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Salazar v. Downey Savings and Loan Association

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


March 12, 2009

ESTEBAN T. SALAZAR, PLAINTIFF,
v.
DOWNEY SAVINGS AND LOAN ASSOCIATION, F.A.; FEDERAL DEPOSIT INSURANCE CORPORATION; AND DOES 1-50, INCLUSIVE, DEFENDANTS.

The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

ORDER: (1) GRANTING FDIC'S MOTION TO SUBSTITUTE PARTY; (Doc. No. 8); (2) GRANTING FDIC'S MOTION TO STAY PROCEEDINGS; (Doc. No. 10); (3) DENYING AS MOOT DOWNEY SAVINGS AND LOAN ASSOCIATION, F.A.'S MOTION TO DISMISS; (Doc. No. 7) TRUSTEE CORPS; (4) GRANTING TRUSTEE CORPS' MOTION TO DISMISS COMPLAINT; (Doc. No. 3) and (5) DENYING AS MOOT TRUSTEE CORPS' MOTION FOR SUMMARY JUDGMENT. (Doc. No. 6.)

Presently before the Court are: (1) Defendant Federal Deposit Insurance Corporation's ("FDIC") Motion to Substitute FDIC as Receiver in Place of Downey Savings and Loan Association, F.A. ("Downey") (Doc. No. 8); (2) Defendant FDIC's Motion to Stay Proceedings Pending Exhaustion of Statutorily Mandated Administrative Remedies (Doc. No. 10); (3) Defendant Downey's Motion to Dismiss Complaint for Failure to State Claim (Doc. No. 7); (4) Defendant Trustee Corps' Motion to Dismiss Complaint For Failure to State Claim, or alternatively, (5) Motion for Summary Judgment (Doc. Nos. 3 and 6.)

FACTUAL AND PROCEDURAL BACKGROUND

On March 15, 2005, plaintiff Esteban Salazar ("Salazar") borrowed $620,000 from defendant Downey to purchase the property located at 2264 Mountain Ridge Road, Chula Vista, CA 91914 ("Property"). In exchange for the loan, plaintiff executed a promissory note secured by a deed of trust on the property. Downey assigned the deed and note to "Mortgage Electronic Registration Systems" ("MERS") acting as nominee for Central Mortgage Company ("CMC") in an instrument recorded on January 5, 2006. Defendant MTC Financial, Inc. (sued as, and hereinafter referred to as "Trustee Corps"), acting for CMC, issued a Notice of Default and Election to Sell Under Deed of Trust that was recorded on June 27, 2008. In a Substitution of Trustee recorded on August 19, 2008, CMC substituted Trustee Corps as the new trustee under the deed. Trustee Corps issued and recorded the Notice of Trustee's Sale referenced in the complaint on October 20, 2008.*fn1

The Complaint alleges Trustee Corps and Downey are "proceeding toward a Trustee's sale" of the Property (Compl. ¶ 5,) purportedly at Downey's "insistence." (Id. ¶ 1.) Plaintiff contends Downey is not the holder of the note secured by a deed of trust on the Property, is not in possession of the note properly endorsed to it, and does not have the legal right to foreclose. (Id. ¶ 7.) Plaintiff also contends that Downey has no right to direct Trustee Corps to foreclose and sell the Property. (Id. ¶ 8.) Plaintiff has allegedly notified Trustee Corps of his view that Downey has no right to foreclose, and has requested that Trustee Corps suspend the foreclosure sale "unless and until it has obtained proof that [Downey] actually has in its possession the original note properly endorsed to it or assigned to it as of a date preceding the notice of default recorded by Trustee Corps." (Id.) Plaintiff's letter to Trustee Corps, dated October 22, 2008, is attached as Exhibit 2 to the Complaint.

Plaintiff also alleges that defendants' conduct in this case is part of a "pattern and practice" of such activity. Plaintiff states, "the [d]efendants and each of them, in so acting in this case and with respect to many other mortgage or trust deed security instruments engage in a pattern and practice of utilizing the non-judicial foreclosure procedures of this State to foreclose on properties when they do not, in fact, have the right to do so"; (Id., ¶ 9) that "[i]n all the wrongful acts alleged in this complaint, the [d]efendants and each of them have utilized the United States mail in furtherance of their conspiracy"; (Id., ¶ 13) and finally that "[d]efendants, and each of them, in committing the acts alleged in this and in other cases are engaging in a pattern of unlawful activity." (Id., ¶ 14.)

