Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Anokhin v. BAC Home Loan Servicing

August 20, 2010

IRENE ANOKHIN, PLAINTIFF,
v.
BAC HOME LOAN SERVICING, LP, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

MEMORANDUM AND ORDER

This action arises from a mortgage loan transaction in which Irene Anokhin ("Plaintiff") purchased a home in 2006. Presently before the Court is a Motion by BAC Home Loan Servicing, LP and Mortgage Electronic Registration System, Inc. ("Defendants") to Dismiss Plaintiff's First Amended Complaint ("Complaint") for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6).*fn1

For the reasons set forth below, Defendants' Motion to Dismiss is granted.

BACKGROUND*fn2

Through a mortgage transaction executed on April 10, 2006, Plaintiff purchased a home in Sacramento, California. After failing to make several payments pursuant to the terms of the mortgage, Plaintiff alleges she executed a Deed in Lieu, "granting, assigning and transferring" all of her rights and interest in the subject property on October 22, 2007. Not receiving any further correspondence from the lender, Plaintiff believed the issue was resolved.

Plaintiff defaulted on the mortgage in 2007. Defendant, BAC Home Loan Servicing, LP ("BAC"), the current servicer of Plaintiff's mortgage, commenced foreclosure proceedings. A Notice of Default was filed on November 9, 2007 indicating that the amount due under the mortgage was $14,329.56. On March 5, 2008, a Notice of Trustee's Sale was filed. A second Notice of Default was filed on May 15, 2009 which stated that the amount due under the mortgage was $64,735.08.

On July 20, 2009, Plaintiff sent to BAC what she describes as a "Qualified Written Request" ("QWR") seeking information regarding her current ownership and a detailed accounting of the amounts allegedly due under the loan. BAC has yet to respond to the QWR, which it received on July 24, 2009.

Plaintiff filed her Complaint on February 16, 2010 alleging violations of numerous state and federal claims including:

(1) Wrongful Foreclosure; (2) Quiet Title; (3) Real Estate Settlement Procedures Act, 12 U.S.C. § 2605; (4) California Business and Processional Code § 17200, et seq.; (5) Intentional Infliction of Emotional Distress; (6) Void Contract; (7) To Void and Cancel Deed of Trust; (8) California Civil Code § 2923.5; and

(9) Unfair Debt Collection Practices under the Federal Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq.

On March 15, 2010, Plaintiff filed a voluntary petition under Chapter 7 of the federal bankruptcy laws. (Pl.'s Mot. to Stay 2.) On July 19, 2010, this Court directed the parties to provide simultaneous briefing on the status of "Plaintiff's Chapter 7 Bankruptcy Proceedings, any pending or forthcoming stays, and how such matters apply in this case." (ECF No. 16.) As indicated in parties' supplemental briefing, on June 9, 2010, the trustee in Plaintiff's bankruptcy action filed a Report of Abandonment of Real Property, including the subject property in this civil suit. (Defs.' Supplemental Br. Exh. 1.) The Bankruptcy Court subsequently entered an order approving the report filed by the trustee and terminated the bankruptcy case on July 6, 2010.

STANDARD

On a motion to dismiss for failure to state a claim under Rule 12(b)(6), all allegations of material fact must be accepted as true and construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," in order to "give the defendant fair notice of what the...claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed. 2d 80 (1957). While 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 Atl. Corp. v. Twombly, 2007 U.S. LEXIS 5901, 20-22 (U.S. 2007) (internal citations and quotations omitted). Factual allegations must be enough to raise a right to relief above the speculative level. Id. at 21 (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004) ("The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action").

If the court grants a motion to dismiss a complaint, it must then decide whether to grant leave to amend. The court should "freely give[]" leave to amend when there is no "undue delay, bad faith[,] dilatory motive on the part of the movant,...undue prejudice to the opposing party by virtue of...the amendment, [or] futility of the amendment...." Fed. R. Civ. P. 15(a); Foman v. Davis, 371 U.S. 178, 182 (1962). Generally, leave to amend is only denied when it is clear that the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.