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Lopez v. U.S. Bank National Association

August 31, 2010


The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge


Defendant U.S. Bank National Association has filed a motion to dismiss the Complaint [Doc. 5]. For the following reasons, the Court GRANTS the motion.


Plaintiff alleges several causes of action related to a $1.275 million purchase-money mortgage she received on June 24, 2008. After signing for the loan, she eventually was unable to make her payments and in August 2009 a notice of default and election to sell was issued, saying she owed $136,998.72 in past due payments.*fn2 A notice of trustee's sale was recorded in November 2009.

Plaintiff wants to keep her home and cancel the foreclosure. She also wants to have her credit restored, have the loan forgiven in its entirety, and get compensatory, statutory, and punitive damages. She believes she is entitled to this relief because Defendants misrepresented the interest rate on her loan and failed to make several disclosures required by federal law, including notice of her right to rescind the mortgage. She alleges six causes of action, and the Court addresses each of them below.


Under Federal Rule of Civil Procedure 8(a)(2), the plaintiff is required only to set forth a "short and plain statement of the claim showing that the pleader is entitled to relief," and "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). When reviewing a motion to dismiss, the allegations of material fact in plaintiff's complaint are taken as true and construed in the light most favorable to the plaintiff. See Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). But only factual allegations must be accepted as true-not legal conclusions. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. Although detailed factual allegations are not required, the factual allegations "must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. Furthermore, "only a complaint that states a plausible claim for relief survives a motion to dismiss." Iqbal, 129 S.Ct. at 1949.

In ruling on a motion to dismiss, a court may take judicial notice of matters of public record that are not subject to reasonable dispute. Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001).


U.S. Bank moves to dismiss each of Plaintiff's causes of action, starting with her first claim under the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2601 et seq.

1. RESPA Claim

RESPA requires loan servicers to respond to qualified written requests ("QWR"), which are requests for information related to loan servicing, like the outstanding amount due or the interest rate. See 12 U.S.C. § 2605(e). A borrower can also use a QWR to challenge the amount due or try to correct an error by the loan servicer. See id. A QWR must be in writing and have enough information so that the servicer can identify the borrower. Id. at § 2605(e)(1)(B). If the servicer fails to respond to a QWR, the borrower can seek payment for "any actual damages to the borrower as a result of the failure." See 12 U.S.C. § 2605(f). A plaintiff must have suffered actual damages in order to recover under this provision. Eronini v. JP Morgan Chase Bank NA, No. 08-55929, 2010 WL 737841, at *1 (9th Cir. Mar. 3, 2010) (affirming dismissal of RESPA claim because plaintiff "suffered no damages").

Here, not only has Plaintiff failed to allege she suffered damages, but she nearly fails to allege that she sent a QWR at all. All she alleges is that "Defendants failed to adequately respond to Plaintiff's requests for information regrading the loan." (Compl. ¶ 24.) She does not allege when she sent the QWR, to whom, or what she asked for, and for these reasons fails to state a claim under RESPA.

Plaintiff also alleges a violation of 12 U.S.C. § 2605(c) and (d). Section 2605(c) deals with the transfer of loan servicing duties to a new servicer, and requires the new servicer to give notice to the borrower when the servicing duties have been transferred. And § 2605(d) addresses what happens when the servicer has changed but the borrower continues to send payments to the old servicer. If the payments are made on time to the old servicer, then for the sixty days after the ...

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