Plaintiff brought the instant Complaint in San Diego County Superior Court on November 5, 2008, and the trustee's sale went forward on November 6, 2008. On November 25, 2008 several transactions were recorded: (1) MERS assigned the deed to CMC; CMC assigned all beneficial interest to Downey; and (3) Trustee Corps issued a Trustee's Deed Upon Sale conveying its interest in the Property to Deutsche Bank National Trust Company as Trustee for Downey.

Trustee Corps filed a motion to dismiss the Complaint, or alternatively a motion for summary judgment on December 5, 2008. (Doc. Nos. 3 and 6.) Downey filed a motion to dismiss the Complaint on December 8, 2008. (Doc. No. 7.) The FDIC filed its motion to substitute itself as a receiver in place of Downey and a motion to stay proceedings pending exhaustion of statutorily mandated administrative remedies on December 8, 2008. (Doc. No. 8.) No party has not filed an opposition to any of these motions. The Court finds the motions suitable for disposition without oral argument pursuant to Local Civil Rule 7.1(d)(1).

DISCUSSION

I. FDIC'S Motion to Substitute Party

On November 21, 2008 the United States Treasury Department's Office of Thrift Supervision ("OTS") declared Downey insolvent and appointed the FDIC as Downey's receiver.*fn2 The FDIC accepted the receivership pursuant to 12 U.S.C. § 1821(c)(3)(A).*fn3 The FDIC now moves the Court for substitution of the FDIC in Downey's place as a party in interest in this case. The motion is based on Fed. R. Civ. P. 25(c), which states "[i]f an interest is transferred, the action may be continued by or against the original party unless the court, on motion, orders the transferee to be substituted in the action or joined with the original party." Fed. R. Civ. P. 25(c) (2009). Rule 25(c) allows an action to continue unabated when an interest in a lawsuit changes hands, rather than requiring the initiation of an entirely new lawsuit. ELCA Enters. v. Sisco Equip. Rental & Sales, 53 F.3d 186, 191 (8th Cir. 1995). The decision to grant or deny substitution on the basis of a transfer of interest rests in the Court's discretion. Educational Credit Mgmt. Corp. v. Bernal, 207 F.3d 595, 598 (9th Cir. 2000).

The FDIC, as receiver of an institution, succeeds to "all rights, titles, powers, and privileges" of that institution, including taking over all the institution's assets and obligations. 12 U.S.C. § 1821(d)(2)(A)-(B), (H)(2008); Sharpe v. FDIC, 126 F.3d 1147, 1152 (9th Cir. 1997). The FDIC argues there has been a transfer of interest because on November 21, 2008 the OTS declared Downey insolvent and appointed the FDIC as Downey's receiver. Given these rights and responsibilities, entities appointed as receivers have been found to be appropriately substituted under Rule 25(c). See, e.g. FDIC v. Wrapwell Corp., 922 F. Supp. 913, 917 (S.D.N.Y. 1996) (finding the FDIC, as receiver for plaintiff, was properly substituted into the case under Rule 25(c)). Compare First American Sav. Bank, F.S.B. v. Westside Federal Sav. & Loan Asso., 639 F. Supp. 93, 96 (W.D. Wash. 1986) (finding the Federal Savings and Loan Insurance Corporation, as receiver for the defendant savings and loan association, was properly substituted as party defendant under Rule 25(c)). Accordingly, when the OTS declared Downey insolvent and appointed the FDIC as Downey's receiver, a transfer of interest took place, as contemplated by Fed. R. Civ. P. 25(c). The Court therefore GRANTS the FDIC's motion to substitute itself as a party in interest for Downey.

II. FDIC's Motion to Stay Proceedings

The FDIC moves the Court to stay plaintiff's claim pending plaintiff's exhaustion of the administrative claims process required by the Financial Institutions Reform, Recovery and Enforcement Act ("FIRREA"), 12 U.S.C. § 1811 et seq. The FDIC requests the Court stay the proceedings until the earlier of 180 days from the filing of plaintiff's administrative claim or 10 days after the FDIC has made a final determination upon the claim.

