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Fuentes v. Duetsche Bank

July 8, 2009


The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge



On December 10, 2008, Plaintiff Debbie Fuentues ("Plaintiff") initiated an action in San Diego Superior Court against Defendants Duetsche Bank Trust Americas ("Deutsche Bank"), Homecomings Financial Network ("Homecomings"), First Metropolitan Mortgage, and Does 1-20 (inclusive) alleging claims in contract, violation of Cal. Civ. Code. § 2923.6, violation of 15 USC § 1611,et seq. ("Truth in Lending Act" or "TILA"), violations of 15 USC § 1692 and Cal. Civ. Code. § 1788, as well as claims for quiet title and declaratory relief.

On March 13, 2009, Defendant Duetsche Bank filed a Notice of Removal to bring this case into federal court. (Doc. No. 1.) Jurisdiction is proper under 28 USC § 1331 (federal question) as Plaintiff asserts claims arising under 15 USC § 1611 et seq. and 15 USC § 1692. Plaintiff did not oppose removal.

On March 26, 2009, Defendants Duetsche Bank and Homecomings jointly filed a motion for Judgment on the Pleadings pursuant to FRCP Rule 12(c), requesting dismissal with prejudice of all of Plaintiff's claims. (Doc. No. 7). On April 27, 2009, Plaintiff filed a response in opposition to the motion (Doc. No. 9) and on May 7, 2009, Duetsche Bank and Homecomings replied to the opposition. (Doc. No. 10). The court hereby GRANTS the motion for the following reasons.


Plaintiff entered into an agreement to purchase the real property located at 4169 Florida Street, San Diego, CA in April, 2006. Plaintiff financed the property by entering into a mortgage with Homecomings, which was secured by a Deed of Trust. It appears as though Homecomings was the servicer of this loan, and that Plaintiff also entered into a separate mortgage with First Metro (not at issue here). On or about December 1, 2006, Plaintiff defaulted on the loan. On March 8, 2006, Executive Trustee Services ("ETS"), as an agent for the beneficiary under the Deed of Trust recorded a Notice of Default. The property was then sold at public auction on November 29, 2007, and ETS issued a Trustee's Deed conveying title in the subject property to Deutsche Bank. Deutsche Bank's interest in the loan is unclear, but it has been described as a "trustee" of the loan.

Legal Standard

A Rule 12(c) motion is proper when there are no issues of material fact, and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 12(c). The standard for granting a 12(c) motion is essentially identical to the standard for granting a motion under Fed. R. Civ. P. 12(b)(6). The court must assume the truthfulness of the material facts alleged in the complaint and must construe any reasonably drawn inferences in favor of the responding party. Fed. R. Civ. P. 12(c). However, in order to survive a 12(c) motion the Plaintiff's grounds for relief must contain more than mere labels, conclusions, and formulaic recitations of the elements of a cause of action. Bell Atlantic Corp. v. Twombly, 550 US 544, 555 (2007). In addition, facts subject to judicial notice may be considered by the court. Mullis v. United States Bank, 828 F.2d 1385, 1388 (9th Cir. 1987).

Fed. R. Civ. P. 15(a) provides that a complaint may be amended after a party files a responsive pleading. A party may amend a complaint only with leave of the court or with the opposing party's written consent, and leave should be granted by the court "when justice so requires." Id. However, the decision to grant leave to amend rests with the sole discretion of the court. Pisciotta v. Teledyne Industries, 91 F.3d 1326, 1331 (9th Cir. 1990). The court may take five factors into account: (1) bad faith, (2) undue delay, (3) prejudice to the opposing party, (4) futility of amendment, and (5) whether the plaintiff has previously amended the complaint. Johnson v. Buckley, 356 F.3d 1067. Prejudice to the opposing party is the most important factor. Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990).


1. Breach of the Covenant of Good Faith and Fair Dealing (claim 2)

Plaintiff alleges that both Deutsche Bank and Homecomings breached their duty of good faith and fair dealing by: (1)offering Plaintiff an unconscionably low introductory rate devised to induce Plaintiff to accept the loan, then fail in her payments, and (2) refusing to "work out" a plan for the mortgage.

Plaintiff has not established that Defendants owed her a duty of good faith, nor articulated behavior which would constitute a breach of that duty. First, Plaintiff's claim that Defendants breached their duty to Plaintiff by offering the low, "teaser" rate does not constitute a valid claim. The duty of good faith and fair dealing is limited to good faith in enforcement and performance of the contract. Price v. Wells Fargo Bank, 213 Cal.App.3d 465, 479. ...

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