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Gusenkov v. Residential Mortgage Capital

August 9, 2010

VLADIMIR GUSENKOV, PLAINTIFF,
v.
RESIDENTIAL MORTGAGE CAPITAL, INC., ET AL., DEFENDANTS.



FINDINGS & RECOMMENDATIONS

The following motions came on for hearing August 5, 2010: defendant Residential Mortgage Capital, Inc.'s ("Residential") June 29, 2010 motion to dismiss and defendants Indymac Mortgage Services ("Indymac") and Mortgage Electronic Registration System's ("MERS") June 21, 2010 motion to dismiss. Plaintiff appeared in pro per. Jonathan Seigel appeared for defendant Residential. William Harmsen appeared for defendants Indymac and MERS. Upon review of the motions and the documents in support and opposition, upon hearing the arguments of plaintiff and counsel and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:

Plaintiff alleges defendants violated federal and state laws in the execution and servicing of a mortgage agreement.

FACTUAL HISTORY

On or about July 1, 2005, plaintiff obtained a mortgage loan for $332,000.00 secured by a deed of trust against real estate (5311-13 Wallaby Way, North Highlands, Sacramento CA 95660 ("the property")). The deed of trust identifies Residential as the lender, MERS as the nominee beneficiary, and Chicago Title as the trustee, with plaintiff as the borrower. (First Amended Complaint ("FAC"), Ex. 2.) Notice of default was recorded on January 15, 2009. (FAC, Ex. 3.) The property was sold on February 15, 2010.

Plaintiff alleges that the defendants do not have authority to conduct any non-judicial foreclosure sale. After alleging that lenders have participated in a "scheme" to "tak[e] as much equity as possible and artificially driv[e] up housing prices," plaintiff claims that MERS has no standing to assert an interest in the property. Plaintiff further claims that Residential misrepresented the terms of the agreement and withheld material facts, and claims that the promissory note is a forgery. He also asserts that he did not receive required documents and disclosures, including the TILA disclosures and the required number of copies of the Notice of Right to Cancel. Plaintiff claims he is entitled to, inter alia, damages and rescission.

PROCEDURAL HISTORY

On August 21, 2009, plaintiff filed a complaint in state court. On May 5, 2010, plaintiff filed a FAC against defendants Residential, Indymac, MERS and NDEX West, LLC,*fn1 for (1) violation of the Truth in Lending Act ("TILA"), 15 U.S.C. §§ 1601 et seq.; (2) violation of the California Rosenthal Fair Debt Collection Practices Act ("RFDCPA"), California Civil Code §§ 1788 et seq.; (3) negligence; (4) violation of the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. §§ 2601 et seq.; (5) breach of fiduciary duty; (6) fraud; (7) violation of California's Unfair Competition Law ("UCL"), California Business & Professions Code §§ 17200 et seq.; and (8) breach of implied covenant of good faith and fair dealing.

On June 9, 2010, this action was removed to federal court by Residential. On June 21, 2010, Indymac and MERS filed a motion to dismiss. On June 29, 2010, Residential filed a motion to dismiss.

On July 9, 2010, plaintiff filed an opposition to Residential's motion to dismiss. On July 21, 2010, Residential filed a reply. On July 27, 2010, plaintiff filed a tardy opposition to Indymac and MERS's motion to dismiss.

STANDARDS

The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal sufficiency of the complaint. N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). "Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1974 (2007). Thus, a defendant's Rule 12(b)(6) motion challenges the court's ability to grant any relief on the plaintiff's claims, even if the plaintiff's allegations are true.

In determining whether a complaint states a claim on which relief may be granted, the court accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989).

The court is permitted to consider material properly submitted as part of the complaint, documents not physically attached to the complaint if their authenticity is not contested and the complaint necessarily relies on them, and matters of public record. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001). Matters of public record include pleadings and other papers filed with a court. Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986). The court need not accept as true conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

Defendants request the court take judicial notice of a trustee's deed upon sale, wherein it is noted that the property at issue in this action was told for $114,577.21 on February 15, 2010.

Defendants Indymac and MERS also request the court take judicial notice of the deed of trust for the property at issue. The deed shows that plaintiff obtained a mortgage loan for $332,000.00 secured by a deed of trust against real estate recorded on July 1, 2005. The deed of trust identifies Residential as the lender, MERS as the nominee beneficiary, and Chicago Title as the trustee, with plaintiff as borrower.

Defendants' request for judicial notice will be granted.

ANALYSIS

I. Federal ...


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