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Tapia v. Aurora Loan Services

August 25, 2009

LORENA TAPIA, PLAINTIFF,
v.
AURORA LOAN SERVICES, LLC., DEFENDANT.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND

Plaintiff Lorena Tapia, appearing pro se and proceeding in forma pauperis, filed a complaint on June 30, 2009. Plaintiff names Aurora Loan Services, LLC, as Defendant. Although it is not entirely clear, Plaintiff is alleging that Defendant failed to disclose information regarding the terms of the mortgage agreement on property located at 17415 Brook Drive W., in Madera, California. It appears that Plaintiff is facing foreclosure or eviction from her home and is seeking injunctive and monetary relief, as well as an award of monetary damages. More particularly, Plaintiff has alleged a violation of California Civil Code section 2923.6, a violation of California Civil Code section 1788.17, a violation of California Civil Code section 1572. (Doc. 1 at 11-15.) Her fourth and fifth causes of action seek declaratory and injunctive relief. (Doc. 1 at 15-16.) Lastly, Plaintiff asserts a cause of action for "cancellation of instrument/foreclosure." (Doc. 1 at 16-17.)

DISCUSSION

A. Screening Standard

Pursuant to Title 28 of the United States Code Section 1915(e)(2), the court has reviewed the complaint for sufficiency to state a claim. The court must dismiss a complaint or portion thereof if the court determines that the action is legally "frivolous or malicious," fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). In reviewing a complaint under this standard, the Court must accept as true the allegations of the complaint in question (Hospital Bldg. Co. v. Trustees of Rex Hospital, 425 U.S. 738, 740 (1976)), construe the pro se pleadings liberally in the light most favorable to the Plaintiff (Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000)), and resolve all doubts in the Plaintiff's favor (Jenkins v. McKeithen, 395 U.S. 411, 421 (1969)).

A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . .." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusion are not. Id. at 1949.

B. Plaintiff's Allegations

1. Violation of California Civil Code Section 2923.6

Plaintiff asserts that Defendant has an obligation to modify the terms of her loan, and by failing to do so, Defendant has violated the provisions of California Civil Code section 2923.6. (Doc. 1 at 11-13.)

California Civil Code section 2923.5 requires a lender or its agent to attempt to contact a defaulted borrower prior to foreclosure. Subdivision (a)(2) of that section requires a "mortgagee, beneficiary or authorized agent" to "contact the borrower in person or by telephone in order to assess the borrower's financial situation and explore options for the borrower to avoid foreclosure." Subdivision (b) requires a default notice to include a declaration "from the mortgagee, beneficiary, or authorized agent" of compliance with section 2923.5, including attempt "with due diligence to contact the borrower as required by this section."

However, California Civil Code section 2923.5 does not require acceptance of a modification of a loan. Indeed, California Civil Code section 2923.6 states "It is the intent of the Legislature that the mortgagee, beneficiary, or authorized agent offer the borrower a loan modification or workout plan if such a modification or plan is consistent with its contractual or other authority." (Emphasis added.) The plain language of the statute - "if" - clearly means the statute does not require the lender to accept a loan modification. Plaintiff makes an assertion that she is "willing, able, and ready to execute a modification" of the loan on the terms expressly stated in her complaint. (Doc. 1 at 12.) However, as explained above, Defendant is not legally obligated to accept her offer of a modification of the loan.

Additionally, "[a] statute creates a private right of action only if the enacting body so intended." Grodensky v. Artichoke Joe's Casino, 171 Cal.App.4th 1399, 1420, 91 Cal.Rptr.3d 732 (2009). The Court finds that California Civil Code section 2923.6 does not create a cause of action for Plaintiff. Subdivision (a) of the section applies only to servicers and parties in a loan pool. Cal. Civ. Code, § 2923.6(a). Plaintiff does not allege that she is either a servicer or a party in a loan pool.

Plaintiff has failed to state a cognizable claim.

2. Violation of Rosenthal Fair Debt Collection Practices Act

Plaintiff asserts that Defendant has violated the Rosenthal Fair Debt Collection Practices Act ("RFDCPA") by harassment, oppression, and abuse, misrepresentation of the status of the debt, using unfair and unconscionable means to collect a debt, ...


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