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Almunir v. Aurora Loan Service

May 25, 2010

HAYTHAM ALMUNIR, PLAINTIFF,
v.
AURORA LOAN SERVICE, LLC, ET AL,*FN1 DEFENDANT.



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

FINDINGS AND RECOMMENDATIONS

Plaintiff is proceeding in this action pro se. Presently before the court is defendants' Aurora Loan Services, LLC ("Aurora") and Mortgage Electronic Registration Systems, Inc.'s ("MERS") motion to dismiss, filed April 2, 2010.*fn2 After reviewing the parties' papers, the court now issues the following order.

BACKGROUND

Defendants removed this action to federal court on March 26, 2010. The complaint, filed February 2, 2010 in superior court, alleges only state law causes of action.

Plaintiff's opposition asserts that he obtained aloan on October 13, 2005, to refinance and consolidate multiple debts secured by his home. (Oppo. at 3.) The complaint alleges that plaintiff executed a Deed of Trust on August 23, 2005, and this date is verified by the Trustee's Deed Upon Sale. (Compl. ¶ 20; RJN, Ex. 1.) Plaintiff claims he was not provided any documents at closing and despite his efforts, documents were never provided to him at any time. (Id.) The complaint alleges that non-moving defendant "South Pacific Financial Corp dba Funding Solution Pancorp," was the original lender for plaintiff's trust deed and note. (Compl. ¶ 1.) It alleges that moving defendant Aurora was the servicer of the loan. The Trustee's Deed Upon Sale indicates that Aurora is the current title holder to the property based on the trustee's sale of December 11, 2009. (Defs.' RJN, Ex. 1.) The allegations in the complaint are that even though plaintiff defaulted on his loan on about March 16, 2009, his default was excused based on the prior breach of the terms of the notes by defendants, as well as the lack of required signature on the notice of default. (Compl. ¶ 14.) Plaintiff further alleges that the notice of trustee's sale is invalid because the notice of default and/or notice of trustee's sale did not contain the required declaration of due diligence. (Id. at ¶ 15.) The complaint also alleges that "plaintiff was never explained the full terms of their loan, including but not limited to the rate of interest[,] how the interest rate would be calculated, what the payment schedule should be, the risks and disadvantages of the loan, the prepay penalties, the maximum amount the loan payment could arise to." (Id. at ¶ 51.) Plaintiff seeks an order enjoining defendants from foreclosing on his home, cancellation of the sale and return of the property, as well as damages.

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).

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).

II. Analysis

Defendants move to dismiss based on failure to make any specific allegations against Aurora or MERS, but that the complaint only refers to all defendants as a group. The complaint fails to state any federal claims whatsoever; however, defendants argue in support of removal by claiming that plaintiff had attempted to bypass TILA's one year statute of limitations by filing state law claims which contain a longer statute of limitations period. In their declaration in support of removal, defendants contend that the action necessarily raises the federal issue of whether the 2005 loan to plaintiff met the requirements of TILA. They cite multiple paragraphs of the complaint in support. (Compl., ¶¶ 20, 51, 52, 57, 93, 108, 114, 121, 131, 138, 143, 152, 170, 176, 178.)*fn3 In anticipation of any argument that these citations state only facts supporting ...


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