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Ibarra v. Plaza Home Mortgage

September 4, 2009

RAMON PLASCENCIA IBARRA, PLAINTIFF,
v.
PLAZA HOME MORTGAGE; MASON FINANCIAL; INDYMAC FEDERAL BANK; AND ALL OTHER CLAIMANTS OF WHATSOEVER KIND AND CHARACTER AGAINST REAL PROPERTY COMMONLY KNOWN AS 6327 NEWSOME DRIVE, SAN DIEGO, CA 92116 APN 473-571-04-00; 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 DEFENDANT FDIC'S MOTION FOR JUDGMENT ON THE PLEADINGS

On August 7, 2009, Defendant Federal Deposit Insurance Corporation ("FDIC") as Receiver for IndyMac, F.S.B. and as Receiver for IndyMac Federal Bank, FSB (the "FDIC-Receiver"), filed a motion for judgment on the pleadings. (Doc. No. 35.) Plaintiff Ramon Plascencia Ibarra filed a response in opposition on August 24, 2009. (Doc. No. 37.) Defendant FDIC filed a reply on August 31, 2009. (Doc. No. 41.)

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 Defendant FDIC's motion for judgment on the pleadings.

Background

Plaintiff Ramon Plascencia Ibarra instituted this action against Defendants Plaza Home Mortgage ("Plaza"), Mason Financial ("Mason"), and IndyMac Federal Bank ("IndyMac") arising out of foreclosure proceedings on his home. Plaintiff alleges causes of action for: (1) violation of the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2605 et seq.; (2) violation of the Truth in Lending Act ("TILA"), 15 U.S.C. §1601 et seq.; (3) violation of California Civil Code §1632 et seq.; (4) negligent misrepresentation; (5) rescission; and (6) unjust enrichment. (Doc. No. 1, Compl.)

Plaintiff alleges that he resides at 6327 Newsome Drive, San Diego, California ("Subject Property") and that he entered into a loan transaction with Defendant Plaza, as the originating lender, on December 8, 2006. (Compl. ¶¶ 1, 2, 14.) Plaintiff alleges that Defendant Mason was the broker involved in the origination of the loan and that IndyMac is the servicer of the loan. (Id. ¶¶ 3, 4, 5.) Plaintiff alleges that he obtained the loan at the request of Mason Financial and Plaza and that Defendants committed wrongful acts before the initiation of the loan and during the servicing period of the loan. (Id. ¶¶ 14-15.) Plaintiff alleges that prior to the funding of the loan, Mason and/or Plaza represented to Plaintiff that very favorable loans, loan terms and interest rates were available to him and that as a result, Mason and Plaza convinced Plaintiff to refinance the loan on the Subject Property and take on a new loan with Plaza. (Id. ¶ 15.) Plaintiff alleges, on information and belief, that "Mason, Plaza 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 "Mason, Plaza 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. ¶ 15.)

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. ¶ 16.) 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. ¶ 17.) Plaintiff alleges, on information and belief, that the loan and related contracts contain conflicting terms that are not reasonably amenable to understanding by a consumer. (Id. ¶ 18.) Plaintiff alleges that IndyMac and other defendants purchased or otherwise acquired unknown rights and/or responsibilities relating to the loan from Plaza at some unknown date and that all defendants are directly, jointly and severally liable for the actions of Mason, Plaza, and IndyMac. (Id. ¶ 21.)

On February 9, 2009, the Court granted a joint motion to substitute the FDIC in the place of IndyMac Federal Bank, FSB in this action as on July 11, 2008, the Office of Thrift Supervision closed IndyMac Bank, FSB, appointed the FDIC as Receiver for IndyMac Bank, FSB under 12 U.S.C. §§ 1464(d)(2)(A) and 1821(c)(5), chartered a new institution, IndyMac Federal Bank, FSB, and appointed the FDIC as Conservator to operate the institution. (Doc. No. 26.) The FDIC now seeks judgment on the pleadings pursuant to Fed. R. Civ. Pro. 12(c).

Discussion

I. Standard for Judgment on the Pleadings

Defendant FDIC-Receiver has moved for judgment on the pleadings under Fed. R. Civ. Pro. 12(c), which is treated the same as a motion to dismiss for failure to state a claim under Fed. R. Civ. Pro. 12(b)(6). Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir. 1980). A motion for judgment on the pleadings under Rule 12(c) "shall be granted when it appears that moving party is entitled to judgment as a matter of law." Geraci v. Homestreet Bank, 347 F.3d 749, 751 (9th Cir.2003).

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). In addition, a court ruling on a motion to dismiss may consider facts that are subject to judicial notice under Fed. R. Evid. 201. See Lee v. City of Los Angeles, 250 F.3d 668, 689--90 (9th Cir.2001). Plaintiff has submitted three letters sent to IndyMac as Qualified Written Requests, which are referred to in the complaint and no party questions the authenticity of the copies submitted by Plaintiff. (Doc. No. 37, Quintana Decl. Exs. A-C.) Plaintiff also requests the Court take judicial notice of certain documents issued by the California Department of Real Estate and the California Department of Consumer Affairs. (Doc. No. 37, RJN.) The Court declines to take judicial notice of these documents, as Plaintiff has not established how these documents are properly subject to judicial notice under Fed. R. Evid. 201.

A. RESPA

Plaintiff's first cause of action against FDIC-Receiver is for a violation of the federal Real Estate Settlement Procedures Act (RESPA), 12 U.S.C. § 2605. (Compl. ¶¶ 26-31.) The Federal Real Estate Settlement Procedures Act ("RESPA") requires that "[i]f any servicer of a federally related mortgage loan receives a qualified written request from the borrower (or an agent of the borrower) for information relating to the servicing of such loan, the servicer shall provide a written response acknowledging receipt of the correspondence within 20 days . . . unless the action requested is taken within such period." 12 U.S.C. §2605(e)(1)(A). RESPA also provides that, "[e]ach servicer of any federally related mortgage loan shall notify the borrower in writing of any assignment, sale, or transfer of the servicing of the loan to any other person" and that "[d]uring the 60-day period beginning on the effective date of transfer of the servicing of any federally related mortgage loan, a late fee may not be imposed ...


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