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Martin v. National City Mortgage Co.

February 18, 2010

DONALD E. MARTIN, PLAINTIFF,
v.
NATIONAL CITY MORTGAGE CO., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER GRANTING DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS (F.R.Civ.P. 12(c)) (Doc. 40)

Defendant PNC Bank, N.A., as successor by merger to National City Bank f/d/b National City Mortgage Co., moves for entry of judgment on the pleadings, pursuant to F.R.Civ. P. 12(c). Plaintiff has filed no opposition. This Court has reviewed the papers and has determined that this matter is suitable for decision without oral argument pursuant to Local Rule 78-230(h). Having considered all written materials submitted, the Court orders that Defendant's motion be granted and that judgment be entered in Defendant's favor.

I. Background

On August 25, 2006, Plaintiff refinanced his home with a $268,950 first mortgage and $350,000 second mortgage to National City Bank. The loan proceeds were used to pay off existing first and second mortgages totaling approximately $470,000 and to pay settlement charges totaling approximately $9,408. Plaintiff received a cash balance of approximately $139,683. The Complaint alleges that Plaintiff received a Good Faith Estimate, Truth in Lending disclosure statements, HUD-1 settlement statement and Notice of Right to Cancel, attaching these documents as exhibits and incorporating them by reference.

On May 5, 2008, Cal-Western Reconveyance Corporation declared Plaintiff to be in default for nonpayment of the first mortgage. Plaintiff responded on May 20, 2008, sending National City Bank a notice to rescind. On July 18, 2008, Plaintiff filed this lawsuit, alleging violations of the Truth in Lending Act (15 U.S.C. § 1640(e)) ("TILA") and California's Unfair Competition Law (Cal. Business and Prof'l Code § 17200 et seq.), and seeking rescission and damages. Defendant answered on November 14, 2008. Both parties have consented to jurisdiction of a magistrate judge.

II. Legal Standard for Judgment on the Pleadings

"After the pleadings are closed--but early enough not to delay trial--a party may move for judgment on the pleadings." F.R.Civ.P. 12(c). A motion for judgment on the pleadings is a "means to challenge the sufficiency of the complaint after an answer has been filed." New.Net, Inc. v. Lavasoft, 356 F.Supp.2d 1090, 1115 (C.D.Cal. 2004).

A court evaluates a motion for judgment on the pleadings using the same standard applicable to motions to dismiss. Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188, 1192 (9th Cir.), cert. denied, 493 U.S. 812 (1989). "Judgment on the pleadings is proper when the moving party clearly establishes on the face of the pleadings that no material issue of fact remains to be resolved and that it is entitled to judgment as a matter of law." Hal Roach Studios, Inc. v. Richard Feiner and Co., Inc., 896 F.2d 1542, 1550 (9th Cir. 1989). A court must assume that the material facts alleged in the complaint are truthful and construe all inferences that may reasonably be drawn from the allegations in favor of the responding party. General Conference Corp. of Seventh-Day Adventists v. Seventh-Day Adventist Congregational Church, 887 F.2d 228, 230 (9th Cir. 1989), cert. denied, 493 U.S. 1079 (1990).

When a court rules on a motion to dismiss, it may consider the complaint, the exhibits to the complaint, and matters subject to judicial notice under F.R.E. 201. Brewer v. Indymac Bank, 609 F.Supp.2d 1104, 1112 (E.D.Cal. 2009). Summary judgment is properly ordered when no issue of material fact exists and the moving party is entitled to judgment as a matter of law. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

In addition, Rule 12(d) provides:

If, on a motion under Rule . . . 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.

Defendant's inclusion of a copy of the Notice of Right to Cancel, signed by Plaintiff to acknowledge receipt at closing, could be considered a matter outside the pleadings. In his complaint, Plaintiff acknowledged receiving the Notice at closing and included a unsigned copy of the Notice as an Exhibit to the Complaint. Plaintiff argues, however, that his receipt of the Notice is immaterial since the Lender failed to provide full disclosure as defined by TILA and the regulations promulgated under it ("Regulation Z"). Accordingly, this Court need not consider the document provided by Defendant and orders it excluded from consideration of Defendant's motion for judgment on the pleadings.

III. Discussion

A. Plaintiff's ...


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