FINDINGS AND RECOMMENDATIONS
This case came before the court on March 26, 2010, for hearing on the motion to dismiss or strike plaintiff's complaint pursuant to Federal Rules of Civil Procedure 8, 12(b)(6) and 12(f) brought on behalf of defendants Wells Fargo Home Mortgage and First American Loanstar Trustee Services. (Doc. Nos. 10 and 15.) Nathaniel Peters appeared on behalf of defendant Wells Fargo Home Mortgage and Lawrence Harris appeared telephonically on behalf of defendant First American Loanstar Trustee Services. Plaintiff did not file written opposition to the defendants' motions to dismiss nor did he appear at the hearing.*fn1 Upon consideration of all written materials filed in connection with the motion, counsels' arguments at the hearing, and the entire file, the undersigned recommends that defendants' motion be granted without leave to amend and that this case proceed only with respect to defendant HBA Mortgage, Inc. who filed an answer to plaintiff's complaint on February 16, 2010.
Plaintiff originally filed his complaint in the Sacramento County Superior Court on December 31, 2009. On February 3, 2010, defendant Wells Fargo Home Mortgage removed the action pursuant to 28 U.S.C. §§ 1441(b) and 1446 on the grounds that over plaintiff's claims for foreclosure by way of "fraudulent inducement" and "illegal usury practices" which are completely preempted under the National Bank Act (12 U.S.C. §§ 85, 86) and that this court had jurisdiction over the action pursuant to 28 U.S.C. § 1331. See Notice of Removal (Doc. No. 1).
In his verified complaint, plaintiffs alleges as follows. Defendants did "obligate him" into a fraudulent transaction with respect to his home mortgage and, along with their attorney, engaged in a foreclosure on that property "by way of fraud by way of inducement and illegal usury practices, policies and procedures." (Notice of Removal (Doc. No. 1), Compl. at 9 of 68.*fn2 ) Specifically, on November 10, 2006 defendants purported to lend plaintiff $440,000 on his home located at 2221 Portola Way in Sacramento, California. (Id at. 15.) Defendants acted in bad faith by fraudulently inducing plaintiff to enter into this loan transaction knowing that he would default on the loan. (Id.) On or about August 28, 2008 and thereafter, plaintiff wrote to the defendants making reasonable counter-offers seeking a loan modification but his offers were rejected. (Id. at 16.) Plaintiff eventually defaulted on his loan on June 7, 2009. (Id.) Defendants have failed to produce "the original blue ink certified promissory note" thereby "precluding any lawful resolution of this matter." (Id. at 19.) Plaintiff alleges that as a result of the defendants wrongful acts he has suffered damages (including those related to the loss of his home, his job, pain and suffering, etc.) in the total amount of almost $6.5 million.
At the outset, defendants have requested that the court take judicial notice of the official documents related to the matters at issue. (Doc. Nos. 11 and 16.) Specifically, defendants request that the court take judicial notice of the following official documents related to plaintiff's mortgage loan transaction: the Promissory Note signed and initialed by plaintiff on October 12, 2006; the Deed of Trust dated October 12, 2006, executed by plaintiff and recorded in the Sacramento County Recorder's Office on October 24, 2006*fn3; the Notice of Default and Election to Sell Under Deed of Trust dated May 7, 2009 and recorded with the Sacramento County Recorder's Office on May 11, 2009; the Substitution of Trustee recorded in the Sacramento County Recorder's Office on June 12, 2009; the Assignment of Deed of Trust recorded in the Sacramento County Recorder's Office on June 19, 2009; the Notice of Trustee's Sale recorded in the Sacramento County Recorder's Office on August 12, 2009 and the Trustee's Deed Upon Sale dated December 17, 2009 and recorded in the Sacramento County Recorder's Office on December 22, 2009. (Doc. No. 11, Exs. A-F; Doc. No. 16, Exs. A-D.)*fn4
Defendants' requests for judicial notice will be granted pursuant to Federal Rule of Evidence 201. See Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001) (on a motion to dismiss, court may consider matters of public record); MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986) (on a motion to dismiss, the court may take judicial notice of matters of public record outside the pleadings).
Defendants seek dismissal of plaintiff's complaint pursuant to Federal Rule of Civil Procedure 9(b) and12(b)(6) on the grounds that he has failed to state any cognizable claim.*fn5
Specifically, defendants argues that plaintiff's claim for usury under the National Bank Act is both time-barred pursuant to the applicable two-year statute of limitations and fails to state a cognizable claim because the interest rate charged to plaintiff on the loan was not in excess of that permitted by the State of South Dakota, the home state of defendant Wells Fargo Bank. Defendants also argue that plaintiff's fraud claims fail because they are not alleged with the specificity required by Rule 9(b) of the Federal Rules of Civil Procedure. Finally, defendants contend that the allegations of plaintiff's complaint fail to state cognizable claims for rescission, unfair debt collection practices, violation of the Real Estate Settlement Procedures Act (RESPA), negligence, unjust enrichment, conspiracy or wrongful foreclosure based on the alleged failure to produce the original promissory note.
As noted above, plaintiff has filed no written opposition to the motion and did not appear at the hearing on defendants' motions to dismiss.
LEGAL STANDARDS APPLICABLE TO DEFENDANTS' MOTION
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal sufficiency of the complaint. N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). "Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Thus, a defendant's Rule 12(b)(6) motion challenges the court's ability to grant any relief on the plaintiff's claims, even if the plaintiff's allegations are true.
In determining whether a complaint states a claim on which relief may be granted, the court accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). In general, pro se complaints are held to less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, the court need not assume the truth of legal conclusions cast in the form of factual allegations. W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
With regard to claims of fraud, "the circumstances constituting fraud... shall be stated with particularity." Fed. R. Civ. P. 9(b). "Rule 9(b) serves not only to give notice to defendants of the specific fraudulent conduct against which they must defend, but also 'to deter the filing of complaints as a pretext for the discovery of unknown wrongs, to protect [defendants] from the harm that comes from being subject to fraud charges, and to prohibit plaintiffs from unilaterally imposing upon the court, the parties and society enormous social and economic costs absent some factual basis.'" Bly-Magee v. California, 236 F.3d 1014, 1018 (9th Cir. 2001) (quoting In re Stac Elec. Sec. Litig., 89 F.3d 1399, 1405 (9th Cir. 1996)). Thus, pursuant to Rule 9(b), a plaintiff alleging fraud at a minimum must plead evidentiary facts such as the time, place, persons, statements and explanations of why allegedly misleading statements are misleading. In re GlenFed, Inc. Sec. Litig., 42 F.3d 1541');">42 F. 3d 1541, 1547 n.7 (9th Cir. 1994); see also Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003); Fecht v. Price Co., 70 F.3d 1078, 1082 (9th Cir. 1995).*fn6
For the reasons set forth below, the undersigned will recommend that defendants' ...