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Delino v. Platinum Community Bank

July 30, 2009

LIWAYWAY DELINO, PLAINTIFF,
v.
PLATINUM COMMUNITY BANK; PLAINTIFF'S FIRST MINT FINANCIAL; TAYLOR BEAN & AMENDED COMPLAINT WHITAKER MORTGAGE GROUP; ALL OTHER CLAIMANTS OF WHATSOEVER KIND AND CHARACTER AGAINST REAL PROPERTY COMMONLY KNOWN AS 1846 E. 8TH ST., NATIONAL CITY, CA 91950; APN 557-200-10-00; AND DOES 1 THROUGH 100, INCLUSIVE, DEFENDANTS.



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

ORDER GRANTING DEFENDANTS PLATINUM & TB&W'S MOTION TO DISMISS

On February 17, 2009, Defendant Taylor Bean & Whitaker Mortgage Corp. ("TB&W") removed this case from the Superior Court of California in and for the County of San Diego. (Doc. No. 1.) On May 21, 2009, the Court granted Defendants TB&W and Platinum Community Bank's ("Platinum") motion to dismiss the complaint with leave to amend. (Doc. No. 13.) On June 19, 2009, Plaintiff filed an Liwayway Delino filed a first amended complaint ("FAC"). (Doc. No. 14.) Defendants TB&W and Platinum moved to dismiss the FAC on July 6, 2009. (Doc. No. 16.) Plaintiff did not file a response in opposition. On July 21, 2009, Defendants TB&W and Platinum filed a reply noting that Plaintiff failed to oppose the motion.

(Doc. No. 18.)

The Court, pursuant to its discretion under Local Rule 7.1(d)(1), determines this matter is appropriate for resolution without oral argument and submits it on the parties' papers. For the reasons set forth below, the Court grants Defendants' motion to dismiss.

Background

Plaintiff's complaint arises from foreclosure proceedings on her home. Plaintiff alleges causes of action for (1) violation of RESPA, 12 U.S.C. § 2605 et seq.; (2) violation of Truth in Lending Act, 15 U.S.C. § 1601 et seq.; (3) violation of California Civil Code § 1632 et seq.; (4) negligent misrepresentation; (5) fraud; (6) rescission; (7) quasi-contract; and (8) determination of validity of lien. (Doc. No. 14, FAC.)

Plaintiff is the owner of real property commonly known as 1846 E. 8th Street, National City, CA 91950, County of San Diego (the "Property"). (Id. ¶ 1.) On or about March 16, 2007, Plaintiff, at the request of Defendant Mint Financial ("Mint"), Defendant Platinum and others, obtained loan # 10171 from Defendant Platinum. (Id.¶ 13.) Plaintiff alleges that Platinum was the originating lender, Mint was the broker, and TB&W was the servicer. (Id.¶¶ 2-4.) Plaintiff's FAC is based on alleged wrongful acts of the Defendants before the initiation of the loan as well as during the servicing period of the loan. (Id. ¶ 14.) Plaintiff alleges that "[p]rior to the funding of the loan, Mint and/or Platinum represented to Plaintiff that very favorable loans, loan terms and interest rates were available to him." (Id. ¶ 14.) "As a result, Broker [Mint], Platinum and others convinced Plaintiff to purchase the Subject Property and to take out on a loan for that purpose with Platinum." (Id. ¶ 14.) Plaintiff alleges, on information and belief, that "Mint, Platinum and Defendants knew or intended that Plaintiff receive a worse loan, and that the worse loan produced a higher commission for them because it was at a higher interest rate and subject to higher fees," and that "Mint, Platinum and Defendants knew or should have known that in the event of Plaintiff's inability to perform on the loan, prepayment penalties, commissions and other foreseeable charges to Plaintiff would constitute an additional payment stream to the benefit of Defendants." (Id. ¶ 14.)

Plaintiff alleges that despite these representations concerning the loan, the loan was not as represented because it was at a higher interest rate, the payments were higher than agreed upon, there was less equity in the Property than represented, there was less money available to Plaintiff than represented, and the loan became unaffordable for Plaintiff. (Id. ¶ 15.) Plaintiff further alleges that Defendants failed to provide Plaintiff a proper notice of the right to cancel at the time of the transaction and did not provide accurate disclosures of the costs of financing, APR, payment obligations, or the type of loan at the time of the transaction and subsequent to the time of transaction. (Id. ¶ 16.) Plaintiff alleges that the loan and related contracts contain conflicting terms that are not reasonably amenable to understanding by a consumer. (Id. ¶ 17.)

Plaintiff alleges that when Plaintiff discovered the false, misleading, and unlawful acts of Defendants that Plaintiff provided a notice of rescission and tendered performance by delivery of the deed conveying title to the Property to Platinum, but that Platinum failed to respond timely and therefore Defendants have forfeited any right of title or interest in the Property. (Id. ¶ 20.) According to Plaintiff, TB&W and Defendants "knew or should have known of the notice of rescission, and the dispute between Plaintiff, Mint, Platinum and other defendants, and that TBW purported to acquire rights in the Subject Premises only subject to the claims, offsets, and liabilities owned by any and all Defendants to Plaintiff." (Id. ¶ 21.) Plaintiff alleges that TB&W and other Defendants "purchased or otherwise acquired unknown rights and/or responsibilities relating to Plaintiff's loan from Platinum at some date unknown to Plaintiff." (Id. ¶ 22.) Plaintiff alleges that, "[a]ll Defendants are agents, employees and other fiduciaries of each other." (Id. ¶ 27.)

Based on the alleged misconduct, Plaintiff brought action against moving Defendants Platinum and TB&W for violations of state and federal law. Platinum and TB&W move to dismiss Plaintiff's FAC pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted.

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 ยง ...


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