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Lucero v. Diversified Investments Inc.

August 31, 2010


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


Defendants Countrywide Bank NA and Recontrust Company, NA have filed a motion to dismiss the Second Amended Complaint [Doc. 20]. Their motion is unopposed. For the following reasons, the Court GRANTS the motion.


Plaintiffs seek monetary and injunctive relief for claims arising out of a refinancing of their property at 1114 Osage Drive, Spring Valley, California. Plaintiffs applied for the refinancing to Defendant Diversified Investments dba Loan Ex Funding ("Loan Ex"), and Defendant Countrywide financed their loan. The parties executed the loans in March 2006.*fn2

Plaintiffs allege that Countrywide and Loan Ex falsified the loan documents and failed to make proper disclosures in connection with the loans. They could not understand the English-language loan documents because they are native Spanish speakers. Plaintiffs' home was sold in a foreclosure sale in January 2009.

Plaintiffs hired a lawyer in the summer of 2009, and it was not until then that they discovered the numerous purported violations in the loan application, loan modification requests, and foreclosure process, among other things.

The Court dismissed several of Plaintiffs' claims in an earlier order dated May 10, 2010. Plaintiffs have filed a Second Amended Complaint ("SAC"), which alleges six causes of action: (1) intentional misrepresentation, (2) breach of fiduciary duty, (3) violations of the Truth in Lending Act ("TILA"), (4) violation of the Real Estate Settlement Procedures Act ("RESPA"), (5) violation of California Civil Code § 1632, and (6) violation of California Business and Professions Code § 17200 et seq.


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).


The Court addresses Plaintiffs' six claims to determine if any of them state a claim for relief.

1. Intentional Misrepresentation Claim

The elements of an intentional misrepresentation claim are (1) a misrepresentation; (2) knowledge of its falsity; (3) intent to induce reliance; (4) justifiable reliance; and (5) resulting damage. Anderson v. Deloitte & Touche, 56 Cal. App. 4th 1468, 1474 (1997). In addition to stating facts for each element, a claim for negligent misrepresentation must be alleged with particularity under Rule 9(b). Neilson v. Union Bank of California, 290 F. Supp. 2d 1101, 1141 (C.D. Cal. 2003) (citing Glen Holly Entertainment, Inc. v. Tektronix, Inc., 100 F. Supp. 2d 1086, 1093 (C.D. Cal. 1999). That means a complaint "must adequately specify the statements it claims were false or misleading, give particulars as to the respect in which plaintiff contends the statements were fraudulent, state when and where the statements were made, and identify those responsible for the statements." In re GlenFed, Inc. Securities Litigation, 42 F.3d 1541, 1548 (9th Cir. 1994) (en banc). And a complaint cannot lump defendants together; plaintiffs must "differentiate their allegations when suing more than one defendant . . . and inform each defendant separately of the allegations surrounding his alleged participation in the fraud." Swartz v. KPMG LLP, 476 F.3d 756, 764--65 (9th Cir. 2007).

Plaintiffs have not stated their claim with particularity. Although they allege generally that Defendants misrepresented the interest rate and other features of the loan they received, in each allegation they lump all three Defendants together or refer to both LoanEx and Countrywide. Never do they allege who specifically made the misrepresentations or when they made them. For example, they allege that "[d]uring the loan transaction and to date, Defendants LOANEX and COUNTRYWIDE defrauded Plaintiffs by concealing or suppressing" several material facts from Plaintiffs. The problem with this allegation is obvious. Not only does it refer to a time period all the way from the origination of the loan up until the filing of the Complaint, it also ...

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