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Razawi v. Federal Deposit Insurance Corp.

January 12, 2010

AHMED RAZAWI AND DANIELA RAZAWI, PLAINTIFFS,
v.
FEDERAL DEPOSIT INSURANCE CORPORATION AS RECEIVER FOR DOWNEY SAVINGS AND LOAN ASSOCIATION, F.A.; CENTRAL MORTGAGE COMPANY; MTC FINANCIAL, INC. DBA TRUSTEE CORPS; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; COMMUNITY ONE FINANCIAL & REAL ESTATE; JAMAL AKBAR; CHRIS COLON; ALEX BURHAN AND DOES 1-20 INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

MEMORANDUM AND ORDER

Presently before the Court is a Motion by MTC Financial, Inc. doing business as Trustee Corps ("Defendant") to Dismiss the Second Amended Complaint of Plaintiffs Ahmed and Daniela Razawi ("Plaintiffs") for failure to state a claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6).*fn1

For the reasons set forth below, Defendant's Motion to Dismiss is granted.

BACKGROUND*fn2

On December 9, 2005, Plaintiffs secured a $520,00 mortgage loan from Downey Savings and Loan ("Downey"). At the time of the execution of the loan, DSL Service Company was named as Trustee. On November 15, 2006, Downey assigned the Deed and Promissory Note to Mortgage Electronic Registration Systems, who in April 30, 2008 assigned the Deed to Central Mortgaging Company. On October 1, 2008 Central Mortgaging Company substituted Defendant as trustee under the Deed.

As of October 2, 2008, Plaintiffs were in default in the amount of $27,835.56. On January 29, 2009, Defendant executed a Notice of Trustee's Sale, and on March 18, 2009 Defendant foreclosed and sold the property.

Plaintiffs now allege a litany of state and federal law violations in connection with the foreclosure. Defendant previously sought to dismiss the claims alleged against it by filing a Motion to Dismiss Plaintiffs' First Amended Complaint. On September 9, 2009, this Court granted Defendant's Motion to Dismiss as to all claims with leave to amend.

Plaintiff thereafter filed a Second Amended Complaint.

STANDARD

On a motion to dismiss for failure to state a claim under Rule 12(b)(6), all allegations of material fact must be accepted as true and construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Rule 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief" in order to "give the defendant fair notice of what the...claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 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. Id. at 1964-65 (internal citations and quotations omitted). Factual allegations must be enough to raise a right to relief above the speculative level.

Id. at 1965 (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-36 (3d ed. 2004) ("The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action")).

"Rule 8(a)(2)...requires a 'showing,' rather than a blanket assertion of entitlement to relief. Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirements of providing not only 'fair notice' of the nature of the claim, but also 'grounds' on which the claim rests." Twombly, 550 U.S. 556 n.3. A pleading must contain "only enough facts to state a claim to relief that is plausible on its face." Id. at 570. If the "plaintiffs...have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed." Id. Nevertheless, "[a] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and 'that a recovery is very remote and unlikely.'" Id. at 556.

When a claim for fraud is raised, Federal Rule of Civil Procedure 9(b) provides that "a party must state with particularity the circumstances constituting fraud." "A pleading is sufficient under Rule 9(b) if it identifies the circumstances constituting fraud so that the defendant can prepare an adequate answer from the allegations." Neubronner v. Milken, 6 F.3d 666, 671-672 (9th Cir. 1993) (internal quotations and citations omitted). "The complaint must specify such facts as the times, dates, places, benefits received, and other details of the alleged fraudulent activity." Id. at 672.

A court granting a motion to dismiss a complaint must then decide whether to grant leave to amend. A court should "freely give" leave to amend when there is no "undue delay, bad faith[,] dilatory motive on the part of the movant,...undue prejudice to the opposing party by virtue of...the amendment, [or] futility of the amendment...." Fed. R. Civ. P. 15(a); Foman v. Davis, 371 U.S. 178, 182 (1962). Generally, leave to amend is denied only when it is clear the ...


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