MEMORANDUM AND ORDER RE: MOTION TO DISMISS
Plaintiff Jennifer Grant brought this action against defendants WMC Mortgage Corp. ("WMC"), Shea Mortgage, Inc. ("Shea"), Stewart Title Company of Sacramento ("Stewart"), Wells Fargo Bank, N.A. dba America's Servicing Company ("ASC"), Jennifer Talley, Mike Smith, NDEX West, LLC ("NDEX"), Barrett Daffin Frappier Treder & Weiss ("Barrett Daffin"), and Deutsche Bank National Trust Company ("Deutsche Bank") arising out plaintiff's mortgage transaction. Presently before the court is defendants ASC and Deutsche's motion to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).
I. Factual and Procedural Background
In December 2005, plaintiff entered into discussions with Mike Smith, an agent for Shea, to broker a mortgage loan to purchase the property located at 3533 20th Avenue in Sacramento, California. (Compl. ¶¶ 11-12.) On April 3, 2006, plaintiff obtained a $204,800 first and $51,200 second mortgage from WMC, secured by a Deed of Trust on the property. (Id. ¶¶ 12, 15, 19.) Plaintiff alleges that she was lured into this loan by misrepresentations by Shea and WMC about the affordability and terms of the loan. (Id. ¶¶ 91, 315-16.) The Complaint further alleges that Shea and WMC failed to provide proper disclosures concerning the terms of the loan in violation of the Truth in Lending Act, 15 U.S.C. §§ 1601-1667f. (Id. ¶¶ 20, 199, 203, 216-247.)
ASC eventually became the servicer of plaintiff's loan. (Id. ¶¶ 31-32.) Plaintiff eventually defaulted on the loans and ASC commenced foreclosure proceedings. (Id. ¶¶ 146-47.) ASC and NDEX filed a Notice of Default and Election to Sell Under Deed of Trust in Sacramento County on April 3, 2009. (Def.'s Req. Judicial Notice Ex. B.) NDEX subsequently filed a Notice of Trustee Sale on plaintiff's property on July 20, 2009. (Id.)
On January 13, 2010, plaintiff allegedly sent ASC a Qualified Written Request ("QWR") pursuant to the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. §§ 2601-2617. (Compl. ¶ 512.) ASC allegedly received the QWR on January 18, 2010 but failed to respond to plaintiff's request. (Id. ¶¶ 513, 517.)
Plaintiff hired counsel who contacted ASC requesting that the date of the foreclosure sale on her home be extended to February 17, 2010. (Id. ¶¶ 148-50.) On February 4, 2010, plaintiff's attorney contacted ASC and was allegedly informed by an ASC agent that there was no foreclosure sale scheduled for February 17, 2010. (Id. ¶¶ 151-158.) Plaintiff's attorney was then referred to ASC's "Short Sale Liquidation Department" who allegedly also told counsel that there was no foreclosure sale date associated with plaintiff's property. (Id. ¶¶ 165-68.) However, a foreclosure sale did in fact take place on February 17, 2010, where defendants sold plaintiff's property to Deutsche. (Id. ¶¶ 42, 170.)
Plaintiff subsequently filed this action in Sacramento County Superior Court, which was subsequently removed to this court on May 5, 2010. (Docket No. 2.) The Complaint alleges eighteen state and federal claims against nine defendants. ASC filed a motion to dismiss those causes of action in the Complaint against it on May 12, 2010, which Deutsche subsequently joined. (Docket No. 10.)
On a motion to dismiss, the court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322 (1972). To survive a motion to dismiss, a plaintiff needs to plead "only 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). This "plausibility standard," however, "asks for more than a sheer possibility that a defendant has acted unlawfully," and where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 556-57).
In general a court may not consider items outside the pleadings upon deciding a motion to dismiss, but may consider items of which it can take judicial notice. Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994). A court may take judicial notice of facts "not subject to reasonable dispute" because they are either "(1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201.
ASC submitted a two requests for judicial notice. ASC requests the court take judicial notice of several publically recorded documents related to plaintiff's mortgage. (Docket Nos. 7, 12.) The court will take judicial notice of these documents, since they are matters of public record whose accuracy cannot be questioned. See Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001).
In response to defendants' motion, plaintiff submitted an opposition that conceded that many of plaintiff's claims must be amended to survive a motion to dismiss. Specifically, plaintiff requests that the court grant her leave to amend her claims for wrongful foreclosure, breach of contract, breach of the implied covenant of good faith and fear dealing, violations of TILA, violations of RESPA, and fraud to cure various defects in pleading. Plaintiff also did not oppose defendants' arguments in favor of dismissal of her claims under the Rosenthal Fair Debt Collection Practices Act, Cal. Civ. Code §§ 1788.1-1788.33; California Civil Code sections 1916.7(1)(c), 1916.7(b)(2), 1918.5-1921, 1916.7(A)(8), and 1637; and California Financial ...