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Anderson v. Bank of America

August 10, 2010

SABRINA ANDERSON, PLAINTIFF,
v.
BANK OF AMERICA, A BUSINESS FORM UNKNOWN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hon. Dana M. Sabraw United States District Judge

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS [Docket No. 9]

This case comes before the Court on Defendants Bank of America Corporation and Recontrust Company, N.A.'s motion to dismiss Plaintiffs' First Amended Complaint ("FAC"). Plaintiff filed an opposition to the motion, and Defendants filed a reply. For the reasons discussed below, the Court grants in part and denies in part Defendants' motion.

I. BACKGROUND

On or about April 29, 2005, Plaintiff Sabrina Anderson received a loan from Defendant First National Bank of Arizona. The loan was secured by a Deed of Trust on Plaintiff's home located at 1800 Knight Ferry Drive, Chula Vista, CA 91913. The property is currently subject to foreclosure proceedings.

On March 30, 2010, Plaintiff filed the present case against Defendants Bank of America ("BofA"), First National Bank of Arizona and Recontrust Company ("Recontrust") in San Diego Superior Court alleging claims for violation of the Truth in Lending Act ("TILA"), violation of the Real Estate Settlement Procedures Act ("RESPA") and California Business and Professions Code § 17200. On April 19, 2010, Defendants BofA and Recontrust removed Plaintiff's case to this Court. Plaintiff thereafter filed a First Amended Complaint in which she deleted her claims under TILA and RESPA, and added claims for fraudulent and negligent misrepresentation and for violation of California Civil Code § 2923.5. In response to the FAC, Defendants BofA and Recontrust filed the present motion.

II. DISCUSSION

Defendants move to dismiss the FAC in its entirety. They argue each of Plaintiff's claims fails to state a claim for relief. Plaintiff disputes Defendants' arguments and opposes dismissal of her claims.

A. Standard of Review

In two recent opinions, the Supreme Court established a more stringent standard of review for 12(b)(6) motions. See Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). To survive a motion to dismiss under this new standard, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556).

"Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950 (citing Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007)). In Iqbal, the Court began this task "by identifying the allegations in the complaint that are not entitled to the assumption of truth." Id. at 1951. It then considered "the factual allegations in respondent's complaint to determine if they plausibly suggest an entitlement to relief." Id. at 1951.

B. California Business and Professions Code § 17200

The first claim at issue in this motion is Plaintiff's claim that Defendants violated California Business and Professions Code § 17200. Defendants argue this claim is preempted by TILA, Plaintiff lacks standing to pursue this claim, and Plaintiff has failed to plead a predicate violation of the law.

1. Preemption

Defendants argue Plaintiff's 17200 claim is preempted by TILA. Their preemption argument consists of three sentences, and contains one citation to a case involving the Home Owners Loan Act, Silvas v. E*Trade Mortgage Corp., 514 F.3d 1001 (9th Cir. 2008). This conclusory argument is ...


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