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Tiskiy v. Bank of America Home Loans

April 30, 2010


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


Previously pending on this court's law and motion calendar for February 4, 2010, was a motion to dismiss by defendants Countrywide Home Loans, Inc. d/b/a/ America's Wholesale Lender, Recontrust Company, N.A., and Mortgage Electronic Registration Systems, Inc.*fn1 Plaintiff made no appearance.*fn2 Robert Padway appeared for all defendants. For the reasons stated in this opinion, the court recommends that defendants' motion to dismiss be granted.


Defendants removed this action from state court on November 24, 2009. The complaint, filed September 9, 2009, seeks to prevent a foreclosure sale based on alleged violations by defendants. Plaintiff entered into a loan agreement with America's Wholesale Lender on November 7, 2006. (Compl. ¶ 10; Ex. A; Defs.' Ex. A.) Plaintiff was served with a Notice of Default on April 15, 2009, and with a Notice of Trustee's Sale on August 19, 2009. (Id. at ¶¶ 11, 12; Ex. C.) The complaint alleges claims under the Real Estate Settlement Procedures Act (" RESPA"), the Home Ownership and Equity Protection Act of 1994 ("HOEPA"), the Fair Debt Collection Practices Act ("FDCPA"), and state law claims for quiet title, rescission under Cal. Civ. Code § 1632, rescission based on fraud, unfair business practices under Cal. Bus. and Prof. Code § 17200 et seq., breach of fiduciary duty, and breach of the covenant of good faith and fair dealing. Plaintiff seeks declaratory and injunctive relief, as well as damages.



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).

A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity to amend, unless the complaint's deficiencies could not be cured by amendment. See Noll v. Carlson, 809 F. 2d 1446, 1448 (9th Cir. 1987).


A. Federal Debt Collections Practices Act (15 U.S.C. § 1692) and Rosenthal FDCPA (Cal. Civ. Code § 1788.1(b))

Plaintiff raises the FDCPA in her fourth and fifth causes of action, for unfair debt collection practices and for unfair business practices, respectively. Plaintiff alleges that she purchased a residential property, and entered into a loan agreement secured by a first deed of trust. She further alleges, in essence, that a mortgage (trust deed) servicing company, ReconTrust Company, instituted non-judicial foreclosure proceedings against her because of an alleged default.*fn3

In 1977 Congress enacted the Fair Debt Collection Practices Act (FDCPA) in response to national concern over "the use of abusive, deceptive and unfair debt collection practices by many debt collectors." 15 U.S.C. ยง 1692(a). The purpose of the FDCPA is "to protect consumers from a host of unfair, harassing, and deceptive debt collection practices without imposing unnecessary restrictions on ethical debt ...

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