Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Abu-Art Robinson and Nadine E. No. Civ. 2:10-3014 Wbs Ggh v. Wachovia Mortgage; the Successors and Assigns of World Savings Bank

January 28, 2011

ABU-ART ROBINSON AND NADINE E. NO. CIV. 2:10-3014 WBS GGH ROBINSON, PLAINTIFFS,
v.
WACHOVIA MORTGAGE; THE SUCCESSORS AND ASSIGNS OF WORLD SAVINGS BANK; AND DOES 1 THROUGH 20, INCLUSIVE, DEFENDANTS.



MEMORANDUM AND ORDER RE:

MOTION TO DISMISS

Plaintiffs Abu-Art Robinson and Nadine E. Robinson filed this action against defendants Wachovia Mortgage and the successors and assigns of World Savings Bank arising from their residential mortgage. Wachovia Mortgage now moves to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. Plaintiffs did not file an opposition or statement of non-opposition to the motion.

I. Factual and Procedural Background Plaintiffs entered into a loan agreement with World Savings Bank in August of 2005 to purchase property at 1124 Martinson Court in Sacramento, California. (Compl. ¶ 2, Ex. A (Docket No. 1).) The note was secured by a Deed of Trust. (Id. Ex. A.) While the Complaint lacks specifics, it appears that plaintiffs have defaulted on their loan agreement "by virtue of their inability to make all payments as they came due" and the foreclosure process has been initiated, but a foreclosure sale has not taken place. (Id. ¶¶ 5-6, 10-11, 14, 20.)

Plaintiffs' claims are based on the loan origination and the initiation of the foreclosure process. Plaintiffs allege that defendants "fail[ed] to provide the Plaintiff(s) with a copy of the loan application (form 1003), the actual fully filled-out and executed promissory note, [and] the 3-day Right of Rescission" and that "the Truth In Lending Disclosure statement is very inaccurate and deceptive and fails to give notice to Plaintiff(s) [regarding] the extent of the obligations." (Id. ¶

7.) Defendants allegedly gave plaintiffs "incomplete documents that plaintiffs were told they must sign[] [and] insufficient time to review the more than 50 pages the plaintiffs were expected to read and sign in less than an hour." (Id. ¶ 8.) While the Complaint does not allege what was misrepresented, the Complaint alleges that misrepresentations induced plaintiffs "to accept loan terms that they did not understand." (Id. ¶ 18.)

The Complaint alleges that the "plaintiffs were placed in an inappropriate loan that they could barely afford before any re-set of interest rate or payment." (Id. ¶ 8.) Plaintiffs allege that the defendants had the "knowledge and experience to evaluate the appropriateness of the loans and the standards of the lending industry sufficient to determine if plaintiffs had been dealt with fairly and if the selected loan product was applicable for the plaintiffs." (Id. ¶ 12.)

Plaintiffs allegedly "have been threatened with wrongfully [sic] and unlawfully [sic] dispossession of their real property." (Id. ¶ 10.) The Complaint alleges that defendants have "perpetrated fraud on the plaintiff(s), if the allegations are true that defendants do not hold the original promissory note secured by the deed of trust." (Id. ¶ 17.)

On September 28, 2010, plaintiffs filed this action in state court, and defendants removed it on November 9, 2010. The Complaint asserts nine claims: (1) breach of contract, (2) declaratory relief, (3) fraud, (4) intentional misrepresentation,

(5) negligent misrepresentation, (6) rescission and restitution,

(7) declaration of resulting or constructive trust, (8) quiet title, and (9) accounting. Wachovia Mortgage*fn1 now moves to dismiss the Complaint pursuant to Rule 12(b)(6).

II. Discussion

To survive a motion to dismiss, a plaintiff must plead

"only enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This "plausibility standard," however, "asks for more than a sheer possibility that a defendant has acted unlawfully," Ashcroft v. Iqbal, --- U.S. ----, ----, 129 S. Ct. 1937, 1949 (2009), and where a complaint pleads facts that are "'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557). In deciding whether a plaintiff has stated a claim, the court must assume that the plaintiff's allegations are true and draw all reasonable inferences in the plaintiff's favor. Usher v. City of L.A., 828 F.2d 556, 561 (9th Cir. 1987). However, the court is not required to accept as ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.