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Suetos v. Bank of America National Association

March 8, 2010

DEMA SUETOS, PLAINTIFF,
v.
BANK OF AMERICA NATIONAL ASSOCIATION, ET AL., DEFENDANTS.



ORDER AND FINDINGS AND RECOMMENDATIONS

On March 17, 2009, plaintiff, proceeding pro se, filed this action and paid the required filing fee. The Clerk issued summons for nine defendants. The case was referred to the undersigned pursuant to Local Rule 302(c)(21).

Five defendants have filed motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). On May 22, 2009, the case came before the court for hearing on the amended motion to dismiss filed by defendant Bank of America, N.A. (Doc. No. 20). Jason M. Julian, Esq. appeared telephonically for the defendant. On June 5, 2009, the case came before the court for hearing on the motion to dismiss filed by defendant JPMorgan Chase Bank, N.A. (Doc. No. 21). Valerie Brennan, Esq. appeared telephonically for moving defendant JPMorgan Chase Bank, and Jason Julian, Esq. appeared telephonically for defendant Bank of America N.A. On July 9, 2009, the case came before the court for hearing on the motion to dismiss filed by defendant Mortgage Electronic Registration Systems, Inc. (Doc. No. 36). Geoffrey Brethren, Esq. appeared for moving defendant Mortgage Electronic Registration Systems, Inc., and Jason Julian, Esq. appeared telephonically for defendant Bank of America, N.A. On August 14, 2009, the case came before the court for hearing on the re-noticed motion to dismiss complaint and to expunge lis pendens filed by defendants Lehman Brothers Bank FSB and Aurora Loan Services, LLC (Doc. No. 10). Victoria Edwards, Esq. appeared telephonically for defendants Aurora Loan Services, LLC (formerly known as Aurora Loan Services, Inc.) and Aurora Bank (formerly known as Lehman Brothers Bank FSB). Plaintiff did not appear for any of the hearings.

Upon consideration of all written materials filed in connection with the motions, the arguments at the hearing, and the entire file, the undersigned recommends that all of defendants' motions to dismiss be granted and this action be dismissed with prejudice.

LEGAL STANDARDS APPLICABLE TO DEFENDANTS' MOTIONS TO DISMISS

The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal sufficiency of the complaint. N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). "Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Thus, a defendant's Rule 12(b)(6) motion challenges the court's ability to grant any relief on the plaintiff's claims, even if the plaintiff's allegations are true.

In determining whether a complaint states a claim on which relief may be granted, the court accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). In general, pro se complaints are held to less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, the court need not assume the truth of legal conclusions cast in the form of factual allegations. W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). The court is permitted to consider material which is properly submitted as part of the complaint, documents not physically attached to the complaint if their authenticity is not contested and the plaintiff's complaint necessarily relies on them, and matters of public record. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001).

With regard to claims of fraud, "the circumstances constituting fraud . . . shall be stated with particularity." Fed. R. Civ. P. 9(b). "Rule 9(b) serves not only to give notice to defendants of the specific fraudulent conduct against which they must defend, but also 'to deter the filing of complaints as a pretext for the discovery of unknown wrongs, to protect [defendants] from the harm that comes from being subject to fraud charges, and to prohibit plaintiffs from unilaterally imposing upon the court, the parties and society enormous social and economic costs absent some factual basis.'" Bly-Magee v. California, 236 F.3d 1014, 1018 (9th Cir. 2001) (quoting In re Stac Elec. Sec. Litig., 89 F.3d 1399, 1405 (9th Cir. 1996)). Thus, pursuant to Rule 9(b), a plaintiff alleging fraud at a minimum must plead evidentiary facts such as the time, place, persons, statements and explanations of why allegedly misleading statements are misleading. In re GlenFed, Inc. Sec. Litig., 42 F. 3d 1541, 1547 n.7 (9th Cir. 1994); see also Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003); Fecht v. Price Co., 70 F.3d 1078, 1082 (9th Cir. 1995).*fn1

PLAINTIFF'S COMPLAINT

Plaintiff's claims arise from non-judicial foreclosure proceedings on a mortgage loan she obtained in 2006. At some point, plaintiff became unable to pay her monthly payments in full. In March 2008, plaintiff received a notice of default and election to sell under deed of trust. (Compl. (Doc. No. 1) ¶¶ 21-22, 33-34.) Plaintiff alleges defects in the processing of her mortgage loan in 2006 and the default process in 2008. (Id. ¶¶ 23, 29-32, 35-41.) Plaintiff alleges that she has suffered harm and incurred a loss. (Id. ¶ 45.)

By her first and second claims for relief, asserted against all defendants, plaintiff seeks rescission of the loan transaction at issue and other statutory relief under the Truth in Lending Act (TILA), 15 U.S.C. §§ 1601, et seq. (Id. ¶¶ 46-57.) In her third claim for relief, plaintiff alleges claims against all defendants under the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692, et seq. (Id. ¶¶ 58-60.) In addition to these federal claims, plaintiff alleges conclusory claims of fraud, misrepresentation, and deceit, for which she seeks injunctive relief, including restitution and recoupment, and damages under California Business and Professions Code §§ 17200, et seq. (Id. ¶¶ 61-81.)

Plaintiff prays for rescission of the loan transaction, termination of any security interest in the property created by the loan transaction, an order requiring defendants to return any property or money given by plaintiff to defendants in connection with the loan transaction, statutory damages of at least $2,000 for the disclosure violations, statutory damages of at least $2,000 "if Defendants fail to respond properly to Plaintiff's rescission notice," statutory damages under the FDCPA, statutory damages provided by California's Unfair Competition Law, injunctive relief restraining the defendants from recording any deeds or mortgages on plaintiff's property and from taking any steps to deprive plaintiff of ownership of her property, and actual damages. (Id. at 23-24.)

PLAINTIFF'S FAILURE TO OPPOSE DEFENDANTS' MOTIONS

Defendants filed their motions to dismiss between April 13, 2009, and June 5, 2009. Plaintiff did not file written opposition to any of the motions and did not appear at any of the hearings held on the motions between May 22, 2009, and August 14, 2009. It appears from the court's docket for this case that plaintiff filed two returns of service on May 21, 2009, but has filed nothing else with the court since this action was commenced on March 17, 2009.

Plaintiff's failure to appear at the four hearings on defendants' motions may, in the discretion of the court, be deemed a statement of no opposition to the granting of the motions. See Local Rule 230(i). An inference of non-opposition in the present case is supported by plaintiff's failure to file written opposition to the four motions. See Local Rule 230(c) ("No party will be entitled to be heard in ...


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