The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiffs are proceeding in this action pro se. Presently before the court is defendant U.S. Bank's motion to dismiss, filed May 27, 2010.*fn1 Plaintiffs did not file an opposition.*fn2 After reviewing the moving papers, the court now issues the following findings and recommendations.
Defendant U.S. Bank National Association, Successor in Interest to Federal Deposit Insurance Corporation as Receiver for Downey Savings and Loan Association, F.A., removed this action to federal court on May 24, 2010. The complaint, filed April 19, 2010 in superior court by Jose and Cesar Nunez, claim that defendant negligently failed to perform a loan modification on plaintiffs' property, and after plaintiffs made payments, defendant escalated the payments to an "outrageous amount." (Compl., ¶ 12.) Plaintiffs also allege that defendant wrongfully attempted to sell their property. (Id., ¶ 7.) The complaint alleges a violation of the Truth in Lending Act ("TILA"), negligence, and unfair business practices (Cal. Bus. & Prof. Code § 17200). The complaint seeks injunctive and declaratory relief, as well as damages. DISCUSSION
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 v. Carlson, 809 F. 2d 1446, 1448 (9th Cir. 1987).
Defendant moves to dismiss for failure to state a claim under Rule 12(b)(6), and to properly plead under Rule 8. In particular, defendant claims that plaintiffs cannot challenge the foreclosure of their property because they have not tendered the undisputed obligation on their loan, that the TILA claim is time barred and deficiently pled, and that plaintiff's state law claims either fail to state a claim or are deficiently pled.
Defendant correctly argues that plaintiffs are barred by the statute of limitations which requires that an action be brought within one year for damages claims, and three years for rescission claims.
TILA violations include the failure to provide the required disclosures pursuant to 15 U.S.C. § 1631 and the failure to clearly and conspicuously disclose information relating to the "annual percentage rate" and the "finance charge" pursuant to 15 U.S.C. § 1632. To recover damages arising from alleged TILA violations, a plaintiff must file an action ...