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Raj Kumari Sharma and Kartari Lal v. Wachovia

January 6, 2011

RAJ KUMARI SHARMA AND KARTARI LAL SHARMA, PLAINTIFFS,
v.
WACHOVIA, AND DOES 1 THROUGH 10, INCLUSIVE, DEFENDANTS.



ORDER GRANTING DEFENDANT's MOTION TO DISMISS

This matter comes before the Court on Defendant Wachovia Mortgage's ("Defendant") Motion to Dismiss (Doc. 8). Defendant asks the Court to dismiss the Complaint (Doc. 1) filed by Plaintiffs Raj Kumari Sharma and Kartari Lal Sharma ("Plaintiffs"). Plaintiffs oppose the motion.*fn1

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs allege that in or about April 2004, Plaintiffs and World Savings Bank, FSB, whose successor in interest is Defendant, entered into a mortgage contract for the purchase of 2 property.

Plaintiffs allege that their primary language is Punjabi, 4 an Indian dialect, and that they do not speak, read, or 5 understand English. The loan documents were purportedly 6 negotiated in English and Plaintiffs believed they were getting 7 a fixed rate mortgage with monthly payments of $833.38.

Plaintiffs allege they did not realize that the mortgage loan 9 was actually an adjustable rate mortgage with negative amortization and monthly payments of $1,112.94. Plaintiffs claim that they were unable to make their monthly mortgage payments.

Plaintiffs allege that in February 2009, Defendant agreed to a two month Trial Plan Agreement with a promise that if Plaintiffs would comply with all the terms of the agreement, Defendant would modify the loan. Plaintiffs claim they made two consecutive payments of $2,108.00 according to the conditions of the Trial Plan Agreement. However, Plaintiffs allege that Defendant refused to modify the loan and in or about February 2010, Defendant sold Plaintiffs' property.

Plaintiffs filed a complaint in the Superior Court of California, Sacramento, alleging four state causes of action:

(1) violation of the duties of good faith and fair dealing;

(2) violation of Business & Professional Code §§ 17200, et seq.;

(3) violation of Business & Professional Code §§ 17500, et seq.; and (4) unjust enrichment. Defendant removed the case to federal court based on diversity jurisdiction and now moves to dismiss the Complaint.

II. OPINION

A. Legal Standard

1. Motion to Dismiss

A party may move to dismiss an action for failure to state 6 a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure section 12(b)(6). In considering a 8 motion to dismiss, the court must accept the allegations in the 9 complaint as true and draw all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1975), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322 (1972). Assertions that are mere "legal conclusions," however, are not entitled to the assumption of truth. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009), citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). To survive a motion to dismiss, a plaintiff needs to plead "enough facts to state a claim to relief that is plausible on its face." ...


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