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Gamez v. Mortgage Electronic Registration Systems

February 25, 2010


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


Defendant Mortgage Electronic Registration Systems, Inc. ("MERS") filed a motion on October 23, 2009, in which it seeks an order dismissing the five claims alleged against it in Plaintiff's complaint under Federal Rule of Civil Procedure 12(b)(6). (Docket No. 35.) For the reasons stated below, MERS' dismissal motion is GRANTED.


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 Rule 12(b)(6) dismissal motion, 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.

Plaintiff opposes the motion, and includes in his opposition a request that judicial notice be taken of five documents: a February 17, 2009 Assignment of Note and Deed of Trust, a February 12, 2009 Notice of Default and Election to Sell Under Deed of Trust, a May 18, 2009 Notice of Trustee's Sale, an article entitled "Foreclosure, Subprime Mortgage Lending, the Mortgage Electronic Registration System," and an article entitled "The MERS Fifty Million Mortgage Meltdown." MERS objects to judicial notice being taken of the two articles, arguing "they are not proper matters for judicial notice" since "[t]he articles do not state 'facts' that are generally known" or "whose accuracy cannot be reasonably questioned." (Objection to Pl.'s Request for Judicial Notice ("RJN") 2:7-16.)

"Although, as a general rule, a district court may not consider materials not originally included in the pleadings in deciding a Rule 12 motion, . . . it may take judicial notice of matters of public record and consider them without converting a Rule 12 motion into one for summary judgment." United States v. 14.02 Acres of Land, 547 F.3d 943, 955 (9th Cir. 2008) (quotations and citations omitted). Matters judicially noticed must either be "generally known within the territorial jurisdiction of the trial court" or "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b).

The copies of the Notice of Default and Notice of Trustee's Sale of which Plaintiff requests judicial notice be taken are unreadable; only the copy of the Assignment of Note and Deed of Trust is readable. Therefore, only the Assignment of Note and Deed of Trust will be judicially noticed. See Hotel Employees and Restaurant Employees Local 2 v. Vista Inn Mgmt. Co., 393 F. Supp. 2d 972, 978 (N.D. Cal. 2005) (finding that taking judicial notice of official records did not convert dismissal motion into motion for summary judgment). Further, the two articles Plaintiff submitted will not be judicially noticed since they are not "facts" for which judicial notice is proper. See Fed. R. Evid. 201(b).


Plaintiff completed a mortgage loan on his property located at 3588 Archetto Drive in El Dorado Hills, California, on or about December 9, 2005. (Compl. ¶¶ 7, 33.) "The terms of the loan were memorialized in a promissory note which in turn was secured by a Deed of Trust on the property. The Deed of Trust identified First American Title Insurance Company, as trustee and IndyMac Bank, F.S.B. as [the] [l]ender." (Id. ¶ 33.) The Deed of Trust also identified MERS as the beneficiary and nominee for the lender and the lender's successors and assigns. (Id. ¶ 34.) Plaintiff alleges MERS is "engaged in the business of holding title to mortgages." (Id. ¶ 9.)

MERS executed an Assignment of Deed of Trust on February 17, 2009, in which it assigned and transferred to IndyMac Federal Bank FSB, "all beneficial interest under . . . [the] Deed of Trust dated 12/9/2005 and executed by [Plaintiff] Antonio M. Gamez . . . ." (RJN Ex. A.) The Assignment was recorded on May 26, 2009. (Id.)

Plaintiff filed his complaint in this action on June 11, 2009, alleging ten claims against seven named defendants and twenty "Doe" defendants. ...

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