Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lanin v. Wells Fargo Bank NA

February 19, 2010

DMITRIY LANIN, PLAINTIFF,
v.
WELLS FARGO BANK NA; MARIN CONVEYANCING CORPORATION; GREENPOINT MORTGAGE FUNDING, INC.; CAPITAL ONE, N.A.; AND DOES 1-50, DEFENDANTS.



The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge

MEMORANDUM AND ORDER

This matter is before the court on the motions of defendants Wells Fargo, N.A. ("Wells Fargo"), Greenpoint Mortgage Funding, Inc. ("Greenpoint"), Marin Conveyancing Corporation ("Marin"), and Capitol One, N.A. to dismiss plaintiff Dmitriy Lanin's ("plaintiff") first amended complaint pursuant to Federal Rule of Civil Procedure ("FRCP") 12(b)(6). (Docket #s 6, 19). Plaintiff opposes the motions. For the reasons set forth below,*fn1 defendants' motions are GRANTED.

BACKGROUND

Plaintiff brings this action against defendants Wells Fargo, Greenpoint, Marin, and Capitol One, N.A.*fn2 (Pl.'s First Am. Compl. ("Compl."), filed Sept. 1, 2009, ¶¶ 1-5.) Plaintiff's claims are based upon a residential home loan transaction and the subsequent foreclosure of plaintiff's home. (Id. ¶¶ 16, 8.) Plaintiff, who is not fluent in English, bases several claims on defendants' failure to provide plaintiff with copies of documents in his native Slavic language. (Id. ¶ 10, 37.) Additionally, plaintiff alleges that defendant Greenpoint acted as a "predatory lender" by misrepresenting the terms of plaintiff's loan and by failing to provide plaintiff with accurate disclosures. (Id. ¶ 16.) All defendants have moved to dismiss the action for failing to state any claims upon which relief could be granted. Fed. R. Civ. P. 12(b)(6).

STANDARDS

Under Federal Rule of Civil Procedure 8(a), a pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Under notice pleading in federal court, the complaint must "give the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007) (internal quotations omitted). "This simplified notice pleading standard relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002).

On a motion to dismiss, the factual allegations of the complaint must be accepted as true. Cruz v. Beto, 405 U.S. 319, 322 (1972). The court is bound to give plaintiff the benefit of every reasonable inference to be drawn from the "well-pleaded" allegations of the complaint. Retail Clerks Int'l Ass'n v. Schermerhorn, 373 U.S. 746, 753 n.6 (1963). A plaintiff need not allege "'specific facts' beyond those necessary to state his claim and the grounds showing entitlement to relief." Twombly, 550 U.S. at 570. "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.

Nevertheless, the court "need not assume the truth of legal conclusions cast in the form of factual allegations." United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). While Rule 8(a) does not require detailed factual allegations, "it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation." Iqbal, 129 S.Ct. at 1949. A pleading is insufficient if it offers mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555; Iqbal, 129 S.Ct. at 1950 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.").

Moreover, it is inappropriate to assume that the plaintiff "can prove facts which it has not alleged or that the defendants have violated the . . . laws in ways that have not been alleged." Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).

Ultimately, the court may not dismiss a complaint in which the plaintiff has alleged "enough facts to state a claim to relief that is plausible on its face." Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 570). Only where a plaintiff has failed to "nudge [his or her] claims across the line from conceivable to plausible," is the complaint properly dismissed. Id. at 1952. While the plausibility requirement is not akin to a probability requirement, it demands more than "a sheer possibility that a defendant has acted unlawfully." Id. at 1949. This plausibility inquiry is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950.

ANALYSIS

A. Defendants' Exhibits

In ruling upon a motion to dismiss, the court may consider matters which may be judicially noticed pursuant to Federal Rule of Evidence 201. See Mir v. Little Co. of Mary Hospital, 844 F.2d 646, 649 (9th Cir. 1988); Isuzu Motors Ltd. v. Consumers Union of United States, Inc., 12 F. Supp. 2d 1035, 1042 (C.D. Cal. 1998). Rule 201 permits a court to take judicial notice of an adjudicative fact "not subject to reasonable dispute" because the fact is either "(1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). The court can take judicial notice of matters of public record, such as pleadings in another action and records and reports of administrative bodies. See Emrich v. Touche Ross & Co., 846 F.2d 1190, 1198 (9th Cir. 1988).

"Even if a document is not attached to a complaint, it may be incorporated by reference into a complaint if the plaintiff refers extensively to the document or the document forms the basis of the plaintiff's claim." United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). "The defendant may offer such a document, and the district court may treat such a document as part of the complaint, and thus may assume that its contents are true for purposes of a motion to dismiss under Rule 12(b)(6)."

Id. The policy concern underlying the rule is to prevent plaintiffs "from surviving a Rule 12(b)(6) motion by deliberately omitting references to documents upon which their claims are based." Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998).

Plaintiff's first claim for relief, an action to quiet title, is dependent upon plaintiff having a current interest in the property. Greenpoint's Exhibit 3 and Wells Fargo's Exhibit G show the current title to the property in question. Accordingly, the court will treat the exhibits as part of the complaint and assume that their contents are true for purposes of the motions to dismiss. Ritchie, 342 F.3d at 908.

B. Violation of 15 U.S.C. § 1639(H), TILA and HOEPA

Plaintiff's ninth, twelfth, and thirteenth causes of action are based on violations of 15 U.S.C. § 1639(h), the Truth in Lending Act ("TILA"), and the Home Ownership and Equity Protection Act ("HOEPA"), respectively. (Compl. ¶¶ 86, 109-11, 123.) In plaintiff's opposition to the motion to dismiss, he concedes he no longer wishes to pursue actions based on HOEPA. (Pl.'s Opp. at 11:18-22.) Presumably, this concession also applies to plaintiff's claims under TILA and 15 U.S.C. § 1639(h), as plaintiff has failed to address these claims in his opposition and both would be barred for the same reason as the HOEPA claim----the residential mortgage loan in question does not fall under the purview of TILA. See 15 U.S.C. § 1602(aa).

Accordingly, defendants' motions to dismiss plaintiff's ninth, twelfth, and thirteenth claims for relief are GRANTED without leave to amend.

C. RESPA

Plaintiff's sixteenth claim is for violation of the Real Estate Settlement Procedures Act ("RESPA") against defendant Greenpoint. 12 U.S.C. 2601 et. seq. Greenpoint has moved to dismiss this claim on the basis that plaintiff has failed to plead any facts which could constitute a RESPA violation. (Greenpoint's MTD, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.