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.

Tiqui v. First National Bank of AZ

April 5, 2010

FLORENTINO TIQUI, ET AL., PLAINTIFF,
v.
FIRST NATIONAL BANK OF AZ, ET AL., DEFENDANT.



The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS

Defendant PennyMac Loan Services has filed a Motion to Dismiss the Complaint [Doc. 4]. For the following reasons, the Court GRANTS in part and DENIES in part the Motion.

I. BACKGROUND*fn1

In August 2007, Plaintiffs Florentino and Aida Tiqui received a $451,250 mortgage loan from First National Bank of Arizona ("First National"). Plaintiffs used their real property located at 10172 Drumcliff Avenue, San Diego, CA 92126 (the "Property") to secure the loan. First National later assigned their beneficial interest in the loan to Defendant PennyMac Loan Servicing, LLC.

Defendants Premier Mortgage Funding, acting as broker, and First National represented that Plaintiffs could receive "very favorable loans," but Plaintiffs ultimately received "a worse loan." (Compl. ¶ 15.) Plaintiffs were unable to make their monthly payments and defaulted. As a result, a notice of default and notice of trustee's sale were recorded against the Property in April and July of 2009, respectively.*fn2 The Complaint does not allege that the Property has been foreclosed.

Plaintiffs allege a laundry list of claims, including (1) a violation of the Real Estate Settlement Procedures Act ("RESPA"), (2) a violation to the Truth-In-Lending Act ("TILA"), (3) a violation of California Civil Code § 1632 for failure to provide a Spanish-language contract, (4) unfair competition under California Business and Professions Code § 17200, (5) negligent misrepresentation, (6) fraud, (7) rescission, (8) quasi contract, and (9) determination of validity of lien.

II. LEGAL STANDARD

Under Federal Rule of Civil Procedure 8(a)(2), the plaintiff is required only to set forth a "short and plain statement of the claim showing that the pleader is entitled to relief," and "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). When reviewing a motion to dismiss, the allegations of material fact in plaintiff's complaint are taken as true and construed in the light most favorable to the plaintiff. See Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). But only factual allegations must be accepted as true-not legal conclusions. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. Although detailed factual allegations are not required, the factual allegations "must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. Furthermore, "only a complaint that states a plausible claim for relief survives a motion to dismiss." Iqbal, 129 S.Ct. at 1949.

III. DISCUSSION

A. First Cause of Action -- Violation of RESPA

Plaintiffs first allege that Defendants violated RESPA by failing to respond to a Qualified Written Request ("QWR"). The provision of RESPA at issue provides:

(e) Duty of loan servicer to respond to borrower inquiries

(1) Notice of receipt of inquiry

(A) In general

If any servicer of a federally related mortgage loan receives a qualified written request from the borrower (or an agent of the borrower) for information relating to the servicing of such loan, the servicer shall provide a written response acknowledging receipt of the correspondence within 20 days (excluding legal public holidays, Saturdays, and Sundays) unless the action requested is taken within such period.

(B) Qualified written request

For purposes of this subsection, a qualified written request shall be a written correspondence, other than notice on a payment coupon or other payment medium supplied by the servicer, that--

(i) includes, or otherwise enables the servicer to identify, the name and account of the borrower; and

(ii) includes a statement of the reasons for the belief of the borrower, to the extent applicable, that the account is in error or provides sufficient detail to the servicer ...


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.