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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 DEFENDANT'S MOTION TO DISMISS

This matter comes before the Court on Defendant JPMorgan Chase Bank, N.A., an acquirer of certain assets and liabilities of Washington Mutual Bank, ("Defendant's"), Amended Motion to Dismiss Plaintiffs' Peter and Galina Dyachishin's ("Plaintiffs'") Complaint ("Complaint") for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. #18). Plaintiffs oppose the motion.*fn1 (Doc. #27).

Multiple defendants in this case filed motions to dismiss. (Doc. #11, #18). Plaintiffs filed one opposition. (Doc. #27). It is unclear to which defendants motion this opposition was intended to oppose. On the docket, Plaintiffs filed this as an opposition to Defendant's amended motion to dismiss. (Doc. #27). Thus, the court will treat it as such.

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 America's Wholesale Lenders ("AWL"), not a party to this motion.

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. Defendant was the lender.

Plaintiffs did not understand the terms of the loan and allege that Defendant mislead them.

On or about February 21, 2008, Plaintiffs deeded their interest in the subject property to Andrey Dyachishin and Tatyana Dyachishin. Plaintiffs now 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. There are two exceptions to this rule: 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. Sherman v. Stryker Corporation, 2009 WL 2241664 at *2 (C.D. Cal. Mar. 30, 2009) (internal citations omitted). Here, Defendant requests judicial notice of the loan documents in connection with the first mortgage and HELOC, and the Grant Deed ("Grant Deed") to Andrey Dyachishin and Tatyana Dyachishin. Plaintiffs do not dispute ...


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