from the borrower for information relating to the servicing of such loan, the servicer shall provide a written response acknowledging receipt of the ...

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