UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
May 27, 2010
JUAN ESTRADA, AN INDIVIDUAL, PLAINTIFF,
COUNTRYWIDE HOME LOANS, INC.; RECONTRUST COMPANY, N.A.; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS; AND DOES 1 THROUGH 20, DEFENDANTS.
The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER GRANTING MOTION TO DISMISS Doc. No. 4
Plaintiff Juan Estrada brought this action for claims arising from a residential mortgage transaction. (Doc. No. 1). Defendants Bank of America, N.A. ("BOA"), successor-in-interest to Countrywide Home Loans, Inc. ("Countrywide"), Recontrust Company ("Recontrust"), and Mortgage Electronic Registration Systems ("MERS") now move to dismiss the complaint for failure to state a claim upon which relief can be granted, or in the alternative, for summary judgment. (Doc. No. 4). Plaintiff has failed to file an opposition to Defendants' motion, which may "constitute consent to the granting of the motion." CivLR 7.1(f)(3)(c). Nonetheless, the court address the merits of Wilshire's motion to dismiss.
The court finds this matter appropriate for disposition without oral argument. See CivLR 7.1(d)(1). For the following reasons, the court hereby GRANTS the motion to dismiss. At this early stage of the proceedings, however, and without a response from Plaintiff, the court declines to convert Defendants' motion to dismiss into a motion for summary judgment.
On or about January 21, 2004, Plaintiff financed the purchase of his primary residence with a mortgage provided by Countrywide. (Doc. No. 1, hereinafter "Compl.", ¶¶ 6-7). At some point, Plaintiff began having difficulty paying his mortgage. (Compl. ¶ 21). Thereafter, Recontrust filed a Notice of Default on October 9, 2009. (Compl. ¶ 22). Around November 2009, Plaintiff's counsel conducted a "forensic review" of Plaintiff's loan documents. (Compl. ¶ 24). Plaintiff's home was scheduled to be sold at auction on March 11, 2010. (Compl. ¶ 23).
II. LEGAL STANDARD
A motion to dismiss under Rule 12(b)(6) challenges the legal sufficiency of the pleadings. De La Cruz v. Tormey, 582 F.2d 45, 48 (9th Cir. 1978). In evaluating the motion, the court must construe the pleadings in the light most favorable to the plaintiff, accepting as true all material allegations in the complaint and any reasonable inferences drawn therefrom. See, e.g., Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003). While Rule 12(b)(6) dismissal is proper only in "extraordinary" cases, the complaint's "factual allegations must be enough to raise a right to relief above the speculative level." United States v. Redwood City, 640 F.2d 963, 966 (9th Cir. 1981); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The court should grant 12(b)(6) relief only if the complaint lacks either a "cognizable legal theory" or facts sufficient to support a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
Plaintiff's first two claims are for intentional misrepresentation and fraudulent concealment. Under Federal Rule of Civil Procedure 9, a Plaintiff must plead fraud with particularity. Fed. R. Civ. P. 9(b). "Averments of fraud must be accompanied by 'the who, what, when, where, and how' of the misconduct charged." Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003) (quoting Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir. 1997)). "'[A] plaintiff must set forth more than the neutral facts necessary to identify the transaction. The plaintiff must set forth what is false or misleading about a statement, and why it is false.'" Id. (quoting Decker v. GlenFed, Inc. (In re GlenFed, Inc. Sec. Litig.), 42 F.3d 1541, 1548 (9th Cir. 1994)). On a claim for fraud, then, a "pleading is sufficient under rule 9(b) if it identifies the circumstances constituting fraud so that a defendant can prepare an adequate answer from the allegations." Moore v. Kayport Package Express, Inc., 885 F.2d 531, 540 (9th Cir. 1989) (citation omitted). "While statements of the time, place and nature of the alleged fraudulent activities are sufficient, mere conclusory allegations of fraud" are not. Id. Further, Rule 9(b) requires a plaintiff to attribute particular fraudulent statements or acts to individual defendants. Id.
Plaintiff's allegations fail to meet this pleading standard. Nowhere in his complaint does Plaintiff identify any individual who made a false statement, nor does he specify the time and place of the false statements. Furthermore, Plaintiff fails to "set forth what is false or misleading about a statement, and why it is false." Vess, 317 F.3d at 1106. Finally, Plaintiff's fraud claims appear to be barred by the three-year statute of limitations. See Cal. Code Civ. P. § 338(d). Accordingly, the court grants Defendants' motion to dismiss the intentional misrepresentation and fraudulent concealment claims.
Plaintiff's claims for violations of the Truth in Lending Act ("TILA"), 15 U.S.C. §§ 1601-1666j, and the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2607, appear to be time-barred. Both claims are subject to a one-year statute of limitations. 15 U.S.C. §1640(e), 12 U.S.C. § 2614. Plaintiff filed this lawsuit on March 9, 2010, over six years after obtaining the mortgage in question.
Plaintiff seeks to avoid the statute of limitations by pleading that the alleged statutory violations were discovered within one year of a "forensic review" of Plaintiff's loan documents. This allegation is insufficient to toll the statute of limitations. Plaintiff does not allege any facts to suggest that equitable tolling is appropriate; any irregularities in the loan would have been apparent from the face of the documents he received, or did not receive, at closing. Furthermore, Plaintiff does not allege facts demonstrating diligence on his part in conducting a "forensic review" prior to the expiration of the statute of limitations. Therefore, the court hereby grants Defendants' motion to dismiss the TILA and RESPA claims.
Plaintiff's final claim is for quiet title. To state a claim to quiet title, a complaint must be verified and include (1) a legal description of the property and its street address or common designation, (2) the title of the plaintiff and the basis of the title, (3) the adverse claims to the title of the plaintiff, (4) the date as of which the determination is sought, and (5) a prayer for the determination of the title of the plaintiff against the adverse claims. Cal. Civ. Proc. Code § 761.020. As the court hereby dismisses all of Plaintiff's other claims, Plaintiff has not stated an underlying theory of relief for his quiet title claim. Cf. Ankoanda v. Walker-Smith, 44 Cal. App. 4th 610, 615 (1996). Therefore, the court likewise dismisses Plaintiff's quiet title claim.
For the foregoing reasons, the court hereby GRANTS Defendants' motion to dismiss. Plaintiff shall have leave to file an amended complaint that addresses the deficiencies outlined in this order no later than June 10, 2010.
IT IS SO ORDERED.
© 1992-2010 VersusLaw Inc.