The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Presently before this court are defendant's motions to dismiss plaintiff's complaint and to expunge lis pendens.*fn1 The court has fully considered the parties' briefs and the entire record in this case and, for the reasons stated below, will grant plaintiff's motion to dismiss and permit plaintiff leave to amend her complaint. The court will deny without prejudice the motion to expunge lis pendens and accompanying request for attorneys' fees.
Plaintiff Chieu Edwards, proceeding without counsel, filed a complaint in San Joaquin County Superior Court on December 24, 2009. (Dkt. No. 2-2.) On January 12, 2010, defendant Aurora Loan Services, LLC ("Aurora" or "defendant") filed a notice of removal pursuant to 28 U.S.C. §§ 1331, 1367, 1441 and 1446. (Dkt. No. 2.)
Plaintiff's complaint appears to allege that there was a dispute involving real property in Lathrop, California. Plaintiff avers that she "has proof that the property was paid off with a proper form of payment." (Dkt. No. 2-2 at 2.) Plaintiff also asserts numerous affirmative defenses. (Id. at 3.) For relief, plaintiff seeks costs, fees and a monetary judgment in the amount of $2,610,000.00. (Id. at 3-4.) Plaintiff argues that the property in question should be awarded to her with "title free and clear, due to full payment being offered and rejected by the bank. . . ." (Dkt. No. 2-2 at 3.)
Defendant seeks to dismiss this complaint for failure to state a claim.*fn3 Defendant argues that plaintiff borrowed $597,400.00 under a promissory note to purchase a home located in Lathrop, California. (Dkt. No. 8-3 at 6.) Defendant contends that on August 1, 2008, plaintiff breached her promise to repay the indebtedness. (Id.) Non-judicial foreclosure proceedings commenced, and the subject property was sold at public auction on July 29, 2009. (Dkt. No. 8-3 at 7.) On December 17, 2009, a Trustee's Deed Upon Sale was recorded in favor of defendant in the San Joaquin County Recorder's Office. (Id.)
Defendant's argument challenging the sufficiency of the complaint is twofold. First, defendant contends that plaintiff has not alleged any viable causes of action; instead, plaintiff's complaint consists of vague factual allegations following by a list of affirmative defenses. Second, defendant argues that the facts, as pled by plaintiff, do not demonstrate that plaintiff is entitled to relief. Defendant avers that the form of payment tendered by plaintiff, a bonded promissory note, is not an acceptable form of payment, does not satisfy the real property debt, and thus the Deed of Trust was properly foreclosed upon.
Additionally, defendant seeks an order of this court expunging a lis pendens placed on the subject real property by plaintiff. (Dkt. No. 11.) From the documents attached to defendant's motion, it appears that plaintiff recorded the lis pendens with the San Joaquin County Recorder's office on October 30, 2009. In the lis pendens, plaintiff stated that a civil action had been instituted in the San Joaquin County Court, although there is no evidence that a civil action commenced until December 24, 2009. (Dkt. No. 13-2 at 37.) Plaintiff stated in the lis pendens that the amount at issue was $2,610,000.00, and that she sought to impose an equitable lien over the real property. (Id.)
Finally, defendant seeks attorneys' fees and costs in the amount of $1,250.00, which are potentially recoverable under California Code of Civil Procedure section 405.38 to a party prevailing on an expungement motion.
In response to defendant's motions, plaintiff contends that defendant failed to answer "point by point" the allegations of the complaint, thereby providing plaintiff with a right of rescission under the Truth in Lending Act ("TILA"). Plaintiff also contends that the entity who foreclosed on her home had no right to do so. Finally, plaintiff avers that a "Bonded Promissory Note" is "legal tender for all debts." (Dkt. No. 25 at 2.)
II. MOTION TO DISMISS PURSUANT TO RULE 12(b)(6)
On a motion to dismiss, the court construes the pleading in the light most favorable to plaintiff and resolves all doubts in plaintiff's favor. Parks School of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). The complaint's factual allegations are accepted as true. Church of Scientology of Cal. v. Flynn, 744 F.2d 694 (9th Cir. 1984). In order to survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), however, 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, 545 (2007). Factually unsupported claims framed as legal conclusions, and mere recitations of the legal elements of a claim, do not give rise to a cognizable claim for relief. See Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1951 (May 18, 2009), citing Twombly, 550 U.S. at 555.
Pro se pleadings, such as the one at issue, are held to a less stringent standard than those drafted by lawyers. Erickson v. Parduc, 551 U.S. 89 (2007);Haines v. Kerner, 404 U.S. 519, 520-21 (1972). So-called "inartful pleading" by parties appearing pro se should not penalize a pro se litigant, particularly in civil rights actions. Thompson v. Davis, 295 ...