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Tasaranta v. Homecomings Financial LLC

September 21, 2009


The opinion of the court was delivered by: Hayes, Judge


The matter before the Court is the Motion to Dismiss, filed by Defendant Homecomings Financial, LLC ("Homecomings"). (Doc. # 8).

I. Background

On July 2, 2009, Plaintiffs, proceeding pro se, initiated this action by filing a Complaint for Damages and Rescission ("Complaint") in San Diego County Superior Court. (Notice of Removal, Doc. # 1, Ex. A ("Compl.")). On July 31, 2009, Homecomings removed the action to this Court, alleging federal question jurisdiction. (Doc. # 1). The Notice of Removal was accompanied by an affidavit from Homecomings' counsel, stating that Defendant American Mortgage Network, Inc. had not been properly served as of July 31, 2009. (Doc. # 3, ¶ 5). American Mortgage Network, Inc. has not yet entered an appearance, and Plaintiffs have filed no proof of service as to American Mortgage Network, Inc. with this Court.

On August 5, 2009, Homecomings filed a Motion to Dismiss the Complaint. (Doc. # 8). Plaintiffs have not filed an opposition to the Motion to Dismiss.

II. Allegations of the Complaint

"The real property [at issue] is a single family residence commonly known as follows: 1918 Harrils Mill Ave., Chula Vista, California 91913." (Compl. at 1). "On or about May 6, 2005, Plaintiffs executed an 'Adjustable Rate Note' promising to pay [Defendant] American Mortgage Network, Inc. the sum of $619,000.00 by monthly payments." (Compl. ¶5). "[C]rucial terms regarding the loan documentation were... never fully explained to Plaintiffs, if at all as required by statute, including the exact interest rate set forth in the 'Note', how and when any adjustments to that interest rate and the recurring monthly payment would occur." (Compl. ¶ 7). "Further,... the Defendants charged and obtained improper fee for the placement of their loan as 'sub-prime' when they qualified for a prime rate mortgage which would have generated less in fees and interest." (Compl. ¶ 8).

The Complaint alleges eight causes of action: (1) violation of the Truth In Lending Act ("TILA"), 15 U.S.C. §§ 1611 et seq.; (2) violation of the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. §§ 2605 et seq.; (3) violation of the Home Ownership and Equity Protection Act ("HOEPA"), 15 U.S.C. §§ 1602 and 1639; (4) violation of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692; (5) breach of fiduciary duty; (6) breach of the covenant of good faith and fair dealing; (7) injunctive relief; and (8) declaratory relief. The Complaint requests compensatory and punitive damages, and "rescission of the contract and loan." (Compl. at 12).

III. Standard of Review

Federal Rule of Civil Procedure 12(b)(6) permits dismissal for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). Dismissal under Rule 12(b)(6) is appropriate where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

To sufficiently state a claim to relief and survive a Rule 12(b)(6) motion, a complaint "does not need detailed factual allegations" but the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "[A] plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. (quoting Fed. R. Civ. P. 8(a)(2)). When considering a motion to dismiss, a court must accept as true all "well-pleaded factual allegations." Ashcroft v. Iqbal, --- U.S. ---, 129 S.Ct. 1937, 1950 (2009). However, a court is not "required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001); see also Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 683 (9th Cir. 2009) ("Plaintiffs' general statement that Wal-Mart exercised control over their day-to-day employment is a conclusion, not a factual allegation stated with any specificity. We need not accept Plaintiffs' unwarranted conclusion in reviewing a motion to dismiss."). "In sum, for a complaint to survive a motion to dismiss, the non-conclusory factual content, and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quotations omitted).

Pro se complaints are held to a less stringent standard than formal pleadings by lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972). A pro se plaintiff's complaint must be construed liberally to determine whether a claim has been stated. See Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001). "Although a pro se litigant... may be entitled to great leeway when the court construes his pleadings, those pleadings nonetheless must meet some minimum threshold in providing a defendant with notice of what it is that it allegedly did wrong." See Brazil v. U.S. Dep't of Navy, 66 F.3d 193, 199 (9th Cir. 1995). Additionally, "[a]lthough [courts] construe pleadings liberally in their favor, pro se litigants are bound by the rules of procedure." Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995). When dismissing a pro se complaint for failure to state a claim, "the district court must give the plaintiff a statement of the complaint's deficiencies." Karim-Panahi v. L.A. Police Dep't, 839 F.2d 621, 623-24 (9th Cir. 1988).

IV. Discussion


The Complaint alleges:

Defendants... have violated the requirements of [TILA] in that among other things:A. They have refused and continued to refuse to validate or otherwise make full accounting and the required ...

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