The opinion of the court was delivered by: Gregory G. Hollows U. S. Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff is proceeding pro se in this action, referred to the undersigned pursuant to Local Rule 72-302(c)(21). Previously pending on this court's law and motion calendar for June 24, 2010 was defendants' motion to dismiss, filed April 14, 2010. Plaintiff did not file an opposition but did appear at the hearing. Defendants were represented by Matthew Hansen, who appeared telephonically. Having heard oral argument and reviewed the papers in support of the motion, the undersigned now issues the following order and findings and recommendations.
This foreclosure action was removed from state court to this court on November 16, 2009, by defendants California Reconveyance Company ("CRC") and JPMorgan Chase Bank, N.A. ("JPMorgan"), for itself and acquirer of certain assets and liabilities of Washington Mutual Bank from the FDIC acting as Receiver, erroneously sued as Chase Bank. The complaint alleges claims for violations of TILA (15 U.S.C. § 1611), RESPA (26 U.S.C. § 2605), HOEPA (15 U.S.C. § 1602), FDCPA (15 U.S.C. § 1692), breach of fiduciary duty, breach of the covenant of good faith and fair dealing, injunctive and declaratory relief, and fraud. Defendants move to dismiss for failure to state a claim in regard to all claims, for failure to specifically plead fraud, and that JPMorgan did not assume any liabilities arising from claims by borrowers of Washington Mutual Bank.
This matter was originally scheduled for hearing on May 27, 2010; however, after plaintiff failed to oppose the motion or file a statement of non-opposition, this court issued an order to show cause why sanctions should not be imposed for this failure.
Plaintiff did not respond to the court's order to show cause; however, she appeared at the hearing. She explained only that she was working with someone on this case but their communication was not good so she did not respond to the order. Pro se status does not by itself constitute good cause; however, because plaintiff appeared at the hearing the order to show cause will be discharged and sanctions will not be imposed.
At the hearing, defendants were instructed to provide plaintiff with information on assistance she could use to try to keep her house. The parties were given two weeks after the hearing in which to file statements with the court indicating their efforts toward this end. Defendants gave her a phone number and mailed her an application for loan modification that day, as evidenced by their filing of July 8, 2010. (Docket # 18, Ex. A.) In that filing, defendants indicated that plaintiff had not submitted the loan modification application or contacted defendants with any questions concerning the application. Plaintiff also failed to file a statement as ordered by the court. Therefore, in light of plaintiff's utter failure to respond to a court ordered extension in which to oppose defendants' motion or to take advantage of defendants' offer of assistance in modifying her loan and filing a court ordered statement in that regard, the undersigned has no choice but to recommend dismissal.
I. Legal Standard for Motion to Dismiss
In order to survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "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.
In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740, 96 S.Ct. 1848, 1850 (1976), construe the pleading in the light most favorable to the party opposing the motion and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1849, reh'g denied, 396 U.S. 869, 90 S.Ct. 35 (1969). The court will "'presume that general allegations embrace those specific facts that are necessary to support the claim.'" National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 256, 114 S.Ct. 798, 803 (1994), quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 2137 (1992). Moreover, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596 (1972).
The court may consider facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider facts which may be judicially noticed, Mullis v. United States Bankruptcy Ct., 828 F.2d 1385, 1388 (9th Cir. 1987); and matters of public record, including pleadings, orders, and other papers filed with the court, Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986). The court need not accept legal conclusions "cast in the form of factual allegations."
Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity to amend, unless the complaint's deficiencies could not be cured by amendment. See Noll ...