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Kakogui v. American Brokers Conduit

September 14, 2010

JUAN CARLOS KAKOGUI, PLAINTIFF,
v.
AMERICAN BROKERS CONDUIT, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Lucy H. Koh United States District Judge

ORDER GRANTING WITH PREJUDICE DEFENDANTS' MOTION TO DISMISS FEDERAL CLAIMS IN SECOND AMENDED COMPLAINT AGAINST DEFENDANTS ASC AND U.S. NATIONAL BANK; REMANDING TO SUPERIOR COURT FOR SANTA CRUZ COUNTY FOR CONSIDERATION OF PLAINTIFF'S STATE LAW CLAIMS

(re: docket #47 and #57)

Defendant Wells Fargo Bank, N.A., dba America's Servicing Company ("ASC") and U.S. Bank National Association, as Trustee for CMLTI 2007-10 ("U.S. National Bank") (collectively "Defendants") move to dismiss Plaintiff Juan Carlos Kakogui's Second Amended Complaint ("SAC") for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6). Prior to reassignment to this Court, the Honorable Jeremy Fogel granted a previous motion to dismiss, with leave to amend in part. See March 30, 2010 Order [dkt. #42]. In that Order, Judge Fogel identified serious deficiencies in Plaintiff's First Amended Complaint ("FAC").

Plaintiff's SAC does not remedy those deficiencies and, instead, repeats almost verbatim the language and claims in his FAC. In consideration of the moving papers, the Order granting a previous motion to dismiss, and the oral argument at the September 7, 2010 hearing, the Court GRANTS WITH PREJUDICE Defendants' motion to dismiss Plaintiff's federal claims. The Court will REMAND the case to the Superior Court for Santa Cruz County for consideration of Plaintiff has not changed in his SAC. This action arises out of two loan transactions. In the first, Plaintiff's state law claims against Defendants.

I. BACKGROUND

Judge Fogel's March 30, 2010 Order lays out the relevant facts, the substance of which Plaintiff obtained an adjustable rate mortgage loan for $608,000 secured by real property at 620 Talbor Drive, Scotts Valley, California 95066 ("the Property") from Defendant American Brokers Conduit. On the same day, Plaintiff obtained a home equity line of credit for $150,000 from American Brokers Conduit, also secured by the Property. Plaintiff subsequently defaulted on at least the first loan and, as a result, non-judicial foreclosure proceedings were initiated.

On August 4, 2009, Plaintiff, proceeding pro se, filed a complaint in Santa Cruz County Superior Court alleging numerous state and federal claims. The action was removed by Defendants on October 13, 2009.*fn1 On January 14, 2009, Plaintiff filed a FAC, which was dismissed with leave to amend by the March 30, 2010 Order of Judge Fogel. Plaintiff filed the operative SAC on April 30, 2010. Defendants moved to dismiss the SAC on May 17, 2010. That motion was re-noticed before this Court on August 5, 2010.

II. LEGAL STANDARDS

A motion to dismiss for failure to state a claim under Rule 12(b)(6) tests the legal sufficiency of a complaint. To withstand a motion to dismiss, a plaintiff must "plead enough facts to state a claim that is plausible on its face." Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007).

"[A] formulaic recitation of the elements of a cause of action will not do. Id. A court must determine whether the facts in a complaint "plausibly give rise to an entitlement of relief."

Aschcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009). A court need not accept as true conclusory allegations, unreasonable inferences, legal characterizations, or unwarranted deductions of fact in the complaint. Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994).

"Although a pro se litigant... may be entitled to great leeway when the court construes his [or her] pleadings, those pleadings nonetheless must meet some minimum threshold in providing a defendant with notice of what it is that it allegedly did wrong." Brazil v. United States Dep't of Navy, 66 F.3d 193, 199 (9th Cir. 1995) (emphasis added).

Leave to amend should be granted unless it is clear that the complaint's deficiencies cannot be cured by amendment. Lucas v. Dep't of Corrections, 66 F.3d 245, 248 (9th Cir. 1995). If amendment would be futile, a dismissal may be ordered ...


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