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Dyachishin v. America's Wholesale Lenders

April 14, 2010

PETER DYACHISHIN AND GALINA DYACHISHIN, PLAINTIFFS,
v.
AMERICA'S WHOLESALE LENDERS; COUNTRYWIDE FINANCIAL CORPORATION; RECONTRUST COMPANY; BANK OF AMERICA CORPORATION; WASHINGTON MUTUAL BANK; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. AND DOES 1-50 INCLUSIVE, DEFENDANTS.



ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

This matter comes before the Court on Defendants Countrywide Home Loans d/b/a America's Wholesale Lenders ("AWL"), Countrywide Financial Corporation ("CFC"),Recontrust Company ("Recon"), Bank of America Corporation ("BofA"), and Mortgage Electronic Registration Systems, Inc. ("MERS"), ("Defendants'") Motion to Dismiss Plaintiffs' Peter Dyachishin and Galina Dyachishin ("Plaintiffs'") Complaint ("Complaint"), for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. #11). Plaintiffs oppose the motion.*fn1

(Doc. #27).

Pro se Plaintiffs filed an opposition to Defendants' Motion to Dismiss. (Doc. #14). After Defendants replied to the opposition (Doc. #20), pro se litigants hired an attorney (Doc. #24), who filed a second opposition. (Doc. #27). This second opposition also appears to be directed at Defendants. Defendants replied to this opposition as well. (Doc. #29). Though the court would not typically allow Plaintiffs to file two oppositions, because they filed the first opposition pro se and are now represented, the court will only consider the second opposition filed by their attorney.

I. FACTUAL AND PROCEDURAL BACKGROUND

In February 2007, Plaintiffs obtained a mortgage loan to refinance their residential property located at 8280 Mariposa Avenue, Citrus Heights, CA 95610 ("subject property"). The terms of the loan were memorialized in the promissory Note which was secured by a Deed of Trust on the subject property. The lender was AWL.

In July 2007, Plaintiffs obtained a Home Equity Line of Credit on the subject property. The terms of the loan were memorialized in the promissory Note which was secured by a Deed of Trust on the subject property. JPMorgan, not a party to this motion, was the lender. Plaintiffs allege that they did not understand the terms of the loan, and that Defendants mislead them. Plaintiffs bring the present lawsuit alleging violations of state and federal law.

II. OPINION

A. Legal Standard

A party may move to dismiss an action for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). In considering a motion to dismiss, the court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1975), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322 (1972). Assertions that are mere "legal conclusions," however, are not entitled to the assumption of truth. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009) (citing Bell Atl. Corp v. Twombly, 550 U.S. 544, 555 (2007)). To survive a motion to dismiss, a plaintiff needs to plead "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. Dismissal is appropriate where the plaintiff fails to state a claim supportable by a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

Upon granting a motion to dismiss, a court has discretion to allow leave to amend the complaint pursuant to Federal Rule of Civil Procedure 15(a). "Dismissal with prejudice and without leave to amend is not appropriate unless it is clear . . . that the complaint could not be saved by amendment." Eminence Capital, L.L.C. v. Aspeon, Inc., 316 F. 3d 1048, 1052 (9th Cir. 2003).

Generally, the Court may not consider material beyond the pleadings in ruling on a motion to dismiss for failure to state a claim. Sherman v. Stryker Corp., 2009 WL 2241664 at *2 (C.D. Cal. Mar. 30, 2009) (internal citations omitted). There are two exceptions: when material is attached to the complaint or relied on by the complaint, or when the court takes judicial notice of matters of public record, provided the facts are not subject to reasonable dispute. Id. Here, Defendants request judicial notice of the loan documents in connection with the first mortgage and the Deed of Trust. Plaintiffs do not dispute the authenticity of these documents, all of which are either matters of public record or relied on by the Complaint. Accordingly, the Court takes judicial notice as requested.

B. Federal Law Claims

I. Violation of the Truth in Lending Act ("TILA")

In the Opposition to the Motion to Dismiss, Plaintiffs raise the argument that Defendant violated the Truth in Lending Act, ("TILA"), 15 U.S.C. ยง1601 et seq., thereby seeking rescission and damages. "The focus of any Rule 12(b)(6) dismissal. . . is the complaint. This precludes the consideration of new allegations that may be raised in plaintiff's opposition to a motion to dismiss brought pursuant to Rule 12(b)(6)." Cordell v. Tilton, 515 F. Supp. 2d 1114, 1128 (S.D. Cal. 2007)(internal ...


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