A) Legal Standard

Section 1821(d)(3)(A) of FIRREA*fn4 provides the FDIC, acting in its capacity as receiver, with the authority to determine claims against a failed depository institution. Under § 1821(d)(3), the FDIC must give mailed notice of the claims process to the failed institution's known creditors within thirty days of discovery of the creditors' names and addresses. The FDIC must promptly give publication notice to all other creditors. In either case, the notice must establish a deadline of no less than ninety (90) days from the date of notice for receipt of claims for the creditors to assert their claims against the institution's assets. 12 U.S.C. § 1821(d)(5)(C) bars payment on those claims filed beyond the date fixed by FDIC.

If a claimant submits a timely claim to the FDIC, the FDIC must determine within 180 days whether to allow or disallow the claim.*fn5 If the FDIC fails to determine the claim or disallows the claim, then, under § 1821(d)(6)(A), the claimant has 60 days to request administrative review or file or continue suit on such claim in the district court.*fn6 No court has jurisdiction over the claim until the exhaustion of this administrative process.*fn7 The Ninth Circuit has unequivocally held that a claimant must exhaust his administrative remedies as mandated by § 1821 before pursuing a claim in federal court against an failed financial institution. International Travel Mktg. v. FDIC, 45 F.3d 1278, 1282 (9th Cir. 1994). The exhaustion requirement applies regardless of whether a plaintiff brings suit before or after the FDIC is appointed as receiver for a failed institution. Id.

B) Analysis

The first question the Court must answer is whether plaintiff is a "creditor" for purposes of FIRREA claims process. Sharpe v. FDIC, 126 F.3d 1147, 1156 (9th Cir. 1997) (holding plaintiffs, who held cashier's checks drawn on a failed financial institution were not creditors for FIRREA purposes and were not subject to the law's claims process). Defendant argues plaintiff's claim constitutes a claim for payments from, or an action seeking a determination of rights with respect to, the assets of the former bank, barring the Court's jurisdiction under § 1821(d)(13)(D) until plaintiff has exhausted the administrative claims procedure. In this case, the foreclosure sale of plaintiff's property caused the property to revert to the beneficiary, Deutsche Bank, as trustee for Downey. Plaintiff's complaint alleges Downey had no right to initiate the trustee's sale. The Court finds that plaintiff's dispute is properly an action seeking a determination of rights with respect to the property under § 1821(d)(13)(D), and accordingly that plaintiff is a "creditor" for purposes of the FIRREA claims process.

Because plaintiff is a creditor of Downey as contemplated by FIRREA, and brought suit prior to the FDIC's receivership appointment, he must exhaust his administrative remedies with the FDIC before continuing with his present federal case against Downey. International, 45 F.3d at 1282. The Ninth Circuit has indicated that a stay of proceedings is the proper procedural mechanism for a court to employ in cases where an action is pending at the time of the FDIC's appointment as receiver and "when the claimant still has time to file an administrative claim with the FDIC before the administrative bar date passes." Intercontinental, 45 F.3d at 1284. The district court does not lose jurisdiction of the case until the claimant fails to file a timely administrative claim. Id.

In the present case, the Court cannot determine the propriety of the FDIC's requested stay because the FDIC has not indicated the administrative bar date it set in its notice to plaintiff. In fact, the FDIC has not indicated whether it gave plaintiff notice of the claims process at all. Moreover, although a 180 day stay is warranted from the date of plaintiff's timely administrative claim, it has not been shown that plaintiffs have made such a claim. The Court finds that the granting of a 180 day stay is therefore premature. However, under 12 U.S.C. § 1821(d)(12)(A)*fn8 , the FDIC as receiver is entitled to a stay for up to 90 days in any judicial action to which it becomes a party. In light of the fact that the Court has granted the FDIC's motion to substitute itself as a party in interest for Downey, the FDIC has become a party to this action. Accordingly, the Court GRANTS the FDIC's motion to stay proceedings. The stay shall be in effect for a period of ninety (90) days, up to and including June 10, 2009. The FDIC shall submit a written status report to the Court no later than May 27, 2009 advising the Court of the following information: (1) whether the FDIC provided notice of the claims process to plaintiff; and (2) whether plaintiff has filed an administrative claim. The FDIC may move for dismissal if plaintiff does not take steps to exhaust his administrative remedies.

