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Castro v. Home Capital Funding

October 28, 2009

MERLENE F. CASTRO, PLAINTIFF,
v.
HOME CAPITAL FUNDING; AMERICAS SERVICING COMPANY; FIRST AMERICAN LOAN STAR TRUSTEE SERVICES; AND DOES 1-10, DEFENDANTS.



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

ORDER

The matter before the Court is the Motion to Dismiss filed by Defendant America's Servicing Company. (Doc. # 5).

I. Background

On June 23, 2009, Plaintiff, proceeding pro se, initiated this action by filing a "Complaint and Request for Original Promissory Note of Real Property Located at 1640 Maple Drive Unit 65, Chula Vista, CA [91911], APN # 624-042-04-65, Original Promissory Note; Violation of GAAP, RESPA, UCC; The Fair Debt Collection Practices Act; Fraud in Inducement. Memorandum of Points and Authorities in Support of Complaint" ("Complaint"). (Doc. # 1). The Complaint alleges that "[o]n or about 08/31/05, [Plaintiff] Merlene F. Castro applied and was granted a Mortgage for the property located at 1640 Maple Drive Unit 65, Chula Vista, CA [91911] ... (hereinafter 'property'), and signed a 'Promissory Note' ... for $351,000.00 from [Defendant] Home Capital Funding which was used to pay off and secure the ... 'property' in dispute." (Compl. at 4). The Complaint alleges that "the ownership of the Promissory Note has changed hands" and Defendant "America's Servicing Company ... is making claim to be the holder of the note as America's Servicing Company is collecting payments on said note." (Compl. at 4-5). The Complaint alleges that on April 23, 2009, "Defendant America's Servicing Company filed a 'Notice of Default' on the property ... through their trustee [Defendant] First American Loan Star Trustee Services and [is] attempting to acquire the ... property unlawfully." (Compl. at 5). The Complaint alleges the following causes of action: (1) breach of contract; (2) violation of generally accepted accounting principles; (3) violation of the Fair Debt Collection Practices Act ("FDCPA"); (4) violation of the Uniform Commercial Code ("UCC"); (5) violation of the Real Estate Settlement Procedures Act ("RESPA"); and (6) fraud in the inducement. The Complaint requests that the Court issue an order declaring that "Defendants have a null and void contract" and "the entire mortgage foreclosure procedure and sale [was] unlawfully conducted and void" and "said property [should] be returned to Plaintiff[] immediately." (Compl. at 32-33).

On August 6, 2009, Defendant First American Loanstar Trustee Services filed a "Declaration of Non-Monetary Status." (Doc. # 4). This Declaration states, "The Complaint arises out of a loan involving the borrower and the lender. Loanstar is simply the foreclosure trustee ..., with the power to foreclose on the property that arises from the Deed of Trust securing the loan." (Doc. # 4 at 2). The Declaration states:

The Complaint makes no allegations that Loanstar failed to perform any of its duties as a Trustee, nor have any of the remaining Defendants filed a Cross-Complaint against Loanstar alleging any defect in the performance of its duties as trustee, either under the Deed of Trust, or the applicable statutes set forth in Civil Code Section 2924, et seq. ... Given the foregoing facts, Loanstar hereby agrees to be bound by whatever non-monetary Order or Judgment this Court issues with regard to the Deed of Trust. (Doc. # 4 at 2-3).

On August 6, 2009, Defendant America's Servicing Company filed a Motion to Dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. # 5). Plaintiff has not filed an opposition to the Motion to Dismiss.

II. 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). "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). 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).

III. Discussion

A. Failure to Comply With the Rules of Pleading

"Although [courts] construe pleadings liberally in their favor, pro se litigants are bound by the rules of procedure." See Ghazali v. ...


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