The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION REGARDING DEFENDANTS MOTION TO DISMISS
Plaintiff Jorge Torres ("Plaintiff") brings this action for damages against Litton Loan Servicing LP. Plaintiff filed a complaint in California Superior Court for the County of Kern on July 23, 2010. (Doc. 1). Defendant removed Plaintiff's action to federal court on September 17, 2010. (Id.).
Defendant filed a motion to dismiss Plaintiff's complaint on October 12, 2010. (Doc. 7).
Plaintiff did not file timely opposition to Defendant's motion. Local Rule 230(c) requires opposition to be filed no less than fourteen days preceding the noticed hearing date. E.D. Cal.
R. 230(b). Defendant's motion to dismiss was initially set for December 13, 2010. As of December 13, Plaintiff's counsel had not requested a continuance and had not filed opposition. Nor did Plaintiff's counsel appear at the December 13 hearing.
At the hearing on December 13, Defendant's counsel represented that a potential settlement was underway, and the court continued the hearing to January 10, 2011. The court ordered Plaintiff to file opposition by December 23, 2010. (Doc. 10). Plaintiff filed opposition on December 24, 2010. (Doc. 11).
Defendant filed a reply on January 3, 2011.
Defendant is engaged in "mortgage activities." (Comp. at 3). On June 10, 2009, Plaintiff entered into a "Trial Loan Modification Plan" with Defendant ("the Plan"). (Id.). Pursuant to the Plan, Plaintiff was required to make three trial payments; Plaintiff made nine payments. (Id. at 4).
On June 16, 2010, Plaintiff received another solicitation from Defendant for a loan modification plan. (Id.) On June 22, 2010, Plaintiff spoke with Defendant and was assured that his loan modification would be processed and reviewed. (Id.). On June 26, 2010, Plaintiff re-sent the paperwork to Defendant for the loan modification.*fn1 (Id.). On or about June 29, 2010, Defendant conducted a trustee sale on Plaintiff's property. (Id.).
Dismissal under Rule 12(b)(6) is appropriate where the complaint lacks sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.1990). To sufficiently state a claim to relief and survive a 12(b) (6) motion, the pleading "does not need detailed factual allegations" but the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Mere "labels and conclusions" or a "formulaic recitation of the elements of a cause of action will not do." Id. Rather, there must be "enough facts to state a claim to relief that is plausible on its face." Id. at 570. In other words, the "complaint must contain sufficient factual ...