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Llaban v. Carrington Mortgage Services

September 3, 2009

ALLAN LLABAN, AN INDIVIDUAL, PLAINTIFF,
v.
CARRINGTON MORTGAGE SERVICES, LLC., NEW CENTURY MORTGAGE CORPORATION, OLD REPUBLIC DEFAULT SERVICES, DEFENDANTS.



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

ORDER GRANTING MOTION TO DISMISS THE COMPLAINT

On July 7, 2009, Plaintiff Allan Llaban, appearing pro se, filed a complaint in state court alleging deceptive and unfair trade practices, violations of the Truth in Lending Act (TILA), the Real Estate Settlement Procedures Act (RESPA), and the Home Ownership and Equity Protection Act (HOEPA), and seeking injunctive and declaratory relief. (Doc. 1, Ex. 1.) On July 31, 2009, Defendants Carrington Mortgage Services, LLC., New Century Mortgage Corporation, Old Republic Default Services removed this action to federal court pursuant to 28 U.S.C. § 1441. (Doc. 1.) On August 6, 2009, Defendants filed a motion to dismiss Plaintiff's complaint for failure to state a claim. (Doc. 4.) Plaintiff did not file a response in opposition.

Pursuant to the Court's discretion under local Rule 7.1(d)(1), the Court determines this matter is appropriate for resolution without oral argument, and submits it on the pleadings. For the reasons set forth below, the Court GRANTS Defendants' motion to dismiss.

Background

Plaintiff Allan Llaban's complaint arises from threatened foreclosure proceedings against his home. On July 7, 2009, Plaintiff filed a complaint in the California Superior Court for the County of San Diego, asserting claims for deceptive and unfair trade practices, injunctive and declaratory relief, TILA, RESPA, and HOEPA violations, and failure to provide the truth in lending statement and good faith estimate within three business days as required by RESPA. (Doc. 1, Ex. 1.)

Plaintiff is the owner of real property located at 13345 Trailhead Place, San Diego, CA 92129 ("Property"). (Doc. 1, Ex. 1 ¶ 6.) On May 18, 2006, Plaintiff executed a Deed of Trust, securing a Promissory Note in the amount of $890,500,00 ("Loan"). (Doc. 4, Attach. 1, Ex. 1.) The Deed of Trust identifies the Lender as New Century Mortgage Corporation ("New Century"), and the Trustee as Old Republic Title Co ("Old Republic"). (Id.) New Century assigned the Deed of Trust to Deutsche Bank, and the assignment was recorded on September 18, 2007. (Doc. 4, Attach. 1, Ex. 2.)

On May 2, 2008, Old Republic recorded a Notice of Default on the Loan in the amount of $46,765.21. (Doc. 4, Attach. 1, Ex. 3.) On June 27, 2008, Deutsche Bank substituted in Old Republic Default Management Services ("Old Republic Default") as Trustee. (Doc. 4, Attach. 1, Ex. 4.) On January 28, 2009, Old Republic Default recorded a Notice of Trustee's Sale, setting the sale date for February 17, 2009. (Doc. 4, Attach. 1, Ex. 5.) The sale was postponed until July 8, 2009. (Doc. 1, Ex. 1 ¶ 7.)

On July 7, 2009, one day before the scheduled sale, Plaintiff filed a complaint in the California Superior Court for the County of San Diego. (Doc. 1, Ex. 1.) Plaintiff asserted claims for (1) deceptive and unfair trade practices, (2) injunctive and declaratory relief, (3) violations of TILA, RESPA, and HOEPA, and (4) failure to provide Plaintiff with the truth in lending statement and good faith estimate within three business days as required by RESPA. (Doc. 1, Ex. 1.) On July 31, 2009 Defendants removed the case to this Court pursuant to 28 U.S.C. § 1441(b). (Doc. 1.)

Defendants now move to dismiss Plaintiff's complaint for failure to state a claim. (Doc. 4.) In support of their motion, Defendants ask the Court to take judicial notice of five documents: (1) a copy of the Deed of Trust encumbering the Property, recorded on May 25, 2006; (2) a copy of an Assignment of the Deed of Trust, recorded on September 18, 2007; (3) a copy of the Notice of Default and Election to Sell Under Deed of Trust, recorded on May 2, 2008; (4) a copy of the Substitution of Trustee, recorded on January 28, 2009; and (5) a copy of a Notice of Trustee's Sale, recorded on January 28. 2009. (Doc. 4, Attach. 1.)

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, 555 (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 557). "Factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555 (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, 550 U.S. at 555.

"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). 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). Accordingly, the Court takes judicial notice of the documents provided by the Defendants, as ...


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