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Aguilar v. Mortgage

May 11, 2010

ISMAEL AGUILAR, AN INDIVIDUAL; AND MARIA DOLORES HERNANDEZ, AN INDIVIDUAL, PLAINTIFFS,
v.
CABRILLO MORTGAGE; GMAC MORTGAGE; SBMC MORTGAGE; ETS SERVICES, LLC; AND SELECT PORTFOLIO SERVICING, INC., DEFENDANTS.



The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE [Doc. No. 13]

Currently before the Court is Defendant Select Portfolio Servicing Inc.'s ("SPS") Motion to Dismiss the seventh cause of action in Plaintiffs' Second Amended Complaint ("SAC"). Having considered the parties' arguments, and for the reasons set forth below, the Court GRANTS the motion to dismiss and DISMISSES WITH PREJUDICE the seventh cause of action against Defendant SPS.

BACKGROUND

The factual and procedural backgrounds of this case have been fully set forth in this Court's previous order. See Aguilar v. Cabrillo Mortgage, No. 09-CV-1799-IEG (AJB), 2010 WL 476650, at *1 (S.D. Cal. Feb. 3, 2010). As is relevant to this motion, Plaintiffs were the owners of a single family residence located at 1202 Lagan Avenue, Vista, CA 92083 ("Property"). After Plaintiffs defaulted on their loans, the Property was sold at a foreclosure sale.

On August 19, 2009, Plaintiffs commenced this action against several Defendants, including Defendant SPS. Since then, SPS has filed three motions to dismiss. [See Doc. Nos. 4, 7, 13]. The Court denied the first motion as moot in light of Plaintiffs' First Amended Complaint ("FAC"). [See Doc. No. 6]. The Court granted the second motion on February 3, 2010, granting Plaintiffs leave to amend their only remaining cause of action against SPS. [Doc. No. 11]. On March 10, 2010, SPS filed the current motion to dismiss, seeking to dismiss the amended seventh cause of action in Plaintiffs' SAC. Plaintiff filed an opposition, and Defendant replied. The Court subsequently took the case under submission pursuant to Civil Local Rule 7.1(d)(1).

LEGAL STANDARD

A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the pleadings. A complaint survives a motion to dismiss if it contains "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S.544, 570 (2007). The court may dismiss a complaint as a matter of law for: (1) "lack of cognizable legal theory," or (2) "insufficient facts under a cognizable legal claim." SmileCare Dental Group v. Delta Dental Plan of Cal., 88 F.3d 780, 783 (9th Cir. 1996) (citation omitted). The court only reviews the contents of the complaint, accepting all factual allegations as true, and drawing all reasonable inferences in favor of the nonmoving party. al-Kidd v. Ashcroft, 580 F.3d 949, 956 (9th Cir. 2009) (citation omitted).

Despite the deference, the court need not accept "legal conclusions" as true. Ashcroft v. Iqbal, --- U.S. ---, 129 S.Ct. 1937, 1949-50 (2009). It is also improper for the court to assume "the [plaintiff] can prove facts that [he or she] has not alleged." Assoc. Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). On the other hand, "[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Iqbal, 129 S.Ct. at 1950.

DISCUSSION

Plaintiffs' seventh cause of action alleges that Defendant SPS violated the Real Estate Settlement Procedures Act ("RESPA") by failing to fully respond to Plaintiffs' Qualified Written Response ("QWR"), which was allegedly sent on or about August 11, 2009. Plaintiffs also allege that an accounting is necessary to determine if monies are owed to Plaintiffs by way of an off-set.

RESPA sets forth the procedures that a loan servicer must follow and certain actions that it must take upon receiving a QWR from a borrower. See 12 U.S.C. § 2605(e). Specifically, a "written response acknowledging receipt" of the request must be sent within 20 days, and an appropriate action with respect to the inquiry must be taken within 60 days, after the receipt of the request. See id. § 2605(e)(1)(A), (e)(2). The statute defines a "qualified written request" as:

[A] written correspondence, other than notice on a payment coupon or other payment medium supplied by the servicer, that--

(i) includes, or otherwise enables the servicer to identify, the name and account of the borrower; and

(ii) includes a statement of the reasons for the belief of the borrower, to the extent applicable, that the account is in error or provides sufficient detail to the servicer ...


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