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Pimentel v. Deutsche Bank National Trust Co.

September 20, 2010

DAVID PIMENTEL AND ALDO PIMENTEL, PLAINTIFFS,
v.
DEUTSCHE BANK NATIONAL TRUST COMPANY; ET AL., DEFENDANTS.



The opinion of the court was delivered by: John A. Houston United States District Judge

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS [DOC. # 3]

INTRODUCTION

Pending before the Court is the motion to dismiss the instant complaint filed by defendants Deutsche Bank National Trust Company as Trustee for the Registered Holders of ResMAE Asset-Backed Certificates, Series 2006-1 ("Deutsche Bank") and Ocwen Loan Servicing, LLC ("Ocwen") (collectively "defendants"). The motion has been fully briefed by the parties. After a thorough review of the parties' submissions, and for the reasons set forth below, this Court grants in part and denies in part defendants' motion to dismiss.

BACKGROUND

Plaintiffs David Pimentel and Aldo Pimental (collectively "plaintiffs") obtained a loan through defendant ResMAE Mortgage Company ("ResMAE") on their home on September 1, 2005, in the amount of $409,500.00, secured by a deed of trust to the property located at 9089 Avocado Street, Spring Valley, California ("the property"). Compl. ¶ 4. The beneficial interest in the deed of trust was assigned to Deutsche Bank on November 7, 2008. Doc. # 3-2, Exh. 2.*fn1 A substitution of trustee, substituting New Century Title Company with defendant Cal-Western Reconveyance Corporation, was executed on November 6, 2008 and recorded in the San Diego County Recorder's Office on February 13, 2009. Id., Exh. 4. Plaintiffs subsequently defaulted on the loan and a notice of default was recorded on January 7, 2009. Id., Exh. 3. A notice of trustee's sale was recorded on April 10, 2009, setting a sale date for April 29, 2009. Id., Exh. 5.

Plaintiff David Pimentel filed for bankruptcy protection on April 27, 2009, thus halting the sale set for April 29, 2009. See id., Exh. 6. Deutsche Bank subsequently moved for relief from the bankruptcy automatic stay, which was granted on June 24, 2009. Id., Exh. 7. The foreclosure sale was completed on July 6, 2009 and the Trustee's Deed Upon Sale was recorded on July 22, 2009. Id., Exh. 8.

Deutsche Bank filed an unlawful detainer action against plaintiffs on August 18, 2009 in the San Diego County Superior Court.*fn2 Id., Exh. 9. On October 13, 2009, plaintiffs filed a complaint in this Court alleging claims concerning the same issues and defendants involved in the present case. See Case No. 09cv2264 JLS(NLS). After defendants filed a motion to dismiss, plaintiffs filed a new complaint in the state court on November 10, 2009 and voluntarily dismissed the federal complaint on November 17, 2009. Defendants removed the new action to this Court on November 24, 2009.

Defendants filed the instant motion to dismiss on December 3, 2009. Plaintiffs' opposition to the motion was filed on February 1, 2010. Defendants reply brief was filed on February 9, 2010. This Court subsequently took the motion under submission without oral argument. See CivLR 7.1(d.1).

DISCUSSION

I. Legal Standard

A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal is warranted under Rule 12(b)(6) where the complaint lacks a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984); see Neitzke v. Williams, 490 U.S. 319, 326 (1989) ("Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law."). Alternatively, a complaint may be dismissed where it presents a cognizable legal theory yet fails to plead essential facts under that theory. Robertson, 749 F.2d at 534. While a plaintiff need not give "detailed factual allegations," he must plead sufficient facts that, if true, "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007).

"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.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 547). A claim is facially plausible when the factual allegations permit "the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. In other words, "the nonconclusory 'factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief. Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). "Determining whether a complaint states a plausible claim for relief will... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 129 S.Ct. at 1950.

In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume the truth of all factual allegations and must construe all inferences from them in the light most favorable to the nonmoving party. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002); Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). However, legal conclusions need not be taken as true merely because they are cast in the form of factual allegations. Ileto v. Glock, Inc., 349 F.3d 1191, 1200 (9th Cir. 2003); Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). When ruling on a motion to dismiss, the Court may consider the facts alleged in the complaint, documents attached to the complaint, documents relied upon but not attached to the complaint when authenticity is not contested, and matters of which the Court takes judicial notice. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001). If a court determines ...


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