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Sanchez v. Greenpoint Mortgage Funding

March 4, 2010

LOURDES SANCHEZ, PLAINTIFF,
v.
GREENPOINT MORTGAGE FUNDING, INC., BANK OF AMERICA HOME LOANS, ASTEC FORECLOSURE CORPORATION, OCWEN LOAN SERVICING, LLC, COASTAL EMPIRE MORTGAGE, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS NOMINEE FOR RWPO III, LLC AS BENEFICIARY AND DOES 1-20, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS OCWEN LOAN III, LLC'S MOTION TO DISMISS; GRANTING DEFENDANT GREENPOINT MORTGAGE FUNDING INC.'S MOTION TO DISMISS; and GRANTING PLAINTIFF'S MOTION FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT Doc. No. 19, 20, 22

Plaintiff Lourdes Sanchez ("Plaintiff") filed this action raising claims related to a residential mortgage transaction. (Doc. No. 1). After Defendants Ocwen Loan Servicing, LLP ("Ocwen") and RWPO III, LLC ("RWPO") filed a motion to dismiss the complaint, Plaintiff filed a first amended complaint ("FAC") as a matter of course. (Doc. Nos. 5, 14). Ocwen and RWPO then filed a motion to dismiss the FAC. (Doc. No. 19). In addition, Defendant GreenPoint Mortgage Funding, Inc. ("GreenPoint") filed a separate motion to dismiss. (Doc. No. 20). Plaintiff filed oppositions and a motion for leave to file a second amended complaint. (Doc. Nos. 22, 23, 24). GreenPoint filed a reply. (Doc. No. 26).

The court finds this matter appropriate for determination without oral argument. See CivLR 7.1(d)(1). For the following reasons, the court hereby GRANTS IN PART and DENIES IN PART Ocwen and RWPO's motion to dismiss. The court GRANTS GreenPoint's motion to dismiss. Furthermore, the court hereby GRANTS Plaintiff's motion for leave to file a second amended complaint no later than March 19, 2010.

I. BACKGROUND

In July 2007, Plaintiff purchased a home with financing borrowed from GreenPoint. (FAC ¶ 9). Plaintiff used Defendant Coastal Empire Mortgage as her broker. (FAC ¶ 10). Plaintiff is a Spanish speaker and negotiated the loan in Spanish. (FAC ¶ 25). Nonetheless, Plaintiff's loan documents were all in English. (FAC ¶ 25). Defendant Bank of America Home Loans ("BOA") and Ocwen are or were Plaintiff's loan servicers. (FAC ¶ 11). At some point, "Plaintiff began having difficulty paying her mortgage." (FAC ¶ 28). As a result, Plaintiff received notice of a trustee's sale indicated that Plaintiff's home would be sold at a foreclosure sale in September 2009. (FAC ¶ 29). Sometime in the last year, Plaintiff conducted a "forensic audit" which allegedly revealed various irregularities and legal violations related to Plaintiff's loan. (FAC ¶¶ 12-24).

II. LEGAL STANDARD

A motion to dismiss under Rule 12(b)(6) challenges the legal sufficiency of the pleadings. De La Cruz v. Tormey, 582 F.2d 45, 48 (9th Cir. 1978). In evaluating the motion, the court must construe the pleadings in the light most favorable to the plaintiff, accepting as true all material allegations in the complaint and any reasonable inferences drawn therefrom. See, e.g., Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003). While Rule 12(b)(6) dismissal is proper only in "extraordinary" cases, the complaint's "factual allegations must be enough to raise a right to relief above the speculative level." United States v. Redwood City, 640 F.2d 963, 966 (9th Cir. 1981); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The court should grant 12(b)(6) relief only if the complaint lacks either a "cognizable legal theory" or facts sufficient to support a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

III. DISCUSSION

Plaintiff alleges nine claims against the various defendants: (1) intentional misrepresentation; (2) quiet title; (3) violation of Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2605; (4) violation of Truth in Lending Act ("TILA"); (5) violation of RESPA, 12 U.S.C. §§ 2607, 2608; (6) violation of California Business and Professions Code section 17200; (7) violation of California Civil Code section 2923.6; (8) violation of California Civil Code section 2923.5; and (9) violation of California Civil Code section 1632.*fn1

A. Ocwen and RWPO's Motion to Dismiss

1. Claims Not Asserted Against Ocwen and RWPO

Ocwen and RWPO seek to dismiss a number of claims that Plaintiff does not appear to assert against Ocwen and RWPO. In her opposition, Plaintiff verifies that these claims are indeed not alleged against Ocwen and RWPO. Therefore, insofar as it is necessary, the court dismisses the first (intentional misrepresentation), fourth (Truth in Lending Act), fifth, (RESPA §§ 2607 and 2608), and sixth (Cal. Civ. Code § 17200) claims against Ocwen and RWPO.

In addition, Plaintiff contends that in her second amended complaint, she will not assert the seventh (Cal. Civ. Code. § 2923.6) and ninth (Cal. Civ. Code § 1632) claims against any defendant. This admission indicates that Plaintiff has not and cannot state a claim for violations of these ...


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