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Carbajal v. ETS Services

February 2, 2009


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


Defendant Executive Trustee Services, LLC ("Defendant" or "ETS") has filed a motion to dismiss Plaintiffs' Complaint. For the reasons discussed below, Defendant's motion is GRANTED.


On September 10, 2008, Plaintiffs commenced this action in the Superior Court of California, County of San Diego - North County. On October 28, 2008, Defendant removed the action to federal court.

Plaintiffs are the owners of the real property located at 1502 Rock Springs Road, San Marcos, California 92069 ("Property"). (Compl. ¶ 6.) Plaintiffs allege that ETS and the Doe defendants are proceeding toward a Trustee's sale of the Property (Compl. ¶ 5.) Plaintiffs allege, "Upon information and belief, DOE 1 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.) Plaintiffs further allege that DOE 1 has no right to initiate foreclosure or direct ETS to foreclose or sell the Property. (Compl. ¶ 8.)

Plaintiffs allege that although their attorney demanded proof of Defendants' right to proceed in foreclosure, Defendants have not offered any proof. Plaintiffs also allege that their attorney demanded a detailed accounting of the amount Defendants stated must be paid to redeem the Property from foreclosure. (Compl. ¶ 11.) According to Plaintiffs, any response by Defendants has been so inadequate that Plaintiffs have been prevented from determining whether any or all of the charges included in the payoff demand were justified. (Id.)

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.


ETS moves to dismiss Plaintiffs' Complaint for failure to state a claim. The Court grants ETS's motion because the Complaint is vague and conclusory. Although Plaintiffs generally allege violations of certain statutes, Plaintiffs fail to allege how ETS violated the statutes or plead sufficient facts establishing a violation.

A. Unfair Debt Collection Practices

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

With respect to the Fair Debt Collection Practices Act and the Real Estate Settlement Procedures Act, Plaintiffs do not specify what provision(s) of these acts ETS violated or what ETS in particular did to violate the acts. To the extent Plaintiffs claim that ETS violated the Real Estate Settlement Procedures Act, 12 U.S.C. § 2605(e), by failing to take action with respect to Plaintiffs' September 5, 2008 inquiry (Ex. 1 to the Compl.), Plaintiffs' 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 ...

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