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Title: Charles Edward Lincoln, Iii, Chirstyna Lynn Gray, Renada N. v. Steven D. Silverstein

January 27, 2011

TITLE: CHARLES EDWARD LINCOLN, III, CHIRSTYNA LYNN GRAY, RENADA N. MARCH
v.
STEVEN D. SILVERSTEIN, RON ELTER, GRE DEVELOPMENT, ET AL.



The opinion of the court was delivered by: The Honorable David O. Carter, Judge

CIVIL MINUTES - GENERAL

Kathy Peterson Not Present

Courtroom Clerk Court Reporter

ATTORNEYS PRESENT FOR PLAINTIFFS: ATTORNEYS PRESENT FOR DEFENDANTS: NONE PRESENT NONE PRESENT

PROCEEDING (IN CHAMBERS): ORDER GRANTING DEFENDANTS' MOTION TO DISMISS[49]

Before this Court is Defendants' Mortgage Electronic Registration Systems, Inc.'s ("MERS") and OneWest Bank, FSB's ("OneWest")(collectively, "Moving Defendants") Motion to Dismiss based on Federal Rules of Civil Procedure 12(b)(6) ("Motion to Dismiss"). The Court finds this matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; Local R. 7-15. After considering the moving, opposing, and replying papers thereon, and for the reasons discussed below, the Court hereby GRANTS the Motion to Dismiss.

I. BACKGROUND

On or about December 28, 2006, Plaintiff Renada Nadine March ("Plaintiff") obtained a mortgage loan (the "Loan")from IndyMac Bank, F.S.B. ("IndyMac") secured by a Deed of Trust ("Deed of Trust") on real property located at 7 Bluebird Lane, Aliso Viejo, California 92656 (the "Property"). Request for Judicial Notice, October 13, 2010, Ex. 1.*fn1 On July 14, 2009, Plaintiff petitioned for chapter 7 bankruptcy, commencing the bankruptcy case styled In re Renada Nadine , USBC, Central District of California Case No. 8:09:bk-17057-TA (the "Bankruptcy Case"). Third Amended Complaint, September 22, 2010 (Docket 48) ("TAC") ¶¶ 244-45. At the time the Property was at risk of foreclosure, Plaintiff was engaged in negotiations with OneWest to modify the terms of the Loan. Id. at ¶¶ 244-45, 402. On or about October 9, 2009, OneWest, via its foreclosure trustee, completed foreclosure on the Property. Id. at ¶¶ 244-45, 247. At foreclosure, the Property was sold to Defendant Megloden Financial, LLC, which thereafter commenced an unlawful detainer action to evict Plaintiff from the Property. Id. at ¶ 100.

II. LEGAL STANDARD

A. Motion to Dismiss Pursuant to Rule 12(b)(6)

Under Federal Rule of Civil Procedure 12(b)(6), a complaint must be dismissed when a plaintiff's allegations fail to state a claim upon which relief can be granted. Dismissal for failure to state a claim does not require the appearance, beyond a doubt, that the plaintiff can prove "no set of facts" in support of its claim that would entitle it to relief. Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1968 (2007) (abrogating Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99 (1957)). In order for a complaint to survive a 12(b)(6) motion, it must state a claim for relief that is plausible on its face. Ashcroft v. , 129 S.Ct. 1937, 1950 (2009). A claim for relief is facially plausible when the plaintiff pleads enough facts, taken as true, to allow a court to draw a reasonable inference that the defendant is liable for the alleged conduct. Id. at 1949. If the facts only allow a court to draw a reasonable inference that the defendant is possible liable, then the complaint must be dismissed. Id. Mere legal conclusions are not to be accepted as true and do not establish a plausible claim for relief. Id. at 1950.Determining whether a complaint states a plausible claim for relief will be a context-specific task requiring the court to draw on its judicial experience and common sense. Id.

In evaluating a 12(b)(6) motion, review is "limited to the contents of the complaint." Clegg v. Cult Awareness Network, 18 F.3d 752, 754 (9th Cir. 1994). However, exhibits attached to the complaint, as well as matters of public record, may be considered in determining whether dismissal was proper without converting the motion to one for summary judgment. See Parks School of Business, Inc. , 51 F.3d 1480, 1484 (9th Cir. 1995); Mack v. South Bay Beer Distributors, Inc., 798 F.2d 1279, 1282 (9th Cir. 1986). Further, a court may consider documents "on which the complaint 'necessarily relies' if: (1) the complaint refers to the document; (2) the document is central to the plaintiff's claim; and (3) no party questions the authenticity of the copy attached to the 12(b)(6) Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006). "The Court may treat such a document as 'part of the complaint, and thus may assume that its contents are true for purposes of a motion to dismiss under Rule 12(b)(6)." Id.

Dismissal without leave to amend is appropriate only when the Court is satisfied that the deficiencies in the complaint could not possibly be cured by amendment. Jackson v. Carey, 353 F.3d 750, 758 (9th Cir. 2003) (citing Chang v. Chen, 80 F.3d 1293, 1296 ...


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