III. Downey's Motion to Dismiss

Downey has filed a motion to dismiss plaintiff's complaint for failure to state a claim upon which relief may be granted under Fed. R. of Civ. P. 12(b)(6). In light of the FDIC's substitution for Downey as a party in interest and the stay in the proceedings discussed supra, the Court DENIES Downey's motion as moot. The FDIC may re-file the motion to dismiss after the expiration of the stay, if it deems such action to be appropriate.

IV. Trustee Corps' Motion to Dismiss

Plaintiff's Complaint sets forth three broad causes of action against Trustee Corps.*fn9 First, he alleges Trustee Corps engaged in unfair debt collection practices in violation of the Federal Fair Debt Collection Practices Act ("FDCPA"), California's Rosenthal Fair Debt Collection Practices Act ("RFDCPA"), and the Federal Real Estate Settlement Procedures Act ("RESPA"). (Compl. ¶ 21.) Next, plaintiff claims defendants engaged in predatory lending practices in violation of the Home Ownership and Equity Protection Act ("HOEPA"), the Truth in Lending Act, and the Federal Trade Commission ("FTC") Act. (Compl. ¶ 24.) Finally, plaintiff alleges defendants violated the Federal Racketeering Influenced and Corrupt Organizations Act ("RICO"). (Compl.¶¶ 27-32.) Trustee Corps moves to dismiss the Complaint for failure to state a claim upon which relief may be granted under Federal Rule of Civil Procedure 12(b)(6). Alternatively, Trustee Corps moves for summary judgment.

A) Request for Judicial Notice

Trustee Corps has filed a request for judicial notice asking the Court to take judicial notice of several documents in support of its motion. In ruling on a motion to dismiss for failure to state a claim, "a court may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice." Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007). Accordingly, a court may consider matters of public record on a motion to dismiss, and in doing so "does not convert a Rule 12(b)(6) motion to one for summary judgment." Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. Cal. 1986), abrogated on other grounds by Astoria Federal Savings and Loan Ass'n v. Solimino, 501 U.S. 104, 111 (1991).

Trustee Corps asks the Court to take judicial notice of several documents recorded in the San Diego County Recorder's Office: (1) The grant deed for the Property in favor of plaintiff recorded on September 9, 2004; (2) The Deed of Trust in favor of Downey securing and referring to a Note dated March 15, 2005 in the amount of $620,000, recorded on March 21, 2005; (3) The Assignment of the Deed from Downey to MERS as nominee for CMC, recorded on January 5, 2006; (4) The Notice of Default and Election to Sell Under Deed of Trust by CMC, care of Trustee Corps, recorded June 27, 2008; (5) The Substitution of Trustee substituting Trustee Corps for original trustee DSL Service Company, recorded August 19, 2008; (6) The Notice of Trustee's Sale recorded October 8, 2008; (7) and (8) The Assignments of the Deed from MERS to CMC, and from CMC to Deutsche Bank National Trust Company as Trustee for Downey, recorded on November 25, 2008; and (10) The Trustee's Deed Upon Sale transferring title from Trustee Corps to Deutsche Bank as Trustee for Downey, recorded on November 25, 2008. The Court finds these documents appropriate for judicial notice under Fed. R. Evid. 201(b)(2).

Furthermore, Trustee Corps asks the Court to judicially notice the adjustable rate note dated March 15, 2005 for $620,000 between plaintiff and Downey. "[D]ocuments whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss." 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, 1124 (9th Cir. 2002). The Court finds the note appropriate for consideration because no party objects to its authenticity (plaintiff has not filed an opposition), and it is referenced extensively in the Complaint. The Court GRANTS the request for judicial notice in its entirety.

