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Lopez v. Equifirst Corp.

September 30, 2009

JUAN LOPEZ, PLAINTIFF,
v.
EQUIFIRST CORPORATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge

ORDER GRANTING DEFENDANT OCWEN'S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED

(Document #6)

HISTORY*fn1

On October 13, 2006, Plaintiff Juan Lopez ("Lopez") refinanced a mortgage loan on property located at 697 Dogwood Avenue, Tulare California ("Subject Property"), with Defendant Equifirst Corporation ("Equifirst") in the amount of $189,550.00. Bradley Gilton ("Gilton") was the mortgage broker. The loan was later assigned to Defendant Ocwen Loan Servicing, LLC ("Ocwen"), who obtained the rights to service Lopez's loan. Lopez defaulted on the loan and the non-judicial foreclosure process was initiated.

On June 18, 2009, Lopez filed suit in the Superior Court of California, County of Tulare. Lopez alleges: (1) A (first) cause of action for violation of the Real Estate Settlement Procedures Act ("RESPA") against Equifirst; (2) a (second) cause of action for violation of the Truth in Lending Act ("TILA") against Equifirst; (3) a (third) cause of action for unfair and deceptive business practices against Equifirst for violating Cal. Bus. & Prof. Code § 1700*fn2; (4) a (fourth) cause of action for unfair and deceptive business practices against Gilton for violating Cal. Bus. & Prof. Code § 1700; (5) a (fifth) fraud cause of action against Gilton; (6) a (sixth) cause of action for breach of fiduciary duty against Gilton; and (7) a (seventh) cause of action for declaratory relief pursuant to Cal. Civ. Code § 2923.6*fn3 against Ocwen requesting a judicial determination that Lopez has a right to modify his existing loan with Ocwen.

The complaint seeks declaratory relief, injunctive relief, specific performance by Ocwen to modify Lopez's existing mortgage, and attorney's fees.

Ocwen removed the case to the Eastern District of California and now moves to have the case dismissed for failure to state a claim.*fn4

Lopez has neither filed an opposition nor a notice of non-opposition.

On September 11, 2009, the court took the matter under submission without oral argument.

LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(6), a claim may be dismissed because of the plaintiff's "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A dismissal under Rule 12(b)(6) may be based on the lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable legal theory. Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 2008); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In reviewing a complaint under Rule 12(b)(6), all allegations of material fact are taken as true and construed in the light most favorable to the non-moving party. Marceau v. Balckfeet Hous. Auth., 540 F.3d 916, 919 (9th Cir. 2008); Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir. 1999). The Court must also assume that general allegations embrace the necessary, specific facts to support the claim. Smith v. Pacific Prop. and Dev. Corp., 358 F.3d 1097, 1106 (9th Cir. 2004); Peloza v. Capistrano Unified Sch. Dist., 37 F.3d 517, 521 (9th Cir. 1994). But, the Court is not required "to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1056-57 (9th Cir. 2008); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). Although they may provide the framework of a complaint, legal conclusions are not accepted as true and "[t]hreadbare recitals of elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009); see also Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). Furthermore, Courts will not assume that plaintiffs "can prove facts which [they have] not alleged, or that the defendants have violated... laws in ways that have not been alleged." Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). As the Supreme Court has recently explained:

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. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, to "avoid a Rule 12(b)(6) dismissal, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Iqbal, 129 S.Ct. at 1949; see Twombly, 550 U.S. at 570; see also Weber v. Department of Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir. 2008). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949.

The plausibility standard is not akin to a 'probability requirement,' but it asks more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it stops short of the ...


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