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Ines v. Countrywide Home Loans

March 12, 2009

MERLINDA L. INES, PLAINTIFF,
v.
COUNTRYWIDE HOME LOANS, INC.; BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATE HOLDERS CWMBS, INC. CHL MORTGAGE PASS-THROUGH TRUST 2005 HYB 7 MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HYB7, DEFENDANTS.



The opinion of the court was delivered by: Hayes, Judge

ORDER

The matter before the Court is the Motion to Dismiss Plaintiff's First Amended Complaint (Doc. # 21).

Background

On July 15, 2008, Plaintiff initiated this action by filing the complaint (Doc. # 1). Plaintiff thereafter filed three motions for temporary restraining order (Docs. # 3, 19, 13), all of which the Court denied (Docs. # 7, 10, 14). On August 4, 2008, Defendants filed a motion to dismiss the complaint (Doc. # 11) for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. On November 3, 2008, this Court issued an order granting the motion to dismiss, and dismissing the Complaint with leave to amend (Doc. # 18).

On November 26, 2008, Plaintiff filed the First Amended Complaint ("FAC") (Doc. # 20), which is the operative pleading in this case. The FAC alleges that Plaintiff owns property in Chula Vista, CA. FAC, ¶ 22. The FAC alleges that "defendant(s) operate a for profit foreclosure business." Id., ¶ 30. The FAC alleges that "Defendants wrongfully proceeded in foreclosure against the plaintiff without the adjudication of the issue of ownership of title." Id., ¶ 1.

The FAC alleges that "Defendants provided plaintiff with papers that indicated that Defendants may be a debt collector attempting to collect a debt." Id., ¶ 32. The FAC alleges that Plaintiff "sent defendants requests to validate and verify the alleged debt," but that "[n]o verification of debt was provided to plaintiffs." Id., ¶¶ 32-22. The FAC alleges that "[t]he defendants' unlawful foreclosure and unlawful detainer actions are defective in that the request to validate the alleged debt has gone unanswered and the request to provide the 'Original', unaltered Affidavit of Obligation; 'Note', has gone unfulfilled." Id., ¶ 35. The FAC alleges that "Defendant has no proven right or legal authority to foreclose on plaintiffs' real property when title and accounting are disputed." Id., ¶ 73.

The FAC alleges that "[t]he initial loan negotiations were conducted primarily with [Plaintiff] in Tagalog, the language widely spoken in her home and in local community business transactions and societal meetings," but that "no translation of every term and condition in the written agreement was provided for her for her final review and understanding." Id., ¶ 39. The FAC alleges that Plaintiff "was rushed through the signing of the loan document package and did not understand the meaning of the documents. Her questions went unanswered." Id. The FAC alleges that "Plaintiff was given verbal guarantees that she would be allowed to refinance the loan prior to the first rate adjustment," and that "[t]his guarantee induced the execution of the transaction." Id., ¶ 40. The FAC alleges that "[a]t the time of settlement on the transaction Plaintiff was not given any signed copies of the completed transaction." Id., ¶ 41. The FAC alleges that "[t]he loan was thereafter purportedly secured by the deed of trust and recorded," but that "Plaintiff has no records of the signed transaction in its final form concerning her subject property." Id., ¶ 42. The FAC alleges that "the material terms of the loan, including the interest rate, annual percentage rate, and closing costs were misrepresented and were greater than the original Good Faith Estimate of Closing Costs given to Plaintiff, and that the discrepancies, although questioned by Plaintiff, were never explained in her language or otherwise." Id., ¶ 44. The FAC alleges that "Plaintiff was directed to contact the loan servicer for the trustee as such is the agent of the lender, but her questions went unanswered." Id., ¶ 45.