B) Legal Standard

A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a) (2009). A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the claims asserted in the complaint. Fed. R. Civ. P. 12(b)(6); Navarro v. Block, 250 F.3d 729, 731 (9th Cir. 2001). The court must accept all factual allegations pled in the complaint as true, and must construe them and draw all reasonable inferences from them in favor of the nonmoving party. Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337-38 (9th Cir.1996). To a void a Rule 12(b)(6) dismissal, a complaint need not contain detailed factual allegations, rather, it must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). However, "a plaintiff's obligation to provide 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. at 555 (citation omitted). "Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. (citation omitted). In spite of the deference the court is bound to pay to the plaintiff's allegations, it is not proper for the court to assume that "the [plaintiff] can prove facts that [he or she] has not alleged or that defendants have violated the . . . laws in ways that have not been alleged." Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526, (1983).

C) Federal Fair Debt Collection Practices Act Claims

Plaintiff alleges Trustee Corps "violated provisions of . . . the Federal Fair Debt Collection Practices Act, [("FDCPA") 15 U.S.C.] §§1692 et seq. . ." (Compl. ¶ 21.) Plaintiff also alleges Trustee Corps acted as a "debt collector" under this statute. Trustee Corps argues it is "doubtful" that the FDCPA applies to mortgage foreclosures and that Trustee Corps is not a "debt collector" as contemplated by the statute.

"The [FDCPA] prohibits debt collectors making false or misleading representations and from engaging in various abusive and unfair practices." Heintz v. Jenkins, 514 U.S. 291, 292 (1995); see also 15 U.S.C. § 1692, et seq. To state a claim for violation of the FDCPA, a plaintiff must allege that the defendant is a "debt collector" collecting a "debt." Uyeda v. J.A. Cambece Law Office, P.C., 2005 U.S. Dist. LEXIS 9271, at *7 (N.D. Cal. May 16, 2005). The Ninth Circuit has not spoken on this issue of whether foreclosure on a home pursuant to a deed of trust is "debt collection" as contemplated by the FDCPA. However, the Court finds rulings from other trial courts on this issue to be persuasive. Hulse v. Ocwen Fed. Bank, FSB, 195 F. Supp. 2d 1188, 1204 (D. Or. 2002) ("foreclosing on [a] property pursuant to a deed of trust is not the collection of a debt within the meaning of the FDCPA."); Gray v. Four Oak Court Ass'n, Inc., 580 F. Supp. 2d 883, 888 (D. Minn. 2008) ("the enforcement of a security interest, including a lien foreclosure, does not constitute the "collection of any debt [under the FDCPA]"). Accord Izenberg v. ETS Services, LLC, 2008 WL 5179088 (C.D. Cal. Dec. 8, 2008); Ines v. Countrywide Home Loans, Inc., 2008 WL 4791863, at *2 (S.D. Cal. Nov. 3, 2008). The Court accordingly finds that the foreclosure on plaintiff's home is not the collection of a debt within the meaning of the FDCPA.

To be held liable under the FDCPA, Trustee Corps must also fall within the Act's definition of a "debt collector." Heintz, 514 U.S. at 294; Romine v. Diversified Collection Servs., 155 F.3d 1142, 1145-46 (9th Cir. 1998). The FDCPA defines "debt collector," as any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.

For the purpose of [15 USCS § 1692f(6)], such term also includes any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the enforcement of security interests.

15 U.S.C. § 1692a (2008). Defendant argues it was not a debt collector, but was acting as a substituted trustee under a deed of trust to sell the property by power of sale at foreclosure, and was not attempting to collect funds from the debtor plaintiff. Plaintiff's complaint merely states that Downey directed Trustee Corps to sell the property at foreclosure. This role is not one of a debt collector.

Finally, the Complaint does not reference which of the FDCPA's numerous provisions Trustee Corps allegedly violated. Although the Court must assume that plaintiff can prove the facts he alleges in his complaint, it may not assume that Trustee Corps has violated the law in ways that have not been alleged. Associated Gen. Contractors , 459 U.S. at 526. Moreover, at the pleading stage, "a plaintiff's obligation to provide 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." Bell Atl., 550 U.S. at 555. Here, plaintiff provides no more than labels and conclusions that Trustee Corps violated the FDCPA, without so much as addressing the elements for any cause of action under that statute. Accordingly, the Court dismisses plaintiffs' FDCPA claim.

