The opinion of the court was delivered by: Dean D. Pregerson United States District Judge
Order Granting in Part and Denying in Part Defendant's Motion to Dismiss [Motion filed on June 26, 2010]
This matter comes before the Court on defendant Saxon Mortgage Services, Inc.'s motion to dismiss for failure to state a claim, or in the alternative, motion for more definite statement, and motion to strike. After reviewing the papers submitted by the parties, the Court grants in part and denies in part the motion to dismiss, denies the motion to strike, and adopts the following order.
On or about August 2005, Plaintiff Marco Iezza ("Marco") purchased the subject property located at 1614 Country Club Drive, Glendale, California. (First Am. Compl. ("FAC") ¶¶ 1, 4.) Marco financed his purchase by obtaining a mortgage loan in the amount of $784,000 from Paul Financial, LLC, and the loan was secured by a deed of trust on the property. (FAC ¶ 4.)
On November 1, 2005, the servicing rights to the loan were transferred to General Motors Acceptance Corporation ("GMAC"). (FAC ¶ 19.) On May 1, 2006, GMAC transferred the servicing rights to Novastar Mortgage, Inc. ("Novastar"). (FAC ¶ 21.) Then on October 26, 2007, plaintiffs received notice from defendant Saxon Mortgage Services, Inc. ("Saxon") that the servicing rights to the loan would be transferred from Novastar to Saxon, effective November 1, 2007. (FAC ¶ 24.)
By 2008, plaintiffs were having problems making their monthly mortgage payments. (FAC ¶ 33.) On April 30, 2008, plaintiffs attempted to negotiate a loan modification, and were finally able to obtain one on August 4, 2008. (FAC ¶¶ 43,61.) Plaintiffs allege that Saxon failed to honor the Loan Modification Agreement by "demanding" monthly payments in excess of the terms of the agreements and miscalculating the interest rate as set forth in the agreement, the amount of the outstanding balance, and the amount of the fully amortized payments based on a 30-year amortization rather than a 40-year amortization. (FAC ¶ 108.)
Plaintiffs filed this action against Saxon alleging claims for: (1) breach of contract; (2) unjust enrichment; (3) conversion; (4) intentional infliction of emotional distress; (5) intentional misrepresentation; (6) negligent misrepresentation; (6) violation of the Real Estate Settlement Procedures Act, 12 U.S.C. § 2605(e); (7) negligence per se; and (9)violation of the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681s-2(a).
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint is subject to dismissal when the Plaintiff's allegations fail to state a claim upon which relief can be granted. When considering a 12(b)(6) motion to dismiss for failure to state a claim, "all allegations of material fact are accepted as true and should be construed in the light most favorable to [the] plaintiff." Resnick v. Hayes, 213 F.3d 433, 447 (9th Cir. 2000).
In Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009), the Supreme Court explained that a court considering a 12(b)(6) motion should first "identif[y] pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth."
Id. Next, the court should identify the complaint's "well-pleaded factual allegations, . . . assume their veracity and then determine whether they plausibly give rise to an entitlement to relief."
Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) ("In sum, for a complaint to survive a motion to dismiss, the non-conclusory factual content, and reasonable inferences from that content, must be plausibly suggestive of a claim ...