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Smith v. GMAC Mortgage

April 15, 2010

SAMUEL SMITH, PLAINTIFF,
v.
GMAC MORTGAGE, LLC,*FN1 DEFENDANT.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

FINDINGS & RECOMMENDATIONS

Plaintiff is proceeding in this action pro se and in forma pauperis. Previously pending on this court's law and motion calendar for March 18, 2010 was defendant GMAC Mortgage, LLC's ("GMAC") motion to dismiss, filed on January 26, 2010. Plaintiff appeared in pro se. Defendant was represented by Natilee Riedman. After hearing oral argument and reviewing the parties' papers, the court now issues the following order.

BACKGROUND

Before the court is plaintiff's second amended complaint, filed January 12, 2010, in accordance with this court's order, filed December 16, 2009. Plaintiff initiated this action in federal court on March 9, 2009. GMAC previously moved to dismiss and strike the complaint, and the motion to dismiss was granted by order of July 31, 2009. Plaintiff then filed an amended complaint which was dismissed by order of December 16, 2009. Plaintiff was given one last opportunity to amend.

Plaintiff alleges that he obtained a loan from WMC Mortgage Co. ("WMC") on August 19, 2006. He understood that the terms were a 40 year fixed loan with payments of $1145 per month. (SAC at 2.) In October, 2006, plaintiff alleges he received a letter from the lender indicating that the loan was transferred to another lender, and it contained terms and payments "on the contrary." (Id.) Plaintiff contacted the lender about the error which had caused his payments to become $2800 per month. WMC Mortgage sent plaintiff the original notes on or about October 15, 2006. He alleges that he notified WMC that he was not going to pay for the loan, indicating that this action constituted a rescission of the loan. According to plaintiff, WMC informed him to take it up with the new lender. Plaintiff asserts that he notified every lender since that time, including Litton Loan Service, HomeQ, and GMAC, the most recent lender, but none of them acknowledged the rescission. (Id. at 2.) Plaintiff then alleges that he filed bankruptcy in March, 2008, and that case was dismissed in May, 2008. Although not entirely clear, it appears that there was a second bankruptcy proceeding which was dismissed on February 17, 2009. Plaintiff seeks the equitable return of the property and rescission. He also seeks damages in the amount of $805,532.

DISCUSSION

I. Legal Standards

In order to survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740, 96 S.Ct. 1848, 1850 (1976), construe the pleading in the light most favorable to the party opposing the motion and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1849, reh'g denied, 396 U.S. 869, 90 S.Ct. 35 (1969). The court will "'presume that general allegations embrace those specific facts that are necessary to support the claim.'" National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 256, 114 S.Ct. 798, 803 (1994), quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 2137 (1992). Moreover, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596 (1972).

The court may consider facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider facts which may be judicially noticed, Mullis v. United States Bankruptcy Ct., 828 F.2d 1385, 1388 (9th Cir. 1987); and matters of public record, including pleadings, orders, and other papers filed with the court, Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986). The court need not accept legal conclusions "cast in the form of factual allegations." Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

II. Analysis

GMAC moves to dismiss based on failure to plead any specific claims, failure to allege misconduct by GMAC or facts supporting assignee liability, inapplicability of 15 U.S.C. §§ 1541 and 45, failure to state a claim under the TILA and that such a claim is time barred, and failure to state a claim under the Home Owners Equity Protection Act.*fn2

Plaintiff has filed an opposition, claiming that GMAC is the assignee of the loan, and that plaintiff gave it proper notice of his rescission under TILA. Plaintiff also ...


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