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Virgilio Orcilla, et al v. Bank of America

December 16, 2010

VIRGILIO ORCILLA, ET AL.,
PLAINTIFFS,
v.
BANK OF AMERICA, N.A., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Howard R. Lloyd United States Magistrate Judge

** E-filed December 16, 2010 **

NOT FOR CITATION

United States District Court For the Northern District of California

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS PLAINTIFFS' COMPLAINT

[Re: Docket No. 23]

BACKGROUND

This case arises out of a 2006 home mortgage loan and subsequent foreclosure involving plaintiffs Virgilio and Teodora Orcilla ("Plaintiffs") and defendants Bank of America, N.A. ("Bank 19 of America"), BAC Home Loans Servicing, LP ("BAC"), ReconTrust Company N.A.

("ReconTrust"), Mortgage Electronic Registration Systems, Inc. ("MERS"), and Big Sur, Inc. ("Big Sur") (collectively, "Defendants"). The loan is secured by Plaintiffs' real property located at 2975 Winwood Way in San Jose, California.

Plaintiffs fell behind on their monthly mortgage payments and sought a loan modification pursuant to the Home Affordable Modification Program ("HAMP") agreement entered into between the United States federal government and Bank of America.*fn1 Under this program, individual loan servicers enter into contracts with Fannie Mae, in its capacity as a financial agent of the United States, to perform loan modification services in exchange for financial incentives. Plaintiffs allege that although they met the minimum eligibility requirements for a loan modification under HAMP, Bank of America nevertheless foreclosed upon their home and sold it before rendering a decision on their HAMP loan modification application.

Plaintiffs filed the instant action against Defendants, alleging numerous violations under 12(b)(6). The federal rules require that a complaint include a "short and plain statement" showing 15 the plaintiff is entitled to relief. FED. R. CIV. P. 8(a)(2). The statement must "raise a right to relief 16 above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 55 (2007). However, only plausible claims for relief with survive a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. ___, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009). A claim is plausible if its factual content "allows the 19 court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 1949. A plaintiff does not have to provide detailed facts, but the pleading must include "more than 21 an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. at 1950.

Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002). The factual 24 allegations pled in the complaint must be taken as true and reasonable inferences drawn from them 25 must be construed in favor of the nonmoving party. Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 26 Making Home Affordable Program, which consists of two components: (1) the Home Affordable Refinance Program, and (2) the Home Affordable Modification Program. See Williams v. Geithner, No. 09-1959 ADM/JJG, 2009 WL 3757380, at *1-2 (D.Minn. 2009).

LEGAL STANDARD

On motion, a court may dismiss a complaint for failure to state a claim. FED. R. CIV. P.

In deciding a motion to dismiss, the court is ordinarily limited to the face of the complaint. 337-38 (9th Cir. 1996); Mier v. Owens, 57 F.3d 747, 750 (9th Cir. 1995) (citing Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987)). However, the court cannot assume that "the [plaintiff] 2 can prove facts which [he or she] has not alleged." Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). "Nor is the court required 4 to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001) (citing Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994)),amended on other 7 grounds by 275 F.3d 1187 (9th Cir. 2001).

15(a)(2). "'Four factors are commonly used to determine the propriety of a motion for leave to 10 amend. These are: bad faith, undue delay, prejudice to the opposing party, and futility of amendment.'" Ditto v. McCurdy, 510 F.3d 1070, 1079 (9th Cir. 2007) (internal citations omitted).

"Futility of amendment can, by itself, justify the denial of a motion for leave to amend." Bonin v. "A court should freely give leave [to amend] when justice so requires." FED. R. CIV. P.

Calderon, 59 F.3d 815, 845 (9th Cir. 1995). An amendment would be "futile" if there is no set of facts can be proved which would constitute a valid claim or defense. See Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988).

A. Defendants' Request for Judicial Notice

Note dated and signed by plaintiff Teodora Orcilla on May 9, 2006; (2) a Deed of Trust dated and signed by Plaintiffs on May 9, 2006; (3) a Notice of Default and Election to Sell under Deed of Default"); (4) a Notice of Default and Election to Sell under Deed of Trust recorded with the County of Santa Clara on April 18, 2008 (the "04/18/2008 Notice of Default"); (5) a Notice of Trustee's Sale recorded with the County of Santa Clara on May 3, 2010; and (6) a Substitution of Trustee 25 recorded with the County of Santa Clara on May 8, 2007. Docket No. 23-1.

in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice."

Swartz v. KPMG, LLP, 476 F.3d 756, 763 (9th Cir. 2007). A court may take judicial notice of facts

DISCUSSION

Defendants ask this Court to take judicial notice of six documents: (1) an Adjustable Rate Trust recorded with the County of Santa Clara on ...


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