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.

Anderson v. Countrywide Financial

October 16, 2009

DONNA ANDERSON, PLAINTIFF,
v.
COUNTRYWIDE FINANCIAL; WILSON RESOURCES, INC.; TODD WILSON; DERI ROSS, DEFENDANTS.



The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER*fn1

On May 21, 2009 Defendant Countrywide filed a motion for judgment on the pleadings under Federal Rule of Civil Procedure ("Rule") 12(c). Defendants Wilson Resources, Inc., Todd Wilson, and Deri Ross have joined Countrywide's motion (all defendants are herein referenced collectively as "Defendants"). Plaintiff opposes the motion.

Plaintiff alleges in her complaint two federal claims under the Truth in Lending Act ("TILA") and one federal claim under the Real Estate Settlement Procedures Act ("RESPA"), and several state claims. Since Defendants' motion on the federal claims will be granted, the court will decline to continue exercising supplemental jurisdiction over Plaintiff's state claims under 28 U.S.C. § 1367(c)(3).

STANDARD

A motion for judgment on the pleadings and a motion to dismiss "are functionally identical, [thus] the same standard of review applicable to a Rule 12(b) motion applies to its Rule 12(c) analog." Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188, 1192 (9th Cir. 1989). When deciding "a Rule 12(c) motion for judgment on the pleadings," "all factual allegations in the complaint [are accepted] as true and construe[d] . . . in the light most favorable to the non-moving party." Fleming v. Pickard,--- F.3d ---, 2009 WL 2871532, at *2 (9th Cir. September 9, 2009)(internal citations omitted). "However, conclusory allegations and unwarranted inferences are insufficient to defeat a motion for judgment on the pleadings." Butler v. Resurgence Financial, LLC, 521 F.Supp. 2d 1093, 1095 (C.D. Cal. 2007) (referencing In re Syntex Corp. Sec. Litig., 95 F.3d 922, 926 (9th Cir. 1996)). "Judgment on the pleadings is properly granted when there is no issue of material fact in dispute, and the moving party is entitled to judgment as a matter of law." Fleming, 2009 WL 2871532, at *2.

Defendants' motion includes the request that judicial notice be taken of documents referenced in Plaintiff's complaint. Plaintiff only opposes the portion of this request that seeks to have judicial notice taken of two signed Notices of Right to Cancel ("NRCs") that are different from the signed NRC attached as Exhibit C to Plaintiff's complaint. Plaintiff's Exhibit C will be considered instead of the NRCs of which Defendants request judicial notice be taken. However, the remainder of Defendants' judicial notice request is granted under the "incorporation by reference" doctrine. No. 84 Employer-Teamster Joint Council Pension Trust Fund v. Am. W. Holding Corp., 320 F.3d 920, 925 n. 2 (9th Cir. 2003); Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002)(finding that "[t]he Rule 12(b)(6) incorporation by reference doctrine should apply in Rule 12(c) cases as well.") This doctrine applies since "[P]laintiff's claim[s] depend[] on the contents of [the loan] documents" discussed or referenced in her complaint. Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005) (internal quotations and citation omitted). Therefore, these documents may be treated as "part of the complaint, and thus [the court may] assume that [their] contents are true." United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). Consequently, "the Court need not accept as true allegations [in the complaint] that contradict facts which [are] judicially noticed . . . [or] facts established by exhibits attached to the complaint." Westlands Water Dist. v. U.S., Dep't of Interior, Bureau of Reclamation, 805 F.Supp. 1503, 1506 (E.D. Cal. 1992) (internal citations and quotations omitted).

BACKGROUND

I. Plaintiff's Federal Claims

Plaintiff seeks in her complaint rescission of a "consumer credit transaction" (the "loan") which she entered with Wilson Resources, Inc., a mortgage broker and lender, "on or about August 1, 2005." (Compl. ¶¶ 8, 15.) Countrywide "holds and services the loan . . . " (Compl. ¶ 11.) Real estate broker Todd Wilson and real estate agent Deri Ross were involved with the loan. (Compl. ¶¶ 9, 10.)

Plaintiff alleges Wilson Resources, Inc. violated TILA when it failed to provide her with two signed copies of the NRCs. (Compl. ¶¶ 23, 34.) Plaintiff alleges this failure serves as the basis for extending the time period within which she has a right to rescind the loan under 15 U.S.C. § 1635(a) from three days to three years. (Compl. ¶¶ 17, 35.) Plaintiff alleges the NRC she received after consummation of the loan was not signed or initialed by her as required by TILA, and that she informed Defendant Countrywide of her decision to rescind the loan in a letter dated September 18, 2007. (Compl. ¶ 21, Ex. A.) This letter and an unsigned NRC are attached as Exhibit A to Plaintiff's complaint. (Compl. ¶ 21, Ex. A.) Plaintiff alleges Countrywide responded to her September 18 letter in a letter dated October 30, 2007, in which Countrywide included a copy of an NRC that Plaintiff signed, initialed, and modified; this NRC states the rescission date was within three days of the August 1, 2005 loan consummation date. (Compl. ¶ 23, Ex. C.) This signed NRC is attached as Exhibit C to Plaintiff's complaint.

Plaintiff also alleges Wilson Resources, Inc., Todd Wilson, and Deri Ross failed to give her certain material disclosures required by TILA, and that this failure also entitles her to a three year rescission period. (Compl. ¶¶ 16, 17, 28.) Plaintiff also alleges Wilson Resources, Inc. and Countrywide paid themselves undisclosed fees in violation of RESPA. (Compl. ¶¶ 54-56.)

DISCUSSION

I. TILA

Although Plaintiff has a TILA claim premised on Wilson Resources, Inc.'s failure to give her two signed NRCs for the loan, Exhibit C attached to Plaintiff's complaint is an NRC that Plaintiff signed and modified. (Compl. ΒΆ 22.) Underneath Plaintiff's signature in Exhibit C is the statement: "The undersigned acknowledges ...


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.