The FAC alleges that "Plaintiff began making payments to the Trustee, but believes that the mortgage payments were misapplied. Plaintiff has questioned the misapplications of the funds but has never been given a satisfactory accounting of how the funds were applied." Id., ¶ 46. The FAC alleges that "Plaintiff tendered payment under the negotiable instrument law and included settling the account." Id., ¶ 54. The FAC alleges that "[t]heir receipt of the tender is documented with return receipt mail," but that "Defendants kept the tender and did not credit plaintiff's account with payments and tender, only charges and fees were placed against her account." Id.

The FAC alleges a cause of action for injunctive relief against all Defendants. In support of the cause of action for injunctive relief, the FAC alleges that "Plaintiff will suffer irreparable injury if the execution of eviction under the unlawful detainer action keeps her from her home and it is irretrievable by loss to third parties," and requests that the Court "enjoin the named Defendants from further damage to the subject Property." Id., ¶¶ 84-85.

The FAC alleges a cause of action for statutory damages against all Defendants. In support of the cause of action for statutory damages, the FAC alleges that "Plaintiff is entitled to statutory damages from defendant for its acts and conduct, including fraudulent conduct and commercial injury to the plaintiff." Id., ¶ 88. In support of the cause of action for statutory damages, the FAC alleges that Defendants have violated the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. 2605; the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692; the Rosenthal Fair Debt Collection Practices Act ("RFDCPA"), Cal. Civ. Code § 1788; 12 U.S.C. section 1831(2)(A); the Truth in Lending Act ("TILA"), 15 U.S.C. section 1601, et seq.; and the following California state laws: "1) Business and Professions Code 17200 for unfair and deceptive business practices; 2) unjust enrichment; 3) breach of fiduciary duty; 4) conversion; 5) negligence . . . 6) violations of the California Consumer Protection Act; 7) violations of California Civil Code 2943 for not supplying Payoff Demand Statements." Id., ¶ 93.

The FAC alleges a cause of action for fraud against all Defendants. In support of the cause of action for fraud, the FAC alleges that "Defendants" intentionally concealed facts "relevant to the validity of the property while under a clear duty/obligation to disclose such facts;" that "Defendants knew that Plaintiff[] was not aware of the material facts not disclosed by them, particularly that Plaintiff[] would not be able to readily discover such material and legal facts which would affect Plaintiff's legal position including Plaintiff's rightful title to the property;" that Defendants "knowingly acted with a total disregard for the truth of the material facts presented [i]n the documents provided to the Plaintiff;" that "Defendants knew that their actions through the misrepresentation of the facts would immediately cause the Plaintiff to lose financial interest in the property" and would "become predominant, decisive and substantial factors of influencing the course of the conduct of the Plaintiff;" and that "[t]he foreclosure sale was wrongfully carried out at plaintiff's property." Id., ¶¶95-108.

The FAC alleges a cause of action for quiet title against all Defendants. In support of the cause of action for quiet title, the FAC alleges that Plaintiff is the "owner in fee and is in possession and control" of the subject property, and that "Defendant has no such right of title or estate in said property." Id., ¶¶ 110-112. The FAC alleges that "Defendant has wrongfully interfered with or threaten[ed] to interfere with Plaintiff's use and enjoyment of the above described property n that they have evicted her from her home and taken her family household possessions." Id., ¶ 113.

The FAC alleges a cause of action for declaratory relief against all Defendants. In support of the cause of action for declaratory judgment, the FAC requests that the Court declare that Plaintiff is protected by the FDCPA and the RFDCPA; declare "whether or not the defendants can demonstrate legal status and standing in the true legal capacity as holder in due cour[se] of the original signed deed of trust and any related note;" declare whether or not defendants have violated state securities laws as set forth in sections 33560 and 22340 of the California Financial Code; and declare "that laches applies to bar the alleged debt collector, or, since the trustee failed to comply with the Fair Debt Collection Practices Act in order to proceed to trustee sale of the property, the trustee is equitably estopped from taking any further action against the subject property." Id., ¶¶ 118-125.

On December 15, 2008, Defendants filed the Motion to Dismiss. Plaintiff has not filed any ...


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