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Enders v. Countrywide Home Loans

November 16, 2009

RAINER ENDERS, AN INDIVIDUAL, PLAINTIFF,
v.
COUNTRYWIDE HOME LOANS, INC., DEFENDANT.



The opinion of the court was delivered by: Saundra Brown Armstrong United States District Judge

ORDER unopposed Motion to Dismiss. (Docket No. 4.)

Plaintiff Rainer Enders ("Plaintiff") did not file an opposition brief or a statement of non-opposition, as required by Local Rule 7-3 and this Court's

I. BACKGROUND

Before the Court is Defendant Countrywide Home Loans, Inc.'s ("Countrywide") Standing Orders.

A. Factual Background

On June 30, 2006, Plaintiff obtained a mortgage in the amount of $764,000 from Countrywide Bank, N.A. for the purchase of a property located at 686 Barn Owl Court, Walnut Creek, CA 94598. In connection with that loan, Plaintiff executed a promissory note secured by a Deed of Trust on her property. (Request for Judicial Notice, Ex. A at 3 [Deed of Trust].)

Subsequently, Plaintiff defaulted on the loan and the trustee, Reconstrust Company, recorded a "notice of default and election to sell under deed of trust" on August 21, 2008. (RJD, Ex. B.)

Countrywide Home Loans, Inc. - the defendant in this action - services the loan.

had misused the authoritative and favorable impression it had created for itself as a "mortgage loan expert," via "current advertisements and broker testimonials," to convince her to enter into an adverse loan. (Compl. ¶ 1.) Plaintiff alleged, inter alia, that Countrywide purposely misrepresented the terms of the loans by making them overly complicated and that Countrywide misrepresented the loan as a "common trusted financial product that is a true and tried nothing-to-worry-about loan." (Compl. ¶ 3.) Furthermore, she alleged that, when she became aware of problems with the loan she attempted to notify Countrywide in an effort to modify the terms of the loan, but Countrywide did not respond to her requests. (Compl. ¶ 5.) of California's Unfair Competition Law, §§ 17500 & 17200 of the Business and Professions Code; the Fair Debt Collection Practices Act, 15 U.S.C. §1692 et seq; California Civil Code§ 2923.6; and the Truth in Lending Act, 15 U.S.C. § 1601 et seq. of Plaintiff's claims arise under federal law. 28 U.S.C. § 1331. (Docket No. 1.) On July 21, 2009,

B. Procedural Background

On May 27, 2009, Plaintiff filed a suit in state court alleging, inter alia, that Countrywide 8 In her suit, Plaintiff brought five causes of action against Countrywide alleging violations On July 14, 2009, Countrywide removed the action to this Court on the ground that certain Countrywide filed the instant motion to dismiss. (Docket No. 4.) As noted, Plaintiff did not file an 20 opposition or statement of non-opposition as required by this Court's Standing Orders.

II. LEGALSTANDARD

Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. To survive a motion to dismiss for failure to state a claim, the plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "Specific facts are not necessary; the statement need only give the defendant[s] fair notice of what ... the claim is and the grounds upon which it rests." Erickson v. Pardus, 551 U.S. 89, 93 (2007) (internal quotation marks omitted); Johnson v. Riverside Healthcare System, LP, 534 F.3d 1116, 1122 (9th Cir. 2008).

However, a complaint that only raises "the mere possibility of misconduct" does not establish that 3 the plaintiff is entitled to relief. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). The plaintiff must establish that the allegations are pushed "across the line from conceivable to plausible[.]" Id.

(quoting Twombly, 550 U.S. at 557).

true and construed in the light most favorable to the plaintiff." Lazy Y Ranch Ltd. v. Behrens, 546

"In general, the inquiry is limited to the allegations in the complaint, which are accepted as F.3d 580, 588 (9th Cir. 2008). However, a court need not accept as true unreasonable inferences or conclusory legal allegations cast in the form of factual allegations. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). In the event dismissal is warranted, it is generally without prejudice, unless it is clear the complaint cannot be saved by any amendment. See Sparling v. Daou, 411 F.3d 1006, 1013 (9th Cir. 2005); Gompper v. VISX, Inc., 298 F.3d 893, 898

III. DISCUSSION

under Local Rule 7-3. The Court's Standing Order specifically warns that failure to file an opposition to a motion shall constitute a consent to the granting of the motion.

grounds for granting the motion. Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995). In Ghazali, the court noted that in exercising its discretion to dismiss the action, the district court is "required to weigh several factors: '(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.'" Id. (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)); Fed. R. Civ. Proc. 41(b). (9th Cir. 2002).

A. PLAINTIFF'S FAILURE TO OPPOSE THE MOTION IS GROUNDS FOR DISMISSAL

Plaintiff did not file any opposition to the motion or statement of ...


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