D) California's Rosenthal Fair Debt Collection Practices Act

Plaintiff also alleges Trustee Corps violated provisions of California's Rosenthal Fair Debt Collection Practices Act ("RFDCPA,") Civil Code § 1788(e)-(f), and has acted as a "debt collector" under this statute. (Compl. ¶ 21.) The sections of the RFDCPA plaintiff invokes do not exist.

Moreover, Trustee Corps correctly states in its motion that as a trustee performing acts of non-judicial foreclosure it is provided immunity from the RFDCPA under Cal. Civ. Code § 2924(b). "California Civil Code sections 2924 through 2924k provide a comprehensive framework for the regulation of a non-judicial foreclosure sale pursuant to a power of sale contained in a deed of trust." Moeller v. Lien, 25 Cal. App. 4th 822, 830 (Cal. Ct. App. 1994). The Moeller court also noted that this statutory framework is "intended to be exhaustive" and that "it would be inconsistent with the comprehensive and exhaustive statutory scheme regulating non-judicial foreclosures to incorporate another unrelated cure provision into statutory non-judicial foreclosure proceedings." Id. at 834. Section 2924 specifically provides:

In performing acts required by this article, the trustee shall incur no liability for any good faith error resulting from reliance on information provided in good faith by the beneficiary regarding the nature and the amount of the default under the secured obligation, deed of trust, or mortgage. In performing the acts required by this article, a trustee shall not be subject to [Cal. Civ. Code § 1788].

Cal. Civ. Code § 2924(b) (2008). Plaintiff has not alleged Trustee Corps acted as anything other than a trustee in a non-judicial foreclosure sale pursuant to a deed of trust. Therefore, by the plain language of Cal. Civ. Code § 2924(b), Trustee Corps is not subject to the RFDCPA,*fn10 and plaintiffs cause of action under that statute fails.

E) Federal Real Estate Settlement Procedures Act

Plaintiff alleges Trustee Corps "violated provisions of . . . [The Real Estate Settlement Procedures Act ("RESPA")], 12 U.S.C. §§ 2601-2617." (Compl. ¶ 21.) RESPA protects consumers from unnecessarily high settlement charges and abusive mortgage practices. See 12 U.S.C. § 2601 (2009). To effectuate these objectives, RESPA requires advance disclosure of settlement costs, the elimination of kickbacks or referral fees, and a reduction of the amount that buyers are required to place in escrow accounts for taxes and insurance. Id. §§ 2601(b) (2008). Plaintiff does not specify what specific provision(s) of RESPA Trustee Corps violated, nor does plaintiff state what Trustee Corps allegedly did in violation of the statute. Neither defendant or the Court is required to guess as to the manner in which defendant's conduct allegedly violated RESPA, Assoc. Gen. Contractors, 459 U.S. at 526, and his conclusory allegation of a RESPA violation is insufficient to withstand a motion to dismiss.*fn11

F) Predatory Lending Claims

Plaintiff's second cause of action for predatory lending states that it is "as to all named defendants." The claim contains no charging allegations against Trustee Corps, however, and merely alleges Downey "the initial lender, has engaged in predatory lending practices with respect to Plaintiff in violation of the Home Ownership and Equity Protection Act ("HOEPA"), 15 U.S.C. §§ 1637, the Truth In Lending Act ("TILA"), 15 U.S.C. § 1601, Regulation Z, 12 C.F.R. 226, and the Federal Trade Commission Act (FTC Act"), 15 U.S.C. §§ 41-58. . . ." (Compl., ¶ 24.) Plaintiff also does not specify which provisions of the federal laws cited were allegedly violated. The Complaint concedes that the "specifics" of the violations are unknown, but will be added to the complaint "when ascertained." (Compl. ¶ 24.) As previously stated, "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl., 550 U.S. at 555. Plaintiff's allegations are by definition speculative, and do not even rise to the level of "a short and plain statement of the claim showing that the pleader is entitled to relief," as required by Fed. R. Civ. P. 8(a)(2). Accordingly, the Court dismisses plaintiff's predatory lending claims.

