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Lemperle v. Washington Mutual Bank

October 7, 2010


The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge


This matter is before the Court on Defendants JPMorgan Chase Bank, N.A. and California Reconveyance Company's motion to dismiss Plaintiff Stefan M. Lemperle's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) [Doc. No. 4]. Plaintiff filed an opposition to the motion, to which Defendants replied [Doc. Nos. 6 & 7]. The Court took the matter under submission on the papers and without oral argument pursuant to Civil Local Rule 7.1.d.1 [Doc. No. 8]. For the following reasons, the Court GRANTS Defendants' motion.


On December 3, 2007, Defendant Washington Mutual Bank, NA ("WAMU") and Plaintiff entered into a loan transaction concerning real property, whereby WAMU loaned Plaintiff the sum of $4,968,400 pursuant to a promissory note secured by a deed of trust against the subject property commonly known as 5672 Dolphin Place, La Jolla, California, 92037.

WAMU was closed by the Office of Thrift Supervision and the FDIC was appointed as the receiver on September 25, 2008. Defendant JPMorgan Chase Bank, N.A. ("Chase") and the Federal Deposit Insurance Corporation ("FDIC") entered into a purchase and assumption agreement whereby Chase acquired certain WAMU assets.

On March 11, 2010, a Notice of Default and Election to Sell Under Deed of Trust was issued because Plaintiff was in arrears in the amount of $434,478.41 as of March 9, 2010 on the loan. A Notice of Trustee's Sale was recorded on June 15, 2010, estimating the amount of unpaid balance and other charges on the loan to be $5,596,189.94. A non-judicial foreclosure sale of the property was set for July 8, 2010. On June 30, 2010, Plaintiff filed suit against the above-referenced defendants in the Superior Court of the State of California, County of San Diego, Case No. 37-2010-00095321-CU-OR-CTL, and applied ex parte for a temporary restraining order to prevent Defendants from foreclosing on the subject property. On July 6, 2010, the state court entered an order to show cause as to why a preliminary injunction should not issue, and restraining Defendants in the interim from foreclosing upon the property. The Show Cause Hearing was set for August 6, 2010.

On July 26, 2010, Defendants Chase and California Reconveyance Company ("CRC") removed the action to federal court pursuant to 28 U.S.C. § 1441, et seq., properly alleging federal question jurisdiction pursuant to 28 U.S.C. § 1331 based on Plaintiff's claims brought under the Truth In Lending Act ("TILA"), 15 U.S.C. § 1601, et seq., and the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 1601, et seq.*fn1 On August 2, 2010, Defendants filed the instant motion to dismiss Plaintiff's complaint as to all causes of action without leave to amend.


1. Legal Standard

A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks, brackets and citations omitted).

In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume the truth of all factual allegations and must construe them in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Legal conclusions need not be taken as true merely because they are cast in the form of factual allegations. Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987); W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). Similarly, "conclusory allegations of law and unwarranted inferences are not sufficient to defeat a motion to dismiss." Pareto v. Fed. Deposit Ins. Corp., 139 F.3d 696, 699 (9th Cir. 1998).

In determining the propriety of a Rule 12(b)(6) dismissal, a court may not look beyond the complaint for additional facts, e.g., facts presented in plaintiff's memorandum in opposition to a defendant's motion to dismiss or other submissions. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003); Parrino v. FHP, Inc., 146 F.3d 699, 705-06 (9th Cir. 1998); see also 2 Moore's Federal Practice, § 12.34[2] (Matthew Bender 3d ed.) ("The court may not... take into account additional facts asserted in a memorandum opposing the motion to dismiss, because such memoranda do not constitute pleadings under Rule 7(a)."). A court may, however, consider items of which it can take judicial notice without converting the motion to dismiss into one for summary judgment. Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994). Judicial notice may be taken of facts "not subject to reasonable dispute" because they are either "(1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201. Additionally, a court may take judicial notice of "'matters of public record' without converting a motion to dismiss into a motion for summary judgment.'" Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (quoting MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986)). Under the incorporation by reference doctrine, courts may also 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." In re Silicon Graphics Inc. Sec. Litig., 183 F.3d 970, 986 (9th Cir.1999) (quoting Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994) (alteration in original)).

2. Analysis

a) Request for ...

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