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Blasko v. Washington Mutual Bank

August 30, 2010

LONNIE Q. BLASKO, PLAINTIFF,
v.
WASHINGTON MUTUAL BANK; ET AL., DEFENDANT.



The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE [doc. #7]

Defendants JPMorgan Chase Bank, N.A. and California Reconveyance Company move to dismiss plaintiff's complaint under Federal Rule of Civil Procedure 12(b)(6). Plaintiff has not filed an opposition to the motion.*fn1 When an opposing party does not file papers in the manner required by Civil Local Rule 7.1(e.2), the Court may deem the failure to "constitute a consent to the granting of a motion or other request for ruling by the court." CIV. L.R. 7.1(f.3.c). Even when a motion is unopposed, the Court reviews the motion on the merits to determine if cause exists to grant the motion.

Motion to Dismiss Standard

A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint. Navarro v., 250 F.3d 729, 732 (9th Cir. 2001). "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. Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks, brackets and citations omitted). Federal Rule of Civil Procedure 8(a) requires a complaint to contain "a short and plain statement of the claim showing that the pleader is entitled to relief...." FED. R. CIV. P. 8(a).

In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume the truth of all factual allegations and must construe them in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Legal conclusions need not be taken as true merely because they are cast in the form of factual allegations. Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987); W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). Similarly, "conclusory allegations of law and unwarranted inferences are not sufficient to defeat a motion to dismiss." Pareto v. Fed. Deposit Ins. Corp., 139 F.3d 696, 699 (9th Cir. 1998).

In determining the propriety of a Rule 12(b)(6) dismissal, a court may not look beyond the complaint for additional facts, e.g., facts presented in plaintiff's memorandum in opposition to a defendant's motion to dismiss or other submissions. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003); Parrino v. FHP, Inc., 146 F.3d 699, 705-06 (9th Cir. 1998); see also 2 OORE'S FEDERAL PRACTICE, § 12.34[2] (Matthew Bender 3d ed.) ("The court may not... take into account additional facts asserted in a memorandum opposing the motion to dismiss, because such memoranda do not constitute pleadings under Rule 7(a).").

A court may, however, consider items of which it can take judicial notice without converting the motion to dismiss into one for summary judgment. Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994). Judicial notice may be taken of facts "not subject to reasonable dispute" because they are either "(1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." FED. R. EVID. 201. Additionally, a court may take judicial notice of "'matters of public record' without converting a motion to dismiss into a motion for summary judgment.'" Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (quoting MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986)). Under the incorporation by reference doctrine, courts may also consider documents "whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the [plaintiff's] pleading." In re Silicon Graphics Inc. Sec. Litig., 183 F.3d 970, 986 (9th Cir.1999) (quoting Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994) (alteration in original)).

Background

On October 20, 2006, WAMU and plaintiff entered into an agreement concerning real property located in Fallbrook, California. Plaintiff executed a promissory note for one million dollars. The Note was secured by a Deed of Trust. Also, plaintiff executed a home equity line of credit agreement with WAMU and signed a Second Deed of Trust which further encumbered the property. The Deeds were recorded on October 31, 2006.

WAMU was closed by the Office of Thrift Supervision and the FDIC was appointed as the receiver on September 25, 2008. JPMORGAN annd the FDIC entered into a purchase and assumption agreement whereby JPMorgan acquired certain WAMU assets.

On June 27, 2009, a Notice of Default and Election to Sell Under Deed of Trust was issued because plaintiff was in arrears in the amount of $56,645.73 on the loans. A Notice of Trustee's Sale was recorded on October 8, 2009 and October 16, 2009.

Discussion

a. Real Party in Interest

JPMorgan contends that it did not assume liability for claims arising out of WAMU's residential mortgage loans and home equity lines of credit made prior to September 25, 2008. Because the mortgage loan at issue was executed prior to September 25, 2008, JPMorgan argues that the claims plaintiff asserts are not claims for which it has assumed liability. (Memo of Ps&As at 4-7. In support of this assertion, JPMorgan quotes from Section 2.5 of the Purchase and Assumption Agreement but fails to provide the P&A Agreement as an ...


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