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Julie and Daniel Burtovoy v. Jp Morgan Chase N.A.

December 2, 2010


The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge


Plaintiffs Julie and Daniel Burtovoy ("Plaintiffs") seek redress from Defendants JP Morgan Chase N.A., American Mortgage Network Inc., Wachovia Mortgage Corporation, Ndex West LLC, and Stewart Title Company ("Defendants") based on alleged violations of the Truth in Lending Act ("TILA") and other various state law claims.

Presently before the Court are Defendants JP Morgan Chase N.A. ("Chase") and Wachovia Mortgage Corporation's ("Wachovia") Motions to Dismiss Plaintiffs' Complaint for failure to state a claim upon which relief may be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6).*fn1 For the reasons set forth below, Defendants' Motions to Dismiss are both granted.*fn2


This action stems from a set of two residential mortgage loans on a single residential property. Plaintiffs had two loans on their property, at least one of which was issued through Chase. On October 1, 2007, a deed of trust was recorded against the property through Defendant Ndex West LLC ("Ndex"). Plaintiff contends that Ndex refused any tender of arrearage on at least one of their mortgages. Plaintiffs' home was foreclosed upon.

Plaintiffs allege the foreclosure was invalid because they had notified the lender of their right to rescind the mortgage, pursuant to TILA, prior to the foreclosure sale, however do not specify which lender they contacted, or which mortgage is even at issue.

It is also unclear which mortgage and lender Plaintiffs claim is in violation of TILA.*fn4 Because the property has been sold, leaving Wachovia with no interest, Plaintiffs request that Defendant Wachovia be dismissed without prejudice. However, Plaintiffs re-assert that Chase indicated its interest and intent to foreclose on the property in a notice mailed to Plaintiffs in December 2009.

Wachovia and Chase have each filed a timely Motion to Dismiss. Chase contends it has no involvement in either loan, never had a recorded interest in the property. (Mot. To Dismiss 1.) Both Motions to Dismiss contend that Plaintiffs' claims against each fail to state facts sufficient to show any alleged misconduct.


On a motion to dismiss for failure to state a claim under Rule 12(b)(6), all allegations of material fact must be accepted as true and construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Rule 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," to "give the defendant fair notice of what the...claim is and the grounds upon which it rests."

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations and quotations omitted). Though "a complaint attacked by a Rule 12(b)(6) motion" need not contain "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." Id. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 2869 (1986)). A plaintiff's "factual allegations must be enough to raise a right to relief above the speculative level." Id. (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004) ("[T]he pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action.")).

Further, "Rule 8(a)(2)...requires a 'showing,' rather than a blanket assertion, of entitlement to relief. Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirements of providing...grounds on which the claim rests." Twombly, 550 U.S. at 555 n.3 (internal citations omitted). A pleading must then contain "only enough facts to state a claim to relief that is plausible on its face." Id. at 570. If the "plaintiffs...have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed." Id.

Once the court grants a motion to dismiss, they must then decide whether to grant a plaintiff leave to amend. Rule 15(a) authorizes the court to freely grant leave to amend when there is no "undue delay, bad faith, or dilatory motive on the part of the movant." Foman v. Davis, 371 U.S. 178, 182 (1962). In fact, leave to amend is generally only denied when it is clear that the deficiencies of the complaint cannot possibly be cured by an amended version. See DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992); Balistieri v. Pacifica Police Dept., 901 F. 2d 696, 699 (9th Cir. 1990) ("A complaint should not be dismissed under Rule 12(b)(6) ...

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