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Gonzalez v. Barclays Capital Real Estate

January 14, 2010

CECILIA GONZALEZ, PLAINTIFF,
v.
BARCLAYS CAPITAL REAL ESTATE, INC DBA HOMEQ SERVICING, ET AL, DEFENDANTS.



The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

MEMORANDUM DECISION ON DEFENDANT HOMEQ SERVICING'S MOTION TO DISMISS (Doc. 12)

I. INTRODUCTION

Before the court for decision is Defendant Barclays Capital Real Estate, Inc. dba Homeq Servicing's ("Homeq") motion to dismiss Plaintiff's First Amended Complaint ("FAC") for failure to state a claim. Plaintiff Cecilia Gonzalez did not oppose the motion. Defendant Homeq's motion to dismiss was submitted on the papers pursuant to Local Rule 78-230(c), (h).

II. BACKGROUND

This case involves a dispute between Plaintiff Cecilia Gonzalez and Defendant Homeq over the mortgage loan obtained by Plaintiff on property located at 1691 North Bridge Street, Visalia, California.*fn1 Plaintiff subsequently defaulted on the loan and the non-judicial foreclosure process was initiated.*fn2

The disputed loan was brokered and financed by one or more undisclosed financial entities. Defendant Homeq serviced the loan and Plaintiff does not allege that Homeq originated or brokered the loan.*fn3

Plaintiff's suit primarily challenges the disclosures - or lack thereof - that were provided with the loan. In particular, Plaintiff alleges that certain documents related to the loan "were not provided to [her] despite her insistence and continued requests for copies of such."*fn4 (FAC ¶ 14.) Plaintiff also alleges that she was "induced into this transaction without the proper opportunity to evaluate the costs and implications thereof, and in a form and manner required by applicable statute and regulation [sic]." (Id. ¶ 21.) With respect to Defendant Homeq, the FAC provides:

Defendant improper, Homeq ineffective, ratified and this unlawful transaction with an U.S.C. § 1602(u); Reg. Z § 226.23(a)(3) n. 48. material disclosures as that term is defined omission under of 15 (Id. ¶ 23.)

On May 11, 2009, Plaintiff filed the instant action in the Superior Court of California, County of Tulare, alleging six causes of action: (1) Violation of California Civil Code § 2923.6; (2) Fraud; (3) Reformation; (4) Injunctive Relief; (5) Declaratory Relief; and (6) Quiet Title. (Doc. 1, Exh. 1.)

On July 22, 2009, this case was removed on the basis of federal question jurisdiction. The notice of removal asserts that Plaintiff's action is founded on claims arising under federal laws, including the Federal Real Estate Settlement Procedures Act, ("RESPA"), 12 U.S.C. § 2607, et seq. Alternatively, the notice provides that removal is proper because "this is a civil action between citizens of different states and the matter in controversy likely exceeds the sum of $75,000." (Doc. 1, ¶ 9.)

Plaintiff filed her FAC on June 6, 2009, alleging five causes of action: (1) Violation of the Truth in Lending Act ("TILA"), 15 U.S.C. § 1635(a) - Rescission; (2) Violation of the TILA -Statutory Damages; (3) Violation of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692, et seq.; (4) Violation of California Business & Professions Code § 17200; and (5) Violation of California Civil Code § 2923.6. (Doc. 9.)

Defendant filed this motion on September 4, 2009. Defendant Homeq asserts that Plaintiff's suit should be dismissed with prejudice because the type of claims alleged are targeted at the original lender -- which was not Homeq. In any event, Homeq claims that Plaintiff is not entitled to rescind the loan agreement and has no basis to pursue claims under federal or state law.

Plaintiff did not oppose Defendant's motion to dismiss.

III. LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(6), a motion to dismiss can be made and granted when the complaint fails "to state a claim upon which relief can be granted." 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. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

To sufficiently state a claim for relief and survive a 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). Mere "labels and conclusions" or a "formulaic recitation of the elements of a cause of action will not do." Id. Rather, there must be "enough facts to state a claim to relief that is plausible on its face." Id. at 570. In other words, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted). "The plausibility standard is not akin to a probability requirement, but it asks for 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 line between possibility and plausibility of entitlement to relief." Id. (internal citation and quotation marks omitted).

In deciding whether to grant a motion to dismiss, the court must accept as true all "well-pleaded factual allegations." Iqbal, 129 S.Ct. at 1950. A court is not, however, "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); see, e.g., Doe I v. Wal-Mart Stores, Inc., --- F.3d ----, 2009 WL 1978730, at *3 (9th Cir. July 10, 2009) ("Plaintiffs' general statement that Wal-Mart exercised control over their day-to-day employment is a conclusion, not a factual allegation stated with any specificity. We need not accept Plaintiffs' unwarranted conclusion in reviewing a motion to dismiss.").

The Ninth Circuit has summarized the governing standard, in light of Twombly and Iqbal, as follows: "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. ...


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