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Levy v. JP Morgan Chase

November 5, 2010

JACOBO LEVY, PLAINTIFF,
v.
JP MORGAN CHASE, DEFENDANT.



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

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS FIRST AMENDED COMPLAINT [Doc. 12]

Pending before this Court is Defendant JPMorgan Chase Bank, N.A.'s motion to dismiss Plaintiff's First Amended Complaint. For the reasons stated below, Defendant's motion is granted.

I. BACKGROUND

Plaintiff entered into a loan for the refinance of a residence located at 2740-2748 Massachusetts, Lemon Grove, CA 91945. (First Amended Complaint ("FAC") at 1.) The loan was secured by a Deed of Trust. (RJN Ex. 1.)*fn1 Plaintiff subsequently failed to make the necessary loan payments and a Notice of Default was recorded on February 11, 2010. (RNJ Ex. 4.) A Notice of Trustee's Sale was recorded on May 19, 2010. (RJN Ex. 5.) Plaintiff filed a Complaint in this action on July 19, 2010 and filed a First Amended Complaint (erroneously labeled "Amended Original Petition") on August 9, 2010. (Docs. 1, 7.) In the FAC, Plaintiff states claims for unjust enrichment, quiet title, breach of fiduciary duty, negligence, fraud, breach of implied covenant of good faith and fair dealing, violation of the Truth in Lending Act ("TILA"), intentional infliction of emotional distress, conspiracy, violation of the Real Estate Settlement Procedures Act ("RESPA"), and unfair business practices - 15 U.S.C. § 45. On August 30, 2010, Defendant filed the instant motion to dismiss Plaintiff's FAC. (Doc. 12.) Plaintiff failed to file an opposition to the motion to dismiss and Defendant filed a reply. (Doc. 14.)

II. LEGAL STANDARD

A party may move to dismiss a claim under Rule 12(b)(6) if the claimant fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). The Federal Rules require a pleading to include a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The Supreme Court, however, recently established a more stringent standard of review for pleadings in the context of 12(b)(6) motions to dismiss. See Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). To survive a motion to dismiss under this new standard, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). "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." Id. at 1950 (citing Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007)).

III. DISCUSSION

Plaintiff failed to oppose Defendant's motion to dismiss the FAC. Under United States District Court, Southern District of California Local Rule 7.1.f.3.c, "[i]f an opposing party fails to file the papers in the manner required by Civil Local Rule 7.1.e.2., that failure may constitute a consent to the granting of a motion or other request for ruling by the court." Accordingly, the Court finds Plaintiff's failure to file an opposition to Defendant's motion to dismiss constitutes his consent to the granting of the motion. Nonetheless, the Court briefly addresses the merits of Defendant's motion to dismiss and the adequacy of Plaintiff's FAC.

As an initial matter, Plaintiff does not sufficiently identify the loan at issue. He states he "entered into a consumer contract for the refinance of a primary residence located at 2740-2748 Massachusetts[,] Lemon Grove[,] Ca 91945" and references "a 565,000.00 note," but does not provide any further information as to the parties involved or the date the loan closed. (FAC at 1, 4.) Plaintiff further fails to allege the role Defendant played or the interest Defendant has in the subject loan.

A. Unjust Enrichment

Unjust enrichment is not itself an independent claim for relief. McKell v. Washington Mut., Inc., 142 Cal. App. 4th 1457, 1490 (2006).The Court therefore construes Plaintiff's purported claim for unjust enrichment as an attempt to plead a claim for relief giving rise to a right of restitution. A party is required to make restitution "if he or she is unjustly enriched at the expense of another. A person is enriched if the person receives a benefit at another's expense." McBride v. Boughton, 123 Cal. App. 4th 379, 389 (2004) (citations and quotations omitted). Plaintiff fails, however, to adequately plead facts showing that any enrichment of Defendant was unjust as to him.

B. Quiet Title

To state a claim to quiet title, the complaint must be verified and a plaintiff must include a description of the subject property, the title of the plaintiff as to which determination is sought and the basis of the title, the claims adverse to the title, the date as of which the determination is sought, and a prayer for determination of the title against the adverse claims. Cal. Code Civ. Proc. ยง 761.020. Aside ...


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