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Lucero v. Countrywide Bank N.A.

May 10, 2010

RAUL AND ARELI LUCERO, PLAINTIFFS,
v.
COUNTRYWIDE BANK N.A., ET AL., DEFENDANTS.



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

Defendants Countrywide Bank, N.A. and Recontrust Company, N.A. have filed a Motion to Dismiss Plaintiffs' First Amended Complaint [Doc. 11]. Plaintiffs filed an Ex-Parte Motion for Leave to File a Late Opposition [Doc. 14]. For the following reasons, the Court GRANTS in part and DENIES in part the Motion to Dismiss [Doc. 11] and GRANTS the ExParte Motion [Doc. 14].

I. BACKGROUND*fn1

Plaintiffs seek monetary and injunctive relief for claims arising out of a purchase-money mortgage they used to buy property at 1114 Osage Drive, Spring Valley, California. Plaintiffs financed the purchase through loans from Defendant Countrywide and Defendant Diversified Investments dba Loan Ex Funding ("Loan Ex"). The parties executed the loans in March 2006.*fn2

Plaintiffs allege that Countrywide and Loan Ex falsified the loan documents and failed to make proper disclosures in connection with the loans. They also allege that Countrywide failed to comply with the Making Home Affordable Refinance program by failing to modify the terms of their loan.

Plaintiffs' home was sold in a foreclosure sale in January 2009. Before the foreclosure, Plaintiffs were never offered options to avoid it or modify their loan.

Plaintiffs hired a lawyer in the summer of 2009, and it was not until then that they discovered the numerous purported violations in the loan application, loan modification requests, and foreclosure process, among other things.

Plaintiffs allege seven causes of action: (1) intentional misrepresentation, (2) breach of fiduciary duty, (3) violations of the Truth in Lending Act ("TILA"), (4) violation of the Real Estate Settlement Procedures Act ("RESPA"), (5) violation of California Civil Code § 1632, (6) breach of contract, and (7) violation of California Business and Professions Code § 17200 et seq.

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.

In ruling on a motion to dismiss, a court may take judicial notice of matters of public record that are not subject to reasonable dispute. Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001).

III. DISCUSSION

A. Intentional Misrepresentation

The elements of an intentional misrepresentation claim are (1) a misrepresentation; (2) knowledge of its falsity; (3) intent to induce reliance; (4) justifiable reliance; and (5) resulting damage. Anderson v. Deloitte & Touche, 56 Cal. App. 4th 1468, 1474 (1997). The statute of limitations for intentional misrepresentation, a form of fraud, is three years, starting on the date of discovery by the aggrieved party. Cal. Civ. Proc. Code ยง 338(d). The aggrieved party is deemed to have discovered ...


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