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Irene Anokhin v. Bac Home Loans Servicing

December 21, 2010

IRENE ANOKHIN,
PLAINTIFF,
v.
BAC HOME LOANS SERVICING, LLP, ET AL., DEFENDANTS.



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

MEMORANDUM AND ORDER

Plaintiff Irene Anokhin ("Plaintiff") seeks redress from Defendants BAC Home Loans Servicing, LLP ("BAC") and Mortgage Electronic Registration Systems, Inc. ("MERS", and collectively, "Defendants") based on alleged violations of the Real Estate Settlement Procedures Act ("RESPA") and the Fair Debt Collection Practices Act (the "FDCPA"), among other state causes of action.

Presently before the Court is a Motion to Dismiss Plaintiff's Second Amended 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' Motion to Dismiss is granted.*fn2

BACKGROUND*fn3

This action stems from a residential mortgage loan on Plaintiff's real property located in Sacramento, California. In April 2006, Plaintiff entered into a mortgage loan for the home. Plaintiff alleges she was not provided a meaningful opportunity to read or review the documents she signed, and was discouraged from doing so by the lender. Beginning in October 2007, Plaintiff began to miss payments on her mortgage. Defendant BAC, then known as Countrywide Home Loans, subsequently asked that Plaintiff execute a Deed in Lieu, which transferred all of her rights and interests in the property. Plaintiff alleges and believes that she signed and properly executed that document.

Deed in Lieu notwithstanding, a Notice of Default was placed on the property in November 2007, Plaintiff learned that her name was still on the property, and she owed the arrears due on the home. A second Notice of Default was issued in May 2009, and MERS, as beneficiary, initiated foreclosure proceedings. Plaintiff sent BAC a Qualified Written Request Letter ("QWR") pursuant to RESPA, requesting information regarding her loan. To date, Plaintiff has not heard from BAC regarding the QWR.

STANDARD

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) unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.") (internal citations omitted).

ANALYSIS

Plaintiff alleges several violations of state and federal law and requests for relief. However, the issue before the Court is not the substance of these various claims, but whether Plaintiff has plead enough facts on her federal claims as a general matter, for any to stand. While the complaint does not need detailed factual allegations, it ...


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