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Osei v. GMAC Mortgage

June 18, 2010

PATRICK OSEI, PLAINTIFF,
v.
GMAC MORTGAGE; COUNTRYWIDE HOME LOANS, INC.; GREENPOINT MORTGAGE FUNDING, INC.; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; PELLETIER FINANCE, INC., DBA DELTA MORTGAGE AND REAL ESTATE; JEFFREY ALAN PELLETIER; JEFFREY PAUL OLSON; JEFFREY BRYAN DELORA; BANK OF AMERICA, FKA COUNTRYWIDE HOME LOANS, INC.; ETS SERVICES, LLC; AND DOES 1-20, INCLUSIVE, DEFENDANTS.



ORDER: GRANTING DEFENDANT GMAC MORTGAGE‟S MOTION TO DISMISS

This matter comes before the Court on Defendant GMAC Mortgage‟s ("Defendant‟s" or "GMAC‟s") Motion to Dismiss (Doc. #33) Plaintiff Patrick Osei‟s ("Plaintiff‟s") First Amended Complaint ("FAC")(Doc. #23) pursuant to Federal Rule of Civil Procedure 12(b)(6), and Defendant‟s Motion to Strike (Doc. #34) portions of the FAC pursuant to Federal Rule of Civil Procedure 12(f). Plaintiff opposed the motions. (Doc. #35). For the reasons explained below, this Court GRANTS Defendant‟s Motion to Dismiss.*fn1

I. FACTUAL AND PROCEDURAL BACKGROUND

On January 25, 2007, Plaintiff entered into a loan agreement with Defendant Delta Mortgage and Real Estate ("Delta"). (FAC ¶ 37.) The loan was secured by the Deed of Trust to real property located at 5458 Tares Circle, Elk Grove, California ("the subject property"). (Id. ¶¶ 7, 37.) The Deed of Trust identified Marin Conveyancing Corporation as a trustee for the loan. (Id. ¶ 37.) Plaintiff claims Defendant Jeffrey Bryan Delora placed him into loan inappropriate for his financial situation by fraudulently overstating Plaintiff‟s income on the loan application. (Id. ¶¶ 29-34.) Plaintiff claims GMAC is a loan servicer and began demanding mortgage payments sometime after Plaintiff acquired the loan for the subject property. (Id. ¶ 8.) Plaintiff also claims GMAC did not give him notice that it acquired servicing rights to Plaintiff‟s loan. (Id. ¶¶ 19, 39.)

On September 9, 2008, Defendant ETS Services, LLC ("ETS") filed a Notice of Default on Plaintiff‟s loan. (Id. ¶ 40.) On September 11, 2008, ETS recorded a Notice of Trustee‟s Sale ("Notice") of the subject property which identified ETS as the trustee under the Deed of Trust. (Id. ¶ 41.) On October 9, 2009 a Substitution of Trustee was drafted for Defendant Mortgage Electronic Registration Systems, which assigned ETS as its successor. (Id. ¶ 42.) Plaintiff claims that GMAC is now attempting to obtain title to the subject property (Id. ¶ 46.)

Plaintiff alleges that on June 18, 2009, a Qualified Written Request ("QWR") was mailed to GMAC. (Id. ¶ 43.) Plaintiff claims that the QWR "properly identified the Plaintiff, identified the loan in question, a statement of reasons for Plaintiff‟s belief that the account was in error due to fraud at the inception of the loan, improper charges added to the loan, the improper increase in the principal balance of Plaintiff‟s Loan, and requested specific servicing related information from [Defendant]." (Id.) Plaintiff claims that Defendant failed to properly respond to the QWR. (Id.)

Plaintiff filed this action alleging ten federal and state causes of action against numerous defendants. Specifically, Plaintiff brings the following causes of action against GMAC:

(1) violations of the Real Estate Settlement Procedures Act ("RESPA"); (2) violations of California‟s Rosenthal Fair Debt Collection Practices Act ("RFDCPA"); (3) negligence; (4) fraud; (5) violations of California Business and Professions Code; (6) and wrongful foreclosure. (Id. ¶¶ 67-92, 107-30, 152-60.)

Defendant has filed two motions. First, Defendant seeks to dismiss Plaintiff‟s FAC for failure to state a claim. Second, Defendant seeks to strike paragraphs of the FAC pertaining to punitive damages for failure to allege facts sufficient to show that he is entitled to punitive damages as a matter of law. Plaintiff opposes Defendant‟s motions, and alternatively, requests that he be given leave to amend his FAC.

II. OPINION

A. Legal Standard

1. Motion to Dismiss

A party may move to dismiss an action for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). In considering 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). Assertions that are mere "legal conclusions," however, are not entitled to the assumption of truth. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To survive a motion to dismiss, a plaintiff needs to plead "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. It is inappropriate to "assume that the [plaintiff] can prove facts that [he or she] has not alleged or that the defendants have violated...laws in ways that have not been alleged." Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). Dismissal is appropriate where the plaintiff fails to state a claim supportable by a cognizable legal theory. Balistreri v. Pacifica Police Dep‟t, 901 F.2d 696, 699 (9th Cir. 1990).

Upon granting a motion to dismiss, a court has discretion to allow leave to amend the complaint. See Fed. R. Civ. P. 15(a). "Dismissal with prejudice and without leave to amend is not appropriate unless it is clear...that the complaint could not be saved by amendment." Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2002).

2. Motion to Strike

A court may "strike from a pleading...any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). "[T]he function of a 12(f) motion to strike is to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial." Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). A court should not grant a motion to strike "unless the matter to be stricken clearly could have no possible ...


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