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Jose Luis Lopez v. Bank of America

December 15, 2010

JOSE LUIS LOPEZ,
PLAINTIFF,
v.
BANK OF AMERICA, N.A.,
DEFENDANT.



The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

[Doc. No. 7]

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

Plaintiff Jose Luis Lopez, proceeding pro se, has filed a Complaint against Defendant Bank of America, N.A., alleging breach of fiduciary duty, negligence, common law fraud, breach of the implied covenant of good faith and fair dealing, intentional infliction of emotional distress, and violation of the Truth in Lending Act ("TILA") and the Real Estate Settlement Procedures Act ("RESPA"). (Doc. No. 1.) Presently before the Court is a motion to dismiss brought by Defendant Bank of America, N.A. (Doc. No. 7.) For the reasons described herein, the Court GRANTS Defendant's motion to dismiss.

BACKGROUND

Plaintiff's Complaint is primarily a general attack upon the lending practices of Defendant and other lenders over the past ten years.Plaintiff refers specifically to Defendant, Bank of America, N.A., once, on the first page of his Complaint. See generally Compl. Plaintiff alleges he "entered into a consumer contract for the refinance of a primary residence located at 920 Caleb Court San Diego CA 92514." See Compl. at 1. Loan documents indicate that on November 8, 2006, Plaintiff executed two mortgage loans from lender MortgageIT in the amounts of $380,000 and $95,000. See Def.'s Request for Judicial Notice ("RJN") Exs. A-D.

Plaintiff filed his Complaint on September 7, 2010, along with a request for a temporary restraining order and a motion for a preliminary injunction. (Doc. Nos. 1, 3-4.) On September 13, 2010, the Court denied Plaintiff's request for a temporary restraining order. (Doc. No. 6.) Defendant filed a motion to dismiss on September 29, 2010. (Doc. No. 7.) When Plaintiff did not oppose the motion by October 25, 2010, Defendant filed a reply notifying the Court of Plaintiff's failure to oppose the motion to dismiss. (Doc. No. 8.) On November 2, 2010, the Court vacated the hearing scheduled for November 8, 2010 pursuant to Civil Local Rule 7.1(d)(1) and took the matter under submission. (Doc. No. 9.) The same day, Plaintiff filed a response in opposition to Defendant's motion. (Doc. No. 11.)

DISCUSSION

I. Legal Standard for a Rule 12(b)(6) Motion to Dismiss

A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a) (2009). A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the claims asserted in the complaint. Fed. R. Civ. P. 12(b)(6); Navarro v. Block, 250 F.3d 729, 731 (9th Cir. 2001). The court must accept all factual allegations pled in the complaint as true, and must construe them and draw all reasonable inferences from them in favor of the nonmoving party. Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). To avoid a Rule 12(b)(6) dismissal, a complaint need not contain detailed factual allegations, rather, it must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 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." Ashcroft v. Iqbal, --- U.S. ---, 129 S.Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 556).

However, "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (citation omitted). A court need not accept "legal conclusions" as true. Ashcroft v. Iqbal, --- U.S. ---, 129 S.Ct. 1937, 1949 (2009). In spite of the deference the court is bound to pay to the plaintiff's allegations, it is not proper for the court to assume that "the [plaintiff] can prove facts that [he or she] has not alleged or that defendants have violated the . . . laws in ways that have not been alleged." Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).

II. Analysis

A. Causes of Action that Derive from the Original Loan Transaction

Plaintiff has not alleged that Defendant Bank of America, N.A. was the originating lender (or participated in any way in the loan transaction) or that Bank of America, N.A. assumed liability for claims arising from the loan transaction. Defendant has submitted documents indicating it was not the originating lender. See Def.'s RJN, Exs. A-D. Because Defendant had no involvement in the origination of the loans, any claims by Plaintiff that arise from the originating loan transaction must fail. Accordingly, the Court DISMISSES WITHOUT PREJUDICE Plaintiff's first, second, fifth and seventh causes of action (breach of fiduciary duty, negligence,*fn1 violation of the Truth in Lending Act ("TILA"), and violation of the ...


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