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Moses v. GMAC Mortgage

July 14, 2010

CLARK MOSES, PLAINTIFF,
v.
GMAC MORTGAGE, LLC, DEFENDANT.



The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge

ORDER GRANTING IN-PART AND DENYING IN-PART DEFENDANT'S MOTION TO DISMISS AND MOTION TO STRIKE [DOC. 20]

On September 8, 2009, Plaintiff Clark Moses filed this lawsuit against Defendant GMAC Mortgage, LLC ("GMACM"). On April 21, 2010, GMACM moved to dismiss and strike Plaintiff's First Amended Complaint ("FAC") under Federal Rules of Civil Procedure 12(b)(6) and 12(f) (the "Motion"). (Doc. 20.) Moses opposes the Motion.

The Court decides the matter on the papers submitted and without oral argument pursuant to Civil Local Rule 7.1(d)(1). For the following reasons, the Court GRANTS IN-PART and DENIES IN-PART GMACM's Motion (Doc. 20).

I. BACKGROUND

On March 12, 2007, Moses obtained a mortgage loan from MortgageIt to refinance real property located at 1034 Silver Oak Place, Chula Vista, California. (FAC [Doc. 18], ¶ 13.) Moses alleges that MortgageIt subsequently assigned the loan to GMACM. (Id., ¶¶ 9, 25.)

In early 2009, Moses began having difficulty making payments on his mortgage. On May 9, 2009, GMACM served Moses with a Notice of Default, and a trustee's sale was scheduled for September 11, 2009. (FAC, ¶ 26.)

On September 8, 2009, Moses filed this lawsuit. The initial complaint was dismissed with leave to amend. On April 1, 2010, Moses filed the FAC asserting causes of action for violation of the Truth in Lending Act (TILA), 15 U.S.C. § 1601; violation of the Real Estate Settlement Procedures Act (RESPA), 12 U.S.C. § 2601; violation of California Business & Professions Code § 17200; fraud-misrepresentations; fraud-concealment, and; declaratory judgment. On April 20, 2010, GMACM filed the pending Motion.

II. MOTION TO DISMISS -RULE 12(B)(6)

A. Legal Standard

The court must dismiss a cause of action for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) tests the complaint's sufficiency. See North Star Int'l v. Arizona Corp. Comm'n., 720 F.2d 578, 581 (9th Cir. 1983). All material allegations in the complaint, "even if doubtful in fact," are assumed to be true. Id. The court must assume the truth of all factual allegations and must "construe them in light most favorable to the nonmoving party." Gompper v. VISX, Inc., 298 F.3d 893, 895 (9th Cir. 2002); see also Walleri v. Fed. Home Loan Bank of Seattle, 83 F.3d 1575, 1580 (9th Cir. 1996).

As the Supreme Court recently explained, "[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964 (2007). Instead, the allegations in the complaint "must be enough to raise a right to relief above the speculative level." Id. at 1964-65. A complaint may be dismissed as a matter of law either for lack of a cognizable legal theory or for insufficient facts under a cognizable theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984).

Generally, courts may not consider material outside the complaint when ruling on a motion to dismiss. Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). However, courts may consider documents specifically identified in the complaint whose authenticity is not questioned by parties. Fecht v. Price Co., 70 F.3d 1078, 1080 n.1 (9th Cir. 1995) (superceded by statutes on other grounds). Moreover, courts may consider the full text of those documents, even when the complaint quotes only selected portions. Id. Courts may also consider material properly subject to judicial notice without converting the motion into one for summary judgment. Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994) (citing Mack v. South Bay Beer Distribs., Inc., 798 F.2d 1279, 1282 (9th Cir. 1986); abrogated on other grounds by Astoria Federal Savings and Loan Ass'n v. Solimino, 501 U.S. 104 (1991)).

B. A Reasonable Inference may be Drawn that GMACM, as the Assignee, Owns the Loan

GMACM argues that Moses failed to allege sufficient facts to support the claim that GMACM is the assignee of the loan. Specifically, GMACM argues that its "status as an assignee is a legal conclusion, and bare assertions of legal conclusions, without factual allegations to support those conclusions, are insufficient to satisfy federal pleading requirements." (Motion, 7:11.)

Moses, however, does not simply allege that GMACM was the assignee. Rather, Moses alleges that MortgageIt "assigned the loan to GMAC[M] in either 2007, 2008, or 2009. . . ." (FAC, ¶ 25.) From this factual allegation, a reasonable inference may be drawn that GMACM is an assignee.

GMACM nevertheless argues that even if Moses sufficiently alleged that it is an assignee, he has not established that GMACM is either an owner of the obligation or an assignee for more than administrative convenience, a requirement under TILA. See 15 U.S.C. §1641.

Although it is true that the FAC does not make specific allegations with regard to the loan's ownership, such an inference can be drawn from Moses's allegation that GMACM is currently "the servicer [of the] loan obligation and an assignee of MortgageIt." (FAC, ¶ 9, emphasis added.) Because the Court must construe all material allegations and reasonable inferences in the light most favorable to the nonmoving party, the Court finds that Moses has adequately alleged that GMACM is liable under TILA as an assignee and owner of the mortgage.*fn1

C. Moses's TILA Damage Claims are time Barred

GMACM argues that Moses's TILA claims for damages are time barred. ...


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