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Parrish v. Indymac Bank

July 13, 2010

DANYALE PARRISH, PLAINTIFF,
v.
INDYMAC BANK, INC., A DIVISION OF ONEWEST BANK, INC., A WASHINGTON CORPORATION; AND ALL PERSONS UNKNOWN, CLAIMING ANY LEGAL OR EQUITABLE RIGHT, TITLE, ESTATE, LIEN, OR INTEREST IN THE PROPERTY DESCRIBED IN THE COMPLAINT ADVERSE TO PLAINTIFF‟S TITLE, OR ANY CLOUD ON PLAINTIFF‟S TITLE THERETO; AND DOES 1-20, INCLUSIVE, DEFENDANTS.



ORDER GRANTING DEFENDANT‟S MOTION TO DISMISS

This matter comes before the Court on Defendant OneWest Bank, Inc.‟s ("Defendant‟s") Motion to Dismiss (Doc. #8) Plaintiff Danyale Parrish‟s ("Plaintiff‟s") First Amended Complaint ("FAC") (Doc.1), for failure to state a claim pursuant to Federal Rule of Civil Procedure ("FRCP") 12(b)(6), or in the alternative, for a more definite statement pursuant to FRCP 12(e). Plaintiff partially opposes the motion.*fn1 (Doc. #9). Plaintiff does not oppose the dismissal of five claims: fraud/concealment, negligence, breach of fiduciary duty, unfair business practices and negligent infliction of emotional distress. (Plaintiff‟s Opposition, pg. 3, FN. 1). Accordingly, these claims are dismissed, with prejudice. For the reasons explained below, the remainder of Defendant‟s Motion to Dismiss is also granted, with prejudice.

I. FACTUAL AND PROCEDURAL BACKGROUND

In September 2006, Plaintiff obtained a mortgage loan to refinance her residential property located at 883 Meadowridge Drive, Fairfield, CA 94534 ("subject property"). Indymac was the loan originator and lender on the subject property. The terms of the loan were memorialized in the promissory Note which was secured by a Deed of Trust on the subject property. The Deed of Trust was recorded on September 21, 2006.

Plaintiff alleges she discovered significant loan irregularities and statutory violations related to the loan. Plaintiff alleges that she did not receive required disclosures, that the defendants placed her into a loan without regard for other products better suited for her, and defendants did not verify her income. Plaintiff defaulted on the loan. Defendant OneWest has instituted foreclosure proceedings on the subject property.

In the FAC, Plaintiff alleges that Indymac is a division of OneWest Bank, Inc. As a result, all allegations in the FAC combine the defendants. However, Defendant OneWest argues that it is a separate entity, and that it was not in existence at the time Plaintiff‟s loan was originated. Therefore, Defendant argues that it is not responsible for Indymac‟s alleged misdeeds during loan origination. In Plaintiff‟s opposition brief she states that she does not oppose Defendant‟s motion to dismiss to the extent it argues it was not in existence at the time of the loan‟s origination, related to the causes of action for fraud, negligence, breach of fiduciary duty, unfair business practices and negligent infliction of emotional distress.

II. OPINION

A. Legal Standard

A party may move to dismiss an action for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 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 (1975), 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, 1950 (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. 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 pursuant to Federal Rule of Civil Procedure 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, L.L.C. v. Aspeon, Inc., 316 F. 3d 1048, 1052 (9th Cir. 2003).

Generally, the Court may not consider material beyond the pleadings in ruling on a motion to dismiss for failure to state a claim. There are two exceptions to this rule: when material is attached to the complaint or relied on by the complaint, or when the court takes judicial notice of matters of public record, provided the facts are not subject to reasonable dispute. Sherman v. Stryker Corporation, 2009 WL 2241664 at *2 (C.D. Cal. Mar. 30, 2009) (internal citations omitted). Here, Plaintiff attached to the FAC documents relating to the issuance of a temporary restraining order in state court, which enjoined the defendants from engaging in the foreclosure of the subject property. The Court will take judicial notice of these documents.

Defendant requests judicial notice of the documents in connection with Indymac‟s receivership and OneWest‟s creation. Plaintiffs do not dispute the authenticity of these documents, all of which are matters of public record. Accordingly, the Court takes judicial notice as requested.

B. Cancellation of Deed

Plaintiff brings a claim for "cancellation of deed," alleging that "there is in existence a certain written instrument that purports to be a Deed of Trust with Defendant as the designated beneficiary... the above recited actions and omissions of Defendants and each of them in acquiring the invalid Deed of Trust were willful and or/or reckless and were intended or done without regard to injury to Plaintiff, who is indeed damaged." (FAC, pg. 6) Plaintiff alleges the deed should be cancelled as a result of alleged violations of the Truth in Lending Act ("TILA"), the Real Estate Settlement Procedures Act ("RESPA"), the Equal Credit Opportunity Act ("ECOA") and the Gramm, Leach-Bliley Act ("GLBA"), as well as for other acts such as not placing Plaintiff in an "appropriate financial product." However, as discussed above, Plaintiff also stated in her opposition brief that she does not oppose Defendant‟s motion to dismiss to ...


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