G) RICO Claims

Plaintiff's final cause of action arises under the Racketeering Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961 et seq. To state a civil claim under RICO (18 U.S.C. § 1964), a complaint must allege (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity (known as "predicate acts") (5) causing injury to plaintiff's' business or property. Living Designs, Inc. v. E.I. DuPont de Nemours & Co., 431 F.3d 353, 361 (9th Cir. 2005). Plaintiff's RICO allegations are deficient.

First, plaintiff has insufficiently pled the predicate acts constituting the alleged RICO violations. Plaintiff's RICO claim merely incorporates the preceding allegations in the complaint and offers conclusory allegations of "attempts to collect unlawful debts," "mail fraud," "interference with commerce, robbery, or extortion," and "fraud in the sale of securities," all enumerated as predicate acts of "racketeering activity" by 18 U.S.C. § 1961 (2009). He has pled no facts to demonstrate how defendants committed these offenses. This type of "shotgun" pleading is insufficient to plead a RICO claim. Savage v. Council on American-Islamic Rels., Inc., 2008 U.S. Dist. LEXIS 60545, *39-40 (N.D. Cal. July 25, 2008) (finding a RICO claim was insufficient wherein plaintiff set forth "a redundant narrative of allegations and conclusions of law, but makes no attempt to allege what facts are material to his claims under the RICO statute, or which facts are used to support what claims under particular subsections of RICO.") Moreover, plaintiff's allegation of mail fraud does not comply with the heightened pleading standard of Fed. R. Civ. P. 9(b), which applies to predicate acts of fraud for a RICO claim. Lancaster Community Hosp. v. Antelope Valley Hosp. Dist., 940 F.2d 397, 405 (9th Cir. 1991). This heightened standard requires that plaintiff detail with particularity the time, place and manner of each act of fraud, plus the role of each defendant in each scheme. Id. Plaintiff's complaint fails to provide any facts regarding the time and place of each act of fraud and the roles of each defendant in those acts.

Trustee Corps also argues plaintiff has failed to allege an injury compensable under Section 1964(c). That section confers standing to bring civil RICO claims only upon those persons "injured in [their] business or property" by a RICO violation. 18 U.S.C. § 1964(c) (2009). "Under § 1964(c), a RICO plaintiff must allege a direct causal link between his injury and the defendant's violation." Wagh v. Metris Direct, Inc., 348 F.3d 1102, 1110 (9th Cir. 2003) overruled on other grounds by Odom v. Microsoft Corp., 486 F.3d 541, 550 (9th Cir. 2007). Plaintiff merely alleges his damages arise from a defendants' "pattern of unlawful activity." (Compl. ¶ 14-15.) He does not identify the unlawful activity that caused the damages. Accordingly, plaintiff's RICO claims are dismissed.

V. Trustee Corps' Motion For Summary Judgment

Because Trustee Corps' motion to dismiss plaintiff's complaint under Fed. R. Civ. P. 12(b)(6) has been granted in its entirety, Trustee Corps' motion for summary judgment, brought as an alternative to the motion to dismiss, is DENIED AS MOOT.

CONCLUSION

For the reasons stated herein: (1) FDIC's motion to substitute party is GRANTED; (2) FDIC'S request for judicial notice is GRANTED; (3) FDIC's Motion to Stay Proceedings is granted for 90 days, up to and including June 10, 2009. The FDIC shall submit a written status report to the Court no later than May 27, 2009 advising the Court of whether the FDIC gave plaintiff notice of the FIRREA claims process and whether plaintiff has filed an administrative claim under FIRREA; (4) Downey's Motion to Dismiss plaintiff's complaint is DENIED AS MOOT. The FDIC may re-file the motion to dismiss after the expiration of the stay, if it deems such action to be appropriate; (5) Trustee Corps' request for judicial notice is GRANTED; (6) Trustee Corps' Motion to Dismiss plaintiff's complaint is GRANTED; and (7) Trustee Corps' Motion for Summary Judgment is DENIED AS MOOT.

Plaintiff shall file a First Amended Complaint against Trustee Corps no later than thirty (30) days from the date of this order.

IT IS SO ORDERED.


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