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Mbaba v. Indymac Federal Bank F.S.B.

January 27, 2010

PATRICK MBABA, PLAINTIFF,
v.
INDYMAC FEDERAL BANK F.S.B.; MTC FINANCIAL, INC. DBA TRUSTEE CORPS, DEFENDANTS.



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

MEMORANDUM DECISION ON DEFENDANT MTC FINANCIAL, INC., dba TRUSTEE CORPS' MOTION TO DISMISS (Doc. 7)

I. INTRODUCTION

Defendant MTC Financial, Inc. dba Trustee Corps moves to dismiss Plaintiff Patrick Mbaba's Complaint on grounds, among others, that Trustee Corps is not subject to Plaintiff's claims in its limited role as foreclosure trustee. Plaintiff, proceeding pro se, has filed opposition, to which Defendant has replied.

II. BACKGROUND

This case involves a dispute between Plaintiff Patrick Mbaba ("Mbaba") and Defendants IndyMac Federal Bank ("IndyMac") and MTC Financial, Inc. dba Trustee Corps ("Trustee Corps"), the latter a foreclosure trustee headquartered in Orange, California. The dispute concerns two mortgage loans obtained by Plaintiff on real property located at 5201 Gorman Way and 5203 Gorman Way, Bakersfield, California.

On June 29, 2007, Plaintiff obtained two loans from First Capital Group, both in the amount of $142,000, which were secured by Deeds of Trust ("DOT") on the Gorman Way properties. (Request for Judicial Notice ("RJN"), Doc. 7-2, Exhs. A-B.*fn1 The Deeds of Trust identify First Capital Group as the lender, Orange Coast Title Co. as the trustee, and Mortgage Electronic Registration Systems, Inc. ("MERS") as the beneficiary.*fn2 (Id. Exhs. A-D.)

By Assignments of Deed of Trust dated April 13th and 15th, 2009, MERS assigned to Defendant Indymac all its beneficial interest under the Deeds of Trust encumbering the 5201 and 5203 Gorman Way properties. On April 15, 2009, IndyMac substituted Trustee Corps as trustee under the Deed of Trust for the 5201 Gorman Way property. IndyMac substituted Trustee Corps as trustee under the Deed of Trust for the 5203 Gorman Way property on June 5, 2009.*fn3 (Id. Exhs. G-H.)

On April 17, 2009, Trustee Corps recorded notices of default on the Gorman Way properties.*fn4 After Mr. Mbaba failed to cure his defaults, Trustee Corps filed a Notice of Trustee's Sale for August 12, 2009 sale for 5201 Gorman Way and an August 13, 2009 sale for 5203 Gorman Way. (Id. Exhs. K-L.)

On August 11, 2009, Plaintiff filed this case in the Superior Court of California, County of Kern, alleging seven causes of action: (1) Injunction of Defendants Notice of Trustee Sales; (2) Housing Discrimination; (3) Fraud; (4) Unjust Enrichment; (5) Breach of Contract; (6) Compensatory Damages; and (7) Punitive Damages. (Doc. 1., Exh. A (the "Complaint").)

The substance of the complaint is that IndyMac placed Plaintiff in an unaffordable "interest only" loan "which precluded Plaintiff from the benefit of equity growth or protection of Plaintiff's asset." (Compl. ¶ 8.) As a result of the housing collapse, Plaintiff alleges he was left with little or no equity in his home and could not sustain his loan payments. (Id. ¶ 9.) According to Plaintiff, he requested a loan modification from IndyMac in August 2008, but his request was denied. (Id. ¶ 10.) Following IndyMac's refusal, Plaintiff alleges that IndyMac "hired [Trustee Corps] to substitute and illegally file notice of Trustee sale of Plaintiffs [sic] without consideration to Plaintiff's repeated application and request for loan modification." (Id. ¶ 13.) Plaintiff also alleges:

14. Defendants and IndyMac

Dba Trustee Corps secretly acquire said assets themselves to intent to unjustly enrich for themselves with Plaintiff of peaceful and themselves fair opportunity and deprive benefit from Plaintiff's own asset. to

MTC conspired

Financial Inc. among

15. Plaintiff

Defendants is

IndyMac informed and MTC and believes that the

Trustee Corps jointly and Financial Inc. Dba to consider Plaintiff's individually application by failure

modification and violated Plaintiff's Civil for loan the Equal Opportunity Rights Lending Sec. 801[42 U.S.C. 3601].

Act (ECOA) and Fair

(Id. ¶¶ 14-15.)

Plaintiff requests general, special, as well as "punitive damages in the sum of $500 million." Plaintiff also requests an injunction "to prevent Defendants proposed sale of Plaintiff's real properties identified as follows: (a) 5201 Gorman Way, Bakersfield, California, 93309; (b) 5203 Gorman Way Bakersfield, California, 93309." (Id. at 7:16-7:20.)

On August 18, 2009, this case was removed on the basis of federal question jurisdiction. (Doc. 1.) The notice of removal asserts that Plaintiff's action is founded on claims arising under federal laws, including the Federal Housing Act ("FHA"), 42 U.S.C. § 3601, et seq., and Truth in Lending Act ("TILA"), 15 U.S.C. § 1601, et seq. (Id.)

Defendant Trustee Corps filed this motion on September 10, 2009. (Doc. 7.) Defendant Trustee Corps 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 Trustee Corps.*fn5 In any event, Defendant claims that Plaintiff has no basis to pursue claims under federal or state law.

The parties appeared before the court on October 26, 2009, for argument on Defendant's motion to dismiss and motion to strike. During the hearing, Plaintiff, who did not file an opposition, requested an extension of time to obtain counsel and file an opposition. The court granted the request and continued the hearing to January 25, 2010.*fn6

On December 16, 2009, Plaintiff filed a single document entitled: "1. Plaintiff's Opposition To: Motion to Dismiss Complaint Against Trustee Corps and Motion to Strike; 2. Plaintiff's Notice and Motion For Summary Judgment Against Defendants." (Doc. 13.) Plaintiff's filing does not comply with the Rule 56-260, Local Rules of Practice, governing motions for summary judgment.*fn7 It is considered solely as an opposition to Defendant's motion to dismiss pursuant to Local Rule 78-230(c).

In his opposition, Plaintiff maintains that the actions of "Defendant IndyMac [] and Defendant [Trustee Corps] were jointly and individually collusive, fraudulent and with malice, oppression and extreme indifference [sic] to Plaintiff's rights." (Doc. 13, 2:2-2:5.) Plaintiff also contends that he was not properly served with notice of the foreclosure sale. (Id. at 2:6-2:7.)

III. LEGAL STANDARD

A. Motion to Dismiss

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 ...


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