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Ultreras v. Recon Trust Co.

June 7, 2010

REAL PARTY(S) IN INTEREST(S): PATRICIA ULTRERAS, PLAINTIFF,
v.
RECON TRUST COMPANY; AND/OR MERS; AND/OR COUNTRYWIDE HOME LOANS, INC.; AND/OR BANK OF AMERICA,N.A.; AND/OR ANY KNOWN OR UNKNOWN JOHN DOES, AND/OR REAL PARTY(S) IN INTEREST, DEFENDANTS.



The opinion of the court was delivered by: Dean D. Pregerson United States District Judge

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS [Motion filed on January 19, 2010]

This matter comes before the Court on a Motion to Dismiss filed by the defendants ReconTrust Company, N.A. (erroneously sued as "Recon Trust Company"); Mortgage Electronic Registration Systems, Inc. ("MERS"); Countrywide Home Loans, Inc.; and Bank of America, N.A. (collectively "Defendants"). After reviewing the papers submitted by the parties and considering the arguments raised therein, the Court GRANTS the motion and adopts the following Order.

I. BACKGROUND*fn1

The plaintiff Patricia Ultreras ("Plaintiff"), appearing pro se, filed this suit alleging various causes of action arising from a residential mortgage transaction. The gravamen of Plaintiff's Complaint is that Defendants cannot foreclose for three basic reasons: (1) they did not provide certain disclosures when providing her loan; (2) they did not produce the original note; and (3) they securitized the debt.

On September 25, 2006, Plaintiff purchased property at 138 South Bryn Mawr Street, #13, in Ventura, California, by executing a Deed of Trust for $271,920.00. (Def.'s Ex. A.) On the Deed of Trust, Countrywide was listed as the lender, ReconTrust as the trustee, and MERS as the beneficiary. (Compl. ¶¶ 26-27; Def.'s Ex. A.)

A Notice of Default was recorded against Plaintiff's property on February 20, 2009. (Def.'s Ex. B.) A Notice of Trustee's Sale was recorded on May 27, 2009, setting the sale date for June 12, 2009. (Def.'s Ex. C.) Plaintiff alleges that she "rescinded said contract" on June 17, 2009, by mailing a "Notice of Right to Cancel," a "Notice of Removal," and a "Notice of Revocation of Power of Attorney" to Defendants. (Compl. ¶ 31.)

Plaintiff asserts six causes of action against Defendants, respectively entitled (1) injunctive relief; (2) Unfair Debt Collection Practices & Predatory Lending Including TILA and RESPA Violations; (3) Failure to Be the Real Party in Interest in a Foreclosure Action; (4) Failure to be the Holder in Due Course of the Original Note and Mortgage in a Foreclosure Action; (5) Illegal Securitization of the Note; and (6) Ultra Vires.

Defendants moved to dismiss the Complaint on January 19, 2010. Plaintiff filed an opposition one day past the deadline, on February 9, 2010. In the interests of resolving Defendant's motion on the merits, the Court will nonetheless consider Plaintiff's opposition.

II. PROCEDURAL STANDARD: RULE 12(b)(6)

Pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint is subject to dismissal when the Plaintiff's allegations fail to state a claim upon which relief can be granted. When considering a 12(b)(6) motion to dismiss for failure to state a claim, "all allegations of material fact are accepted as true and should be construed in the light most favorable to [the] plaintiff." Resnick v. Hayes, 213 F.3d 433, 447 (9th Cir. 2000).

In Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009), the Supreme Court explained that a court considering a 12(b)(6) motion should first "identify[] pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth."

Id. Next, the court should identify the complaint's "well-pleaded factual allegations, . . . assume their veracity and then determine whether they plausibly give rise to an entitlement to relief."

Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) ("In sum, for a complaint to survive a motion to dismiss, the non-conclusory factual content, and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief" (internal quotation marks omitted)).

Where, as here, a plaintiff brings her action pro se, the Court applies the motion to dismiss standard against the backdrop of the general rule that courts liberally construe the pleadings of pro se ...


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