Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Salondaka v. Countrywide Financial Corp.

September 18, 2009

JAMES SALONDAKA, PLAINTIFF,
v.
COUNTRYWIDE FINANCIAL CORPORATION, A BUSINESS ENTITY FORM UNKNOWN; COUNTRYWIDE HOME LOANS, INC., A BUSINESS ENTITY FORM UNKNOWN; ALL PERSONS OR ENTITIES UNKNOWN CLAIMING ANY LEGAL OR EQUITABLE RIGHT, TITLE ESTATE, LIEN OR INTEREST IN THE PROPERTY DESCRIBED IN THIS COMPLAINT ADVERSE TO PLAINTIFF'S TITLE THERETO, AND DOES 1 THROUGH 25, INCLUSIVE, DEFENDANTS.



ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

This matter is before the Court on Countrywide Financial Corporation ("CFC") and Countrywide Home Loans, Inc. ("CHL") (collectively "Defendants'"), motions to dismiss James Salondaka's ("Plaintiff's") Complaint pursuant to Federal Rules of Civil Procedure 9 and 12(b)(6), and Defendants' alternative motion to strike portions of the Complaint pursuant to Federal Rule of Civil Procedure 12(f) ("Motion to Strike"). Plaintiff opposes the Motions.

Plaintiff filed his Complaint on October 14, 2008 in Superior Court alleging sixteen state and federal causes of action related to the foreclosure of a property located at 3871 Iron Wheel Court, Rocklin, CA 95765 ("Subject Property"). See Complaint, Docket # 2, Exh. A. The action was removed to this Court on June 5, 2009. Notice of Removal, Docket # 2.

For the following reasons, Defendant's Motion to Dismiss the Complaint is GRANTED.*fn1

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff obtained a loan from defendant CHL to finance the purchase of the Subject Property in March 2006. Complaint, Docket # 2, Exh. A, ¶ 13. Plaintiff is Trustor of a Deed of Trust executed on June 19, 2006. Id. at ¶ 1. During the application process for the loan, CHL allegedly inflated Plaintiff's income to place him in an unaffordable loan, failed to provide a good faith estimate of the cost of the loan, failed to provide certain disclosures concerning adjustable rate mortgages, and misinformed Plaintiff about the interest rate on the mortgage. Id. at ¶¶ 14-17.

Plaintiff defaulted on the loan and Defendants caused to be recorded a Notice of Default with the Placer County Recorder's Office in or around June 2008. Id. at ¶ 19. A sale of the property was scheduled for October 15, 2008. Id. at ¶¶ 19, 25. Plaintiff sent Defendants a letter on October 13, 2008 purporting to cancel the loan agreement pursuant to 15 U.S.C. § 1635, Regulation Z § 226.23. Id. at ¶ 21.

Plaintiff filed this action alleging various fraud claims, breach of fiduciary duty, and negligence, as well as alleging violations of the Truth in Lending Act ("TILA"), the implied covenant of good faith and fair dealing ("Implied Covenant"), the Real Estate Settlement Procedures Act ("RESPA"), and California Civil Code §§ 1916.7, 1920 and 1921. Id. at ¶¶ 28-34, 35-42, 43-46, 47-54. 55-109, 110-116, and 117-125.

Defendants now file these motions seeking to dismiss the Complaint for failure to state a claim and for failure to state fraud claims with the required particularity, and also seeking to strike portions of the Complaint as immaterial. Plaintiff opposes both motions, but does not challenge a number of Defendants' arguments. Plaintiff does not challenge the motion to dismiss the claims for declaratory relief and breach of the implied covenant, but requests leave to amend both claims.

Opposition, Docket # 9, ¶¶ C and D. Plaintiff also requests leave to amend the quiet title claim and agrees to remove allegations related to punitive damages. Id. at ¶¶ I and J.

OPINION

A party may move to dismiss an action for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). In considering a motion to dismiss, the court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1975), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322 (1972). Assertions that are mere "legal conclusions," however, are not entitled to the assumption of truth. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009), citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To survive a motion to dismiss, a plaintiff needs to plead "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. Dismissal is appropriate where the plaintiff fails to state a claim supportable by a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

"In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally." Fed. R. Civ. P. 9(b). A claim of statutory violation that is "grounded in fraud" must also satisfy the particularity requirement of Rule 9(b). Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1103-04 (9th Cir. 2003). A claim is "grounded in fraud" where a plaintiff alleges a course of fraudulent conduct and relies on that course of conduct to lay the basis of a claim. Id.

In general, a court may not consider materials other than the facts alleged in the complaint when ruling on a motion to dismiss. Anderson v. Angelone, 86 F.3d 932, 934 (9th Cir. 1996). The court may, however, consider additional materials if the plaintiff has alleged their existence in the complaint and if their authenticity is not disputed. See Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994), overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002). Here, Plaintiff has attached to his Complaint as Exhibit A his letter purporting to cancel the loan. Complaint, Docket # 2, Exh. A. Defendants have not questioned the validity of this document. Accordingly, the Court will consider this document in deciding Defendants' motions.

Upon granting a motion to dismiss, a court has discretion to allow leave to amend the complaint pursuant to Federal Rule of Civil Procedure 15(a). "Absent prejudice, or a strong showing of any [other relevant] factor[], there exists a presumption under Rule 15(a) in favor of granting leave to amend." Eminence Capital, L.L.C. v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). "Dismissal with prejudice and without leave to amend is not appropriate unless it is clear . . . that the complaint could not be saved by amendment." Id. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.