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Costantini v. Wachovia Mortgage FSB

June 23, 2009

VICTORIA B. COSTANTINI, PLAINTIFF,
v.
WACHOVIA MORTGAGE FSB F/K/A WORLD SAVINGS BANK; GOLDEN WEST SAVINGS ASSOCIATION SERVICE CO.; CALIFORNIA RECONVEYANCE COMPANY; LONG BEACH MORTGAGE COMPANY; WASHINGTON MUTUAL BANK; AND DOES 1 TO 100, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

MEMORANDUM AND ORDER

Faced with non-judicial foreclosure on her residence, Plaintiff Victoria B. Costantini ("Plaintiff") seeks through the present action to rescind her mortgage loan and to obtain statutory damages for violations of the Truth in Lending Act, 15 U.S.C. § 1601 et seq. ("TILA") she alleges occurred at the time her loan was originated. Plaintiff also seeks damages for violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA").

Finally, her Complaint includes a cause of action seeking declaratory and injunctive relief under California's Unfair Competition Law, California Business and Professions Code § 17200, et seq. ("UCL").

Defendant Washington Mutual Bank, in its own capacity and as successor-in-interest to Long Beach Mortgage Company ("Washington Mutual") now moves to dismiss Plaintiff's claims in accordance with the provisions of Federal Rule of Civil Procedure 12(b)(6). Washington Mutual concurrently requests that the lis pendens recorded by Plaintiff on the subject property be expunged on grounds that Plaintiff's claims have no merit. Plaintiff has filed no opposition to either Motion. Given the non-opposition, and for the reasons set forth below, Washington Mutual's Motions will be granted.

BACKGROUND

On or about July 6, 2005, Plaintiff borrowed $312,000.00 from Long Beach Mortgage Company pursuant to a promissory note secured by a Deed of Trust on real property located at 53-55-57 West 3rd Street, Stockton, California 95206 ("Subject Property"). Request for Judicial Notice, Ex. A.*fn1

Washington Mutual subsequently acquired the beneficial interest under the promissory note and Deed of Trust as successor-in-interest to Long Beach Mortgage Company. Thereafter, on or about August 19, 2008, Washington Mutual substituted Defendant California Reconveyance Company as the Trustee under the Deed of Trust by recording a Substitution of Trustee. Request for Judicial Notice, Ex. B. That same day non-judicial foreclosure against the subject property was commenced by California Reconveyance by recording and serving a Notice of Default and Election to Sell Under Deed of Trust. Request for Judicial Notice, Ex. C.

Plaintiff instituted the present action on February 12, 2009. Aside from Washington Mutual Bank, none of the other Defendants have appeared and there is no indication in the Docket that service has been effectuated upon them.

STANDARD

On a motion to dismiss for failure to state a claim under Rule 12(b)(6), all allegations of material fact must be accepted as true and construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," in order to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed. 2d 80 (1957).

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the "grounds" of his "entitlement 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. Corp. v. Twombly, 2007 U.S. LEXIS 5901, 20-22 (U.S. 2007) (internal citations and quotations omitted). Factual allegations must be enough to raise a right to relief above the speculative level. Id. at 21 (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004) ("The pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action").

If the court grants a motion to dismiss a complaint, it must then decide whether to grant leave to amend. The court should "freely give[]" leave to amend when there is no "undue delay, bad faith[,] dilatory motive on the part of the movant, . . . undue prejudice to the opposing party by virtue of . . . the amendment, [or] futility of the amendment. . . ." Fed. R. Civ. P. 15(a); Foman v. Davis, 371 U.S. 178, 182 (1962). Generally, leave to amend is only denied when it is clear that the deficiencies of the complaint cannot be cured by amendment. DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992).

ANALYSIS

A. Plaintiff's First and Second Claims are ...


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