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Vissuet v. Indymac Mortgage Services

March 19, 2010


The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court


Currently before the Court is a Motion to Dismiss the First Amended Complaint brought by Defendant OneWest Bank, FSB as Successor in Interest to Certain Assets and Liabilities of IndyMac Bank, FSB ("OneWest"). Having considered the parties' arguments, and for the reasons set forth below, the Court GRANTS IN PART and DENIES IN PART the motion.


I. Parties

Frida Vissuet ("Vissuet") is the owner of certain real property commonly known as 2234 MOROSE STREET, LEMON GROVE, CALIFORNIA 91945 ("Property").

OneWest is the current owner of all beneficial interest under the Deed of Trust executed by Vissuet. The original lender under the Deed of Trust was PacificBanc Mortgage. (Def. MTD, Ex. A.) OneWest became the beneficial owner on July 13, 2009, through an assignment by Mortgage Electronic Registration Systems, Inc., acting as a nominee for PacificBanc Mortgage. (Id., Ex. C.) The Assignment of Deed of Trust was recorded on July 23, 2009. (Id.)

Quality Loan Services is the current trustee. The original trustee under the Deed of Trust was LandAmerica Southland Title. (Id., Ex. A.) Quality Loan Services was substituted as a trustee on June 20, 2009. (Id., Ex. D.)The Substitution of Trustee was recorded on August 4, 2009. (Id.)

II. Factual Background

On July 24, 2007, Vissuet executed a Deed of Trust securing a loan in the amount of $360,000 from PacificBanc Mortgage. According to Vissuet, this was an Alternative-A loan,*fn1 and it consisted of a "refinance" of the first deed on the Property. (FAC ¶ 4.) On June 20, 2009, after Vissuet defaulted on her loan, Quality Loan Services recorded and served a Notice of Default on the Property. (See Def. MTD, Ex. B.) On September 25, 2009, Quality Loan Services recorded a Notice of Trustee's Sale of the Property in the amount of $379,660.17, setting October 15, 2009 as the date of sale. (Id., Ex. E.)

Upon receipt of the Notice of Trustee's Sale, Vissuet contacted IndyMac and requested loan modification. She was allegedly told that if she completed and submitted the loan modification application, IndyMac would postpone the trustee's sale. (FAC ¶ 9.) Vissuet alleges that based upon that promise, she completed and submitted her loan modification application. (Id. ¶ 10.) However, after Vissuet submitted the application, she was informed by IndyMac that there was nothing that could be done to stop the trustee's sale of the Property. (Id.) As a result, Vissuet filed the present suit. After the action was commenced, Vissuet received in the mail two additional letters from IndyMac, dated November 2 and November 5, indicating that IndyMac was willing to work with Vissuet on a loan modification. (See, e.g., id., Ex. B.)

III. Procedural Background

Vissuet filed the present complaint on October 13, 2009, in the Superior Court for the County of San Diego, alleging four causes of action. OneWest subsequently removed the case to this Court on October 19, 2009. On November 10, 2009, Vissuet moved for a Temporary Restraining Order ("TRO") to avoid an impending trustee's sale. The Court granted the motion for TRO and scheduled a hearing on the preliminary injunction for November 23, 2009. After the hearing, the Court denied the request for preliminary injunction and dissolved the TRO. [Doc. No. 12]. On December 4, 2009, Vissuet filed her First Amended Complaint ("FAC"), alleging five causes of action: (1) for predatory lending against IndyMac; (2) for breach of contract against all Defendants; (3) for fraud against all Defendants; (4) for violation of Section 2923.52 et seq. of the California Civil Code against all Defendants; and (5) for declaratory and injunctive relief against all Defendants. [Doc. No. 14].

Subsequently, on January 13, 2010, OneWest filed the present Motion to Dismiss the FAC pursuant to Fed. R. Civ. P. 12(b)(6). Vissuet filed a late opposition, and OneWest filed a reply.*fn2


A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the pleadings. A complaint survives a motion to dismiss if it contains "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). The court may dismiss a complaint as a matter of law for: (1) "lack of cognizable legal theory," or (2) "insufficient facts under a cognizable legal claim." SmileCare Dental Group v. Delta Dental Plan of Cal., 88 F.3d 780, 783 (9th Cir. 1996) (citation omitted). The court only reviews the contents of the complaint, accepting all factual ...

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