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Bardin v. Bank of America

February 1, 2010

WILLIAM BARDIN, PLAINTIFF,
v.
BANK OF AMERICA, AMERICA HOMEKEY, INC., MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., U.S. FUNDING GROUP, INC. AND JOHN MORRIS, AND DOES 1-20 INCLUSIVE DEFENDANTS.



The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER DISMISSING PLAINTIFF'S FEDERAL CLAIM AND DECLINING SUPPLEMENTAL JURISDICTION OVER PLAINTIFF'S STATE CLAIMS*fn1

On October 1, 2009, Bank of America Corporation ("BAC"), Mortgage Electronic Registration Systems, Inc. ("MERS") and Countrywide Home Financial Loans, Inc. ("CHL") (collectively, "Defendants") filed a motion under Federal Rule of Civil Procedure 12(b)(6) ("Rule 12(b)(6)"), in which they seek dismissal of Plaintiff's first amended complaint. Plaintiff's claims concern a mortgage loan transaction involving property located at 4525 McDonald Drive in Sacramento, California. Plaintiff did not file an opposition to Defendants' motion.

I. LEGAL STANDARD

A Rule 12(b)(6) motion "challenges a complaint's compliance with . . . pleading requirements." Champlaie v. BAC Home Loans Servicing, LP, No. S-09-1316 LKK/DAD, 2009 WL 3429622, at *1 (E.D. Cal. Oct. 22, 2009). A pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). The complaint must "give the defendant fair notice of what the [plaintiff's] claim is and the grounds upon which relief rests . . . ." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Further, "[a] pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).

To avoid dismissal, the plaintiff must allege "only enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 547. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949. Plausibility, however, requires more than "a sheer possibility that a defendant has acted unlawfully." Id. "When 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. (quotations and citation omitted).

In evaluating a dismissal motion under Rule 12(b)(6), the court "accept[s] as true all facts alleged in the complaint, and draw[s] all reasonable inferences in favor of the plaintiff." Al-Kidd v. Ashcroft, 580 F.3d 949, 956 (9th Cir. 2009). However, neither conclusory statements nor legal conclusions are entitled to a presumption of truth. See Iqbal, 129 S.Ct. at 1949-50.

Defendants' dismissal motion is accompanied by a request for judicial notice of certain documents related to Plaintiff's loan transaction. This request is denied since Defendants have not shown the documents need to be considered in the decision of their motion.

II. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff alleges that on or about January 4, 2006, he obtained a loan from America Homekey, Inc. ("AH") on property located at 4525 McDonald Drive in Sacramento, California. (First Amended Compl. ("FAC") ¶¶ 7, 30.) Plaintiff further alleges the "terms of the loan were memorialized in a Promissory Note, which was secured by a Deed of Trust" on the property. (Id. ¶ 30.) The Deed of Trust identified AH as the lender and MERS as the beneficiary and nominee for the lender and the lender's successors and assigns. (Id.)

Plaintiff alleges defendant John Morris "held himself out . . . as a loan officer" for defendant US Funding Group, Inc. ("UFG"), and defendant Raymond Bowden "was a real estate [b]roker . . . and the [b]roker of record for [d]efendant UFG." (Id. ¶¶ 13-14.) "Defendants UFG, Bowden and Morris" allegedly "sold Plaintiff the mortgage" loan at issue. (Id. ¶ 12.) Plaintiff's claims relate to his allegations that defendants Morris and Bowden channeled him into an allegedly unaffordable loan through misrepresentations and fraudulent conduct. (Id. ¶¶ 12-14, 23-29.) Specifically, Plaintiff alleges that Morris advised him that he could get Plaintiff "the 'best deal' and the 'best interest rates' available on the market" and that if the loan ever became unaffordable, Plaintiff would be able to refinance. (Id. ¶¶ 24, 27.) Plaintiff also alleges that Morris overstated Plaintiff's income on his loan application. (Id. ¶ 25.)

Plaintiff filed his original complaint in this federal district court on June 8, 2009. On August 6, 2009, defendants BAC and MERS filed a motion to dismiss Plaintiff's complaint under Rule 12(b)(6). Plaintiff filed an amended complaint on September 11, 2009, mooting defendants' initial dismissal motion.

III. DISCUSSION

A. Plaintiff's Federal Claim

Plaintiff's only remaining federal claim in this case is alleged against Defendant CHL under the Real Estate Settlement Procedures Act ("RESPA").*fn2 Defendants argue Plaintiff's RESPA claim against CHL is conclusory and fails to allege facts suggesting the manner in which CHL violated RESPA. Further, Defendants argue that Plaintiff's allegations concerning CHL's failure to ...


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