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Durland v. Fieldstone Mortgage Co.

September 3, 2010

JOSEPH DURLAND, PLAINTIFF,
v.
FIELDSTONE MORTGAGE COMPANY; LITTON LOAN SERVICING LP; ET AL., DEFENDANT.



The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge

ORDER: (1) GRANTING DEFENDANT'S REQUEST FOR JUDICIAL NOTICE; (2) GRANTING PLAINTIFF'S REQUEST FOR JUDICIAL NOTICE; (3) GRANTING DEFENDANT'S MOTION TO DISMISS (Doc. No. 5.)

Presently before the Court is Defendant Litton Loan Servicing LP's*fn1 ("Defendant Litton") motion to dismiss Plaintiff Joseph Durland's complaint. (Doc. No. 4.) Also before the Court is Plaintiff's opposition and Defendant Litton's reply. (Doc. Nos. 6, 7.) For the reasons stated below, the Court HEREBY GRANTS Defendant Litton and Plaintiff's requests for judicial notice and GRANTS Defendant Litton's motion to dismiss.

BACKGROUND

This action arises out of an alleged note, loan and security interest obtained by Plaintiff Joseph Durland from Fieldstone Mortgage Company, loan # 1510987922 (the "loan"). (Doc. No. 1 ("Compl."), ¶¶ 4, 12.) The loan was obtained on or about October 6, 2006 to refinance real property owned by Plaintiff in Valley Center, CA (the "subject property"). (Id. ¶¶ 1, 12.) Plaintiff commenced this action by filing a complaint in this Court on January 15, 2010, asserting twelve causes of action: (1) Violation of Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2605; (2) Violation of Truth-in-Lending Act ("TILA"), 15 U.S.C. § 1601; (3) Violation of Fair Debt Collection Practice Act ("FDCPA"), 15 U.S.C. § 1692; (4) Violation of Rosenthal Fair Debt Collections Practice Act, Cal. Civ. Code § 1788; (5) Violation of Cal. Civ. Code § 2924; (6) Violation of Cal. Civ. Code § 2923.6; (7) Unfair Competition under Cal. Bus. & Prof. Code § 17200; (8) Negligent Misrepresentation; (9) Fraud; (10) Rescission; (11) Quasi-Contract; and (12) Determination of Validity of Lien. (Doc. No. 1.)

On March 23, 2010, Defendant Litton Loan Servicing LP, the only Defendant served in the action, filed a motion to dismiss. (Doc. No. 5; see also Doc. No. 4.) On April 22, 2010, Plaintiff filed a response in opposition to the motion. (Doc. No. 6.) Defendant Litton filed a reply on April 29, 2010. (Doc. No. 7.) The hearing on the motion set for May 6, 2010 was thereafter vacated and the matter was taken under submission without oral argument.

LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the defense that the complaint "fail[s] to state a claim upon which relief can be granted," generally referred to as a motion to dismiss. The Court evaluates whether a complaint states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil Procedure 8(a), which requires a "short and plain statement of the claim showing that the pleader is entitled to relief." Although Rule 8 "does not require 'detailed factual allegations,' . . . it [does] demand[] more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, -- US - , 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 557).

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible when the facts pled "allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). That is not to say that the claim must be probable, but there must be "more than a sheer possibility that a defendant has acted unlawfully." Id. Facts "'merely consistent with' a defendant's liability" fall short of a plausible entitlement to relief. Id. (quoting Twombly, 550 U.S. at 557). Further, the Court need not accept as true "legal conclusions" contained in the complaint. Id. This review requires context-specific analysis involving the Court's "judicial experience and common sense." Id. at 1950 (citation omitted). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'show[n]'-'that the pleader is entitled to relief.'" Id.

Where a motion to dismiss is granted, "leave to amend should be granted 'unless the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency.'" DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). In other words, where leave to amend would be futile, the Court may deny leave to amend. See Desoto, 957 F.2d at 658; Schreiber, 806 F.2d at 1401.

DISCUSSION

I. Requests for Judicial Notice

As a threshold matter, Defendant Litton requests that the Court take judicial notice of the following documents: the Deed of Trust which encumbers the subject property at issue, the Notice of Default and Election to Sell under that Deed of Trust, the Notice of Trustee's Sale, and the two alleged Qualified Written Requests sent to Defendant Litton and Defendant Litton's response to the first QWR. (See Doc No. 4-1, Def. Request for Judicial Notice ("Def. RJN").)

"A district court ruling on a motion to dismiss may 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." Parrino v. FHP, Inc., 146 F.3d 699, 705-06 (9th Cir. 1998) (quotation omitted). Also, "a district court ruling on a motion to dismiss may consider a document the authenticity of which is not contested, and upon which the plaintiff's complaint necessarily relies." Id. at 706. The complaint in this matter either references or necessarily relies upon each of the documents for which Defendant seeks judicial notice. The authenticity of the documents has not been challenged and Plaintiff does not oppose the request for judicial notice. Accordingly, the Court HEREBY GRANTS Defendant Litton's request for judicial notice.

Further, Plaintiff requests judicial notice of two documents submitted in support of its opposition, the Notice of Right to Cancel and an October 2006 calendar. (See Doc No. 6-1, Pl. Request for Judicial Notice ("Pl. RJN").) For the same reasons as ...


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