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Shane Ingalsbe v. Bank of America

December 13, 2010

SHANE INGALSBE,
PLAINTIFF,
v.
BANK OF AMERICA, N.A., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

(Doc. 6)

MEMORANDUM DECISION REGARDING DEFENDANTS' MOTION TO DISMISS

I. INTRODUCTION.

Plaintiff Shane Ingalsbe ("Plaintiff") brings this action for damages and injunctive relief against Defendants Bank of America, N.A., BAC Home Loans Servicing, LLP, Recontrust Company, N.A., and Mortgage Electronic Registration Systems, Inc.("Defendants").

Plaintiff filed a complaint in the California Superior Court for the County of Merced on August 29, 2010. (Doc. 1). Defendants removed Plaintiff's action to federal court on September 13, 2010. (Doc. 1).

Defendants filed a motion to dismiss Plaintiff's complaint on October 18, 2010. (Doc. 6). Plaintiff filed opposition to the motion to dismiss on November 29, 2010. (Doc. 7). Defendants filed a reply on December 6, 2010. (Doc. 9).

II. FACTUAL BACKGROUND.

In or about 2007, Plaintiff purchased real estate located at 3340 Harness Drive in Atwater, California as his primary residence. (Comp. at 8). Plaintiff obtained a loan from Countrywide bank secured by a deed of trust. (Comp. at 8).

In or about August 2008, Plaintiff fell behind on his home loan payments. (Comp. at 8). Plaintiff contacted Countrywide to explore options to foreclosure. (Comp. at 9). Countrywide denied Plaintiff's attempt to modify his loan. (Comp at 9). Countrywide also deneid Plaintiff's attempt to sell the property in a "short sale." (Comp. at 9).

On March 22, 2009, Defendant BAC recorded a Notice of Default on Plaintiff's property. (Comp. at 9). In or about May 2009, Bank of America "became his trustee" after purchasing Countrywide Bank. (Comp. at 9). In June 2009, Plaintiff submitted a new short sale offer to BAC; the offer expired in 2009 without being accepted or declined by BAC. (Comp. at 9). In August 2009, Plaintiff received a Notice of Trustee's Sale. (Comp. at 9).

In or about October 2009, Plaintiff put together a new short sale offer, but Bank of America did not respond to it. (Comp. at 9). Plaintiff filed for bankruptcy in October, 2009. (Comp. at 9). Plaintiff continued to solicit loan modification from BAC many times, but the only response he received was request for payment. (Comp. at 10).

From January 19, 2010 to March 23, 2010, Plaintiff continued to inquire about the status of the sale of his property. (Comp. at 10). Sale of his home was postponed approximately six times. (Comp. at 10). The last date Plaintiff received for the sale of his home was March 26, 2010; a May 6, 2010 sale date was never provided to Plaintiff. (Doc. 10).

In April 2010, Plaintiff filled out a loan modification package and was given until the middle of May to return the package to BAC. (Comp. at 10). While in the process of loan modification, Plaintiff's home was sold to Fannie Mae on May 6, 2010. Prior to the sale, Plaintiff was told that BAC was going to extend the sale date until his loan modification application was either declined or approved. (Comp. at 10). Plaintiff was informed after his home was sold that he had been approved for loan modification. (Comp. at 10).

Plaintiff received an unlawful detainer eviction summons on June 20, 2010. (Comp. at 10).

III. LEGAL STANDARD.

Dismissal under Rule 12(b)(6) is appropriate where the complaint lacks sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.1990). To sufficiently state a claim to relief and survive a 12(b) (6) motion, the pleading "does not need detailed factual allegations" but the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Mere "labels and conclusions" or a "formulaic recitation of the elements of a cause of action will not do." Id. Rather, there must be "enough facts to state a claim to relief that is plausible on its face." Id. at 570. In other words, the "complaint must contain sufficient factual ...


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