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Calderon v. Endres

July 7, 2009

AXEL E. CALDERON; AND PAULA E. RIVERA, PLAINTIFF,
v.
DAVID R. ENDRES, APC; DEUTSCHE BANK NATIONAL TRUST COMPANY; ETS SERVICES, LLC; NEW CENTURY MORTGAGE CORPORATION; NC INSURANCE SERVICES, INC. DBA HOME 123 INSURANCE SERVICES; THE ENDRES LAW FIRM; AND DOES 1 THROUGH 10, DEFENDANTS.



The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court

ORDER GRANTING DEFENDANT DEUTSCHE BANK'S MOTION TO DISMISS

On April 27, 2009, Defendant Deutsche Bank National Trust Company as Trustee under Pooling and Servicing Agreement dated as of March 1, 2007 Securitized Asset Backed Receivables LLC Trust 2007-BR1 ("Deutsche Bank"), erroneously named as "Deutsche Bank National Trust Company," removed this case from the California Superior Court in and for the County of San Diego. (Doc. No. 1.) On April 28, 2009, Defendant Deutsche Bank filed a motion to dismiss Plaintiffs Axel Calderon and Paula Rivera's ("Plaintiffs") first amended complaint ("FAC"). (Doc. No. 2.) Plaintiffs, proceeding pro se, did not file a response in opposition.

The Court, pursuant to its discretion under Local Rule 7.1(d)(1), determined this matter is appropriate for resolution without oral argument and submitted the matter on the papers on June 25, 2009. (Doc. No. 6.) For the reasons set forth below, the Court grants Defendant Deutsche Bank's motion to dismiss.

Background

Plaintiffs' FAC arises from foreclosure proceedings on their home. The caption on Plaintiffs' FAC lists causes of action for (1) request for promissory note; (2) violation of GAAP, RESPA, TILA and California UCC; and (3) violation of the Fair Debt Collection Practices Act. (Doc. No. 1, Ex. A, FAC.) It also appears from Plaintiffs' FAC that Plaintiffs allege a violation of California Civil Code § 2923.5. (Id.)

In or about October 10, 2006, Plaintiffs sought and obtained a refinance loan secured by real property located at 672 Elaine Avenue, Oceanside, California 92057 (the "Property"). (Id. at 1-2; Doc. No. 2, Ex. 1.) Plaintiffs executed an Adjustable Rate Note ("Note") promising to repay $504,000 to Defendant New Century Mortgage Corporation, which was secured by a Deed of Trust on the Property. (Doc. No. 2, Exs. 1 & 2.) The Deed of Trust was recorded in the San Diego County Recorder's Office at Document No. 2006-0750689 on October 23, 2006. (Id. Ex. 2.) The Deed of Trust provided that Mortgage Electronic Registration Systems, Inc. was acting as nominee for the lender as beneficiary under the security agreement. (Id. Ex. 2.)

On August 16, 2007, due to Plaintiffs' failure to comply with the terms of the Loan, foreclosure proceedings against the Property were initiated with the recording of a Notice of Default and Election to Sell Under Deed of Trust ("Notice of Default") in the San Diego County Recorder's Office at Document No. 2007-0547738. (Id. Ex. 3.) A substitution of Trustee was recorded in the San Diego County Recorder's Office on May 6, 2008, at Document No. 2008-0241642, which substituted Defendant Executive Trustee Services, LLC as the new Trustee under the Deed of Trust. (Id. Ex. 4.) On August 8, 2008, a Notice of Trustee's Sale was recorded at Document No. 2008-0424152 in the San Diego County Recorder's Office. (Id. Ex. 5.) The foreclosure sale occurred on October 1, 2008, where Defendant Deutsche Bank purchased the Property. (Id. Ex. 6.) The Trustee's Deed Upon Sale was recorded in the San Diego County Recorder's Office on October 21, 2008 at Document No. 2008-0546596. (Id. Ex. 6.)

Plaintiffs filed their amended complaint on January 30, 2009. (Doc. No. 1, Ex. A, FAC.) Defendant Deutsche Bank now moves to dismiss Plaintiffs' FAC for failure to state a claim upon which relief may be granted. (Doc. No. 2.) Defendant Deutsche Bank also filed a request for judicial notice of the various documents filed with the San Diego County Recorder's Office and a copy of a Debt Elimination Scams alert published by the Office of the Comptroller of Currency. (Doc. No. 2, Exs. 1-7.)

Discussion

I. Motion to Dismiss Pursuant to 12(b)(6)

A motion to dismiss a complaint under Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the claims asserted in the complaint. Navarro v. Black, 250 F.3d 729, 731 (9th Cir. 2001). A complaint generally must satisfy only the minimal notice pleading requirements of Federal Rule of Civil Procedure 8(a)(2) to evade dismissal under a Rule 12(b)(6) motion. Porter v. Jones, 319 F.3d 483, 494 (9th Cir. 2003). Rule 8(a)(2) requires that a pleading stating a claim for relief contain "a short and plain statement of the claim showing that the pleader is entitled to relief." The function of this pleading requirement is 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 (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 Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964--65 (2007). A complaint does not "suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting id. at 556). "Factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 127 S.Ct. at 1965 (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235--36 (3d ed. 2004)). "All allegations of material fact are taken as true and construed in the light most favorable to plaintiff. However, conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss for failure to state a claim." Epstein v. Wash. Energy Co., 83 F.3d 1136, 1140 (9th Cir.1996); see also Twombly, 127 S.Ct. at 1964--65. "Generally, a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion." Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir.1990). The court may, however, consider the contents of documents specifically referred to and incorporated into the complaint. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir.1994). In evaluating a motion to dismiss, a court may consider evidence on which the complaint "necessarily relies" as long as: (1) the complaint refers to the document; (2) the document is central to the plaintiff's claim; and (3) no party questions the authenticity of the copy attached to the 12(b)(6) motion. Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006). Additionally, the Court may take judicial notice of matters of public record. See Lee v. City of Los Angeles, 250 F.3d 668, 689--90 (9th Cir.2001). Thus, the Court takes judicial notice of the various documents filed with the San Diego County Recorder's Office that are specifically referred to in Plaintiffs' FAC and that are publicly filed documents.

Plaintiffs' FAC is not an organized pleading enumerating causes of action and pleading facts supporting such causes of action, but a series of paragraphs appearing to discuss actions taken by various defendants named by the FAC interposed with quotations and citations to various legal sources, many of which appear to be non-binding authority on this Court. The Court, therefore, addresses the listed causes of action in the FAC caption and other possible causes of action raised by Plaintiffs in the FAC.

A. Request for Promissory Note

Plaintiffs' FAC states, "Plaintiff is requesting as to who has the original signed, and sealed promissory note executed by Plaintiff in reference to the 'property' and this must be answered therefore Plaintiff under the Federal Statutes has the right to demand the location of their 'note.'" (Doc. No. 1, Ex. A, FAC at 3.) Plaintiffs do not indicate what "Federal Statutes" they are referring to, but Plaintiffs do cite to the Uniform Commercial Code ยง 3-309, which addresses when a person not in possession ...


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