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Eci Financial Corp., A California Corporation v. American Home Mortgage Servicing

December 22, 2010

ECI FINANCIAL CORP., A CALIFORNIA CORPORATION, PLAINTIFF,
v.
AMERICAN HOME MORTGAGE SERVICING, INC., A DELAWARE CORPORATION, AND DOES 1-50, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER GRANTING MOTION TO DISMISS, DENYING MOTION TO STRIKE, AND DENYING MOTION FOR MORE DEFINITE STATEMENT

Defendant American Home Mortgage Servicing, Inc. ("Defendant") moves for dismissal of Plaintiff's Complaint under Federal Rule of Civil Procedure ("Rule") 12(b)(6), arguing Plaintiff fails to state a claim upon which relief can be granted. In the alternative, Defendant moves to strike Plaintiff's punitive damages allegations under Rule 12(f) and for a more definite statement under Rule 12(e).

Plaintiff did not file an opposition or statement of non-opposition in response to Defendant's motion as required by Local Rule 230(c). Nor did Plaintiff respond to an Order to Show Cause ("OSC") concerning this failure. A separate order imposed a monetary sanction against Plaintiff's counsel.

I. LEGAL STANDARD

A Rule 12(b)(6) dismissal motion tests the legal sufficiency of the claims alleged in the complaint. Novarro v. Black, 250 F.3d 729, 732 (9th Cir. 2001). A pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). The complaint must "give the defendant fair notice of what the [plaintiff's] claim is and the grounds upon which relief rests . . . ." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

Dismissal of a claim under Rule 12(b)(6) is appropriate only where the complaint either 1) lacks a cognizable legal theory, or 2) lacks factual allegations sufficient to support a cognizable legal theory. Balistreri v. Pacific Police Dept., 901 F.2d 696, 699 (9th Cir. 1988). To avoid dismissal, a plaintiff must allege "only enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 547.

In deciding a Rule 12(b)(6) motion, the material allegations of the complaint are accepted as true and all reasonable inferences are drawn in favor of the plaintiff. See al-Kidd v. Ashcroft, 580 F.3d 949, 956 (9th Cir. 2009). However, conclusory statements and legal conclusions are not entitled to a presumption of truth. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009); Twombly, 550 U.S. at 555. "In sum, for a complaint to survive a motion to dismiss, the nonconclusory 'factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. United States Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).

II. REQUEST FOR JUDICIAL NOTICE

Defendant's motion includes a request that the Court take judicial notice a Deed of Trust, which was recorded with the Kern County Recorder's Office on December 30, 2005. (Def.'s Req. for Judicial Notice ("RJN") Ex. 1.)

"As a general rule, a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion." Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (quotations and citation omitted). However, a court may consider matters properly subject to judicial notice. Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007).

Since the Deed of Trust is publically recorded, it is capable of accurate determination and may be judicially noticed. See W. Fed. Sav. & Loan Ass'n v. Heflin Corp., 797 F. Supp. 790, 792 (1992) (taking judicial notice of documents in a county's public record, including deeds of trust). Therefore, this judicial notice request is granted.*fn1

III. BACKGROUND

Vincent Billera obtained a loan for $220,500.00 around December of 2005, which was secured by a Deed of Trust on his property located in Bakersfield, California. (RJN, Ex. 1.) On January 1, 2009, Billera and Defendant entered into a Loan Modification Agreement. (Compl., Ex. 1.) This agreement "may be considered" in ruling on this Rule 12(b)(6) motion, since it is attached to Plaintiff's Complaint. Hal Roach Studios, Inc. v. Richard Feiner and Co., Inc., 896 F.2d 1542, 1555 n.19 (9th Cir. 1989).

Plaintiff alleges it "took over the subject property and assumed the [loan] modification agreement with Defendant." (Compl. ΒΆ7.) Plaintiff further alleges Defendant "agreed to have Plaintiff take over the property as well as the loan for the subject property[,]" and accepted "numerous payments . . . with no issue." Id. However, Plaintiff alleges, Defendant wrongfully ...


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