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Sanchez v. Indymac Bank

January 15, 2010

DONALD SANCHEZ, PLAINTIFF,
v.
INDYMAC BANK, FSB; INDYMAC FEDERAL BANK F.S.B. IN ITS SEPARATE CAPACITY AND AS SUCCESSOR TO INDYMAC BANK; WINDSOR CAPITAL MORTGAGE CORPORATION DBA NORTH POINT LENDING & INVESTMENTS; LINDA TEMPKO; BARBARA CUILLO; JEFF B. MCGREGOR; RONNY EARLY; FIRST PRIORITY FINANCIAL INC., DBA NORTH POINT LENDING & INVESTMENTS; DAVID MICHAEL SOLDATI; 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 Defendants First Priority Financial, Inc. ("First Priority") and David Soldati ("Soldati") (collectively "Defendants") to Dismiss the Second Amended Complaint of Plaintiff Donald Sanchez ("Plaintiff") 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, Defendants' Motion is granted.

BACKGROUND*fn2

Though the present lawsuit arises out of a mortgage loan transaction, the dispute between the parties is largely one of identification. Defendants argue that they have been mistakenly named in this lawsuit due to Plaintiff's misreading of the public records of California's Department of Real Estate ("DRE"). The DRE website indicates that First Priority was at one time "doing business as" ("dba") NorthPoint Lending & Investments. However, Defendants allege that the use of NorthPoint Lending & Investments as a dba by First Priority ended on October 9, 2006, a month before Plaintiff allegedly began considering entering his mortgage loan at the urging of loan officer Ronny Early on November 15, 2006.

Consequently, Defendants contend that they should not be included in this suit.

A. The Mortgage Loan Transaction

On November 15, 2006, Ronny Early represented to Plaintiff that he was a loan officer for Windsor Capital Mortgage Corporation ("Windsor Capital"). He told Plaintiff that he could get him the "best deal" and the "best interest rates" available on the market and that Plaintiff would pre-qualify for a loan in the approximate amount of $400,000.00. At the time, Plaintiff was making $29.00 per hour and he provided to Early documentation of his income. Plaintiff informed Early that he was surprised he qualified for a loan of $400,000 when he already had two loan payments totaling over $1100 per month and his take home pay was less than $3500 per month. Early told Plaintiff that he only had to pay the loan for one year and then afterwards Early would obtain refinancing for a more affordable loan. In reliance on such representations Plaintiff closed on the loan on January 8, 2007. The terms were memorialized in two promissory notes secured by two Deeds of Trust on the property.

On January 15, 2009 a Notice of Default on the loan was filed. On April 15, 2009 Plaintiff was sent a Notice of Trustee Sale. Plaintiff now alleges several causes of action in connection to his mortgage loan including: violation of the Truth in Lending Act ("TILA"), negligence, violation of the Real Estate Settlement Procedures Act ("RESPA"), breach of fiduciary duty, fraud, and violation of California's Unfair Competition Law ("UCL").

B. Defendant's Alleged Connection to the Transaction

In discussing his mortgage loan to Early, Plaintiff received correspondence on letterhead which included both the business name of Early's employer "Windsor Capital" and a second name "NorthPoint Lending & Investments". This letterhead indicated a single office location at 201 Sand Creek Road, Suite L, Brentwood, CA.

However, NorthPoint Lending & Investments is not listed with the DRE as a dba for Windsor Capitol. Nor is Windsor Capital listed as having an office at address 201 Sand Creek Road Suite L, Brentwood, CA.

Plaintiff alleges that, instead, First Priority is listed by the DRE as having operated under the name of NorthPoint Lending & Investments with an office at 201 Sand Creek Road, Brentwood, CA. Plaintiff alleges Defendant David Soldati is licensed by the DRE as the broker for First Priority Financial dba NorthPoint Lending & Investments.

C. Posture

Plaintiff concedes in his opposition that the motion to dismiss should be granted as to Soldati. The Court will therefore focus only on the contested issues ...


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