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Vivo v. IndyMac Bank

June 10, 2009

MIGUEL DE VIVO
v.
INDYMAC BANK, FSB, ET AL.



The opinion of the court was delivered by: The Honorable Percy Anderson, United States District Judge

CIVIL MINUTES - GENERAL

Proceedings: IN CHAMBERS - COURT ORDER

Before the Court is a motion to dismiss ("Motion") filed by defendant Federal Deposit Insurance Corporation ("FDIC"), acting in its capacity as Receiver for defendant IndyMac Bank FSB, and by defendant Mortgage Electronic Registration Systems, Inc. ("MERS") (collectively "Moving Defendants"). (Docket No. 6.) Plaintiff Miguel De Vivo ("Plaintiff") has not filed an opposition to the Motion. Pursuant to Rule 78 of the Federal Rules of Civil Procedure and Local Rule 7-15, the Court finds that this matter is appropriate for decision without oral argument. The hearing calendared for June 1, 2009, is vacated, and the matter taken off calendar.

I. Factual Background

Plaintiff alleges that on December 31, 2005, he borrowed $480,000 from IndyMac Bank, FSB, secured by a deed of trust to his home. (Compl. ¶ 17.) He alleges that although he made his monthly payments, he was declared in default, and his property was sold at a foreclosure sale on January 30, 2009. (Compl. ¶¶ 19--25.) Plaintiff filed suit in state court against IndyMac Bank, FSB, MERS, and NDEx West, LLC ("NDEx"). In his complaint ("Complaint"), Plaintiff alleges failures to disclosure under the Truth in Lending Act, ("TILA") 15 U.S.C. § 1601, et seq., violation of the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2605(e), violation of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692--1692o, and violation of several state laws, and brings claims for (1) "wrongful foreclosure," (2) declaratory relief, (3) unfair business practices, (4) quiet title, (5) fraud, (6) unconscionability, (7) breach of the covenant of good faith and fair dealing, (8) accounting, and (9) injunctive relief.*fn1 MERS and FDIC, as Receiver for IndyMac Bank, FSB, removed to this Court pursuant to 28 U.S.C. § 1441(b).

On July 11, 2008, the Office of Thrift Supervision ("OTS"), a federal bank regulatory office within the United States Department of the Treasury, closed IndyMac Bank, FSB ("IndyMac Bank"), and appointed FDIC as the bank's Receiver pursuant to 12 U.S.C. §§ 1464(d)(2)(A) and 1821(c)(5). (Mot., Quick Decl. ¶¶ 2, 3, Ex. 1.) Also on July 11, 2008, the OTS charted a new institution, IndyMac Federal Bank, FSB ("IndyMac Federal Bank"), to which it transferred all of the insured deposits and substantially all of the assets of IndyMac Bank. (Quick Decl. ¶ 2, Ex. 1.) The OTS initially appointed FDIC as conservator to operate IndyMac Federal Bank. (Id.). However, on March 19, 2009, the OTS appointed FDIC as Receiver, not just conservator, for IndyMac Federal Bank. (Quick Decl. ¶ 4, Ex. 2.) On May 26, 2009, the Court granted FDIC's motion to substitute as a defendant in place of IndyMac Bank, in its capacity as Receiver for both IndyMac Bank and IndyMac Federal Bank. (See Docket No. 10.) FDIC and MERS now move to dismiss Plaintiff's Complaint on the grounds that the Court lacks jurisdiction as to claims against FDIC, and that the Complaint fails to state a claim upon which relief may be granted.

II. Standard on Motion to Dismiss

Under Federal Rule of Civil Procedure 12(b)(1), a complaint may be dismissed for lack of jurisdiction over the subject matter of the action. Federal courts have subject matter jurisdiction only over matters authorized by the Constitution and Congress. See, e.g., Kokkonen v. Guardian Life Ins. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed. 2d 391 (1994). In seeking to invoke this Court's jurisdiction, Plaintiff bears the burden of proving that jurisdiction exists. Scott v. Breeland, 792 F.2d 925, 927 (9th Cir. 1986). When moving under Rule 12(b)(1), a party may either show that the allegations of the complaint, taken as true, are insufficient to invoke federal jurisdiction, or present evidence that disputes allegations that, by themselves, would otherwise be sufficient to invoke jurisdiction. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004).

Additionally, plaintiffs in federal court are required to give only "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). While Federal Rule of Civil Procedure 12(b)(6) allows a court to dismiss a cause of action for "failure to state a claim upon which relief can be granted," the Rules also require all pleadings to be "construed so as to do substantial justice." Fed. R. Civ. P. 8(e). The purpose of Rule 8(a)(2) is to "'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964, 167 L.Ed. 2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103, 2 L.Ed. 2d 80 (1957)). "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. at 555--56, 127 S.Ct. at 1965 (citations omitted); Daniel v. County of Santa, 288 F.3d 375, 380 (9th Cir. 2002) ("'All allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party.'") (quoting Burgert v. Lokelani Bernice Pauahi Bishop Trust, 200 F.3d 661, 663 (9th Cir. 2000)). For a complaint to survive a motion to dismiss, it must contain "only enough facts to state a claim to relief that is plausible on its face."

Twombly, 550 U.S. at 570, 127 S.Ct. at 1974. The Ninth Circuit is particularly hostile to motions to dismiss under Rule 12(b)(6). See, e.g., Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 248--49 (9th Cir. 1997) ("The Rule 8 standard contains a powerful presumption against rejecting pleadings for failure to state a claim.") (internal quotation omitted).

III. Analysis

Plaintiff filed no opposition to the Motion. Pursuant to Local Rule 7-12, the failure to file a required paper may be deemed consent to the granting of a motion. Moreover, Moving Defendants prevail on the merits.

A. Claims Against FDIC

FDIC asserts that the Court should dismiss the claims against FDIC pursuant to Federal Rule of Civil Procedure 12(b)(1) because the Court lacks subject matter jurisdiction. Under the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 ("FIRREA"), Pub. L. No. 101-73, 103 Stat. 183 (August 9, 1989), Congress enacted a statutory scheme granting FDIC authority to act as Receiver for failed financial institutions, and granted FDIC special powers to carry out that function. As Receiver, FDIC is the successor-in-interest to IndyMac Bank, assuming "all rights, titles, powers, and privileges," of IndyMac Bank. 12 U.S.C. § 1821(d)(2)(A)(i). Additionally, FDIC took over operation of IndyMac Bank, including taking over its assets, collecting all money due, and paying all valid obligations. 12 U.S.C. §§ 1821(d)(2)(B)(i) (FDIC may "take over the assets and operate the insured depository institution with all the powers of the members or shareholders, ...


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