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). Presently pending before the court is defendant Federal Deposit Insurance Corporation's ("FDIC"), as Receiver for IndyMac Federal Bank, F.S.B., motion to dismiss and/or for summary judgment, filed May 27, 1010. The motion was taken under submission without oral argument after plaintiff failed to file an opposition. Having reviewed the papers in support of the motion, the undersigned now issues the following findings and recommendations.
Plaintiff filed this action on March 25, 2009, claiming that the mortgage transaction she obtained from IndyMac Bank is illegal because defendant imposed harsh exit penalties, and did not give her proper disclosures concerning adjustable rate mortgages. The complaint alleges violations of the Truth in Lending Act ("TILA"), Cal. Bus. & Prof. Code § 17200, et seq., Real Estate Settlement Procedures Act ("RESPA"), breach of the covenant of good faith and fair dealing, fraud, and quiet title. Plaintiff seeks declaratory and injunctive relief, including that the trustee's sale be set aside, as well as rescission and restitution. On June 10, 2009, the court stayed the action pursuant to a stipulation of the parties to complete the administrative claims process. On April 29, 2010, pursuant to a request by defendant, the stay was lifted.
I. LEGAL STANDARD FOR MOTION TO DISMISS
On a Rule12(b)(1) motion to dismiss for lack of subject matter jurisdiction, plaintiff bears the burden of proof that jurisdiction exists. See, e.g., Sopcak v. Northern Mountain Helicopter Serv., 52 F.3d 817, 818 (9th Cir.1995); Thornhill Pub. Co. v. General Tel. & Electronics Corp., 594 F.2d 730, 733 (9th Cir. 1979). Different standards apply to a 12(b)(1) motion, depending on the manner in which it is made. See, e.g., Crisp v. U.S., 966 F. Supp. 970, 971-72 (E.D. Cal. 1997).
First, if the motion attacks the complaint on its face, often referred to as a "facial attack," the court considers the complaint's allegations to be true, and plaintiff enjoys "safeguards akin to those applied when a Rule 12(b)(6) motion is made." Doe v. Schachter, 804 F. Supp. 53, 56 (N.D. Cal. 1992). Presuming its factual allegations to be true, the complaint must demonstrate that the court has either diversity jurisdiction or federal question jurisdiction. For diversity jurisdiction pursuant to 28 U.S.C. § 1332, plaintiff and defendants must be residents of different states. For federal question jurisdiction pursuant to 28 U.S.C. § 1331, the complaint must either (1) arise under a federal law or the United States Constitution, (2) allege a "case or controversy" within the meaning of Article III, § 2, or (3) be authorized by a jurisdiction statute. Baker v. Carr, 369 U.S. 186, 198, 82 S.Ct. 691, 699-700, 7 L.Ed. 2d 663 (1962).
Second, if the motion makes a "factual attack" on subject matter jurisdiction, often referred to as a "speaking motion," the court does not presume the factual allegations of the complaint to be true. Thornhill, 594 F.2d at 733. In a factual attack, defendant challenges the truth of the jurisdictional facts underlying the complaint. "Faced with a factual attack on subject matter jurisdiction, the trial court may proceed as it never could under Rule 12(b)(6). . . . No presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Id. (quotations and citation omitted). The court may hear evidence such as declarations or testimony to resolve factual disputes. Id.; McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988).*fn1
The FDIC is acting as receiver for IndyMac Bank, a failed financial institution.
The Financial Institutions Reform, Recovery, and Enforcement Act of 1989 ("FIRREA") granted this power to FDIC and created a mandatory administrative claims process. Pursuant to 12 U.S.C. §§ 1821(d)(3)(A) and (d)(5)(D), the FDIC has the power to determine claims as filed by claimants with the receiver. Under § 1821(d)(13)(D), courts have no jurisdiction over claims against the failed bank unless jurisdiction is otherwise authorized in section 1821(d). Section 1821(d)(6) provides as follows:
(6) Provision for agency review or judicial ...