The opinion of the court was delivered by: Lucy H. Koh United States District Judge
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS; DENYING PLAINTIFF'S REQUEST FOR PRELIMINARY INJUNCTION
United States District Court For the Northern District of California
§§ 1601 et seq. and various state law claims in connection with the non-judicial foreclosure of 19 property located at 700 Tea Tree Court, San Jose, California (the "Property"). The Court has 20 previously denied Plaintiff's request for a temporary restraining order for failure to comply with 21 the notice requirements of the Federal Rules of Civil Procedure, and failure to establish a 22 likelihood of success on the merits or irreparable injury. See Dkt. #8. Presently before the Court is
Defendant's Motion to Dismiss. Plaintiff did not file an Opposition. The Court finds this matter 24 appropriate for resolution without oral argument. See Civ. L.R. 7-1(b). For the reasons described 25 below, Defendant's Motion to Dismiss is GRANTED in part with leave to amend and GRANTED 26 in part with prejudice. The February 10, 2011 motion hearing and Case Management Conference 27 are both vacated. 28
Plaintiff Jennifer Wootten ("Plaintiff") brings suit against Defendant BAC Home Loans Servicing, LP ("Defendant") alleging violation of the Truth in Lending Act ("TILA"), 15 U.S.C.
Plaintiff filed an "Original Petition" on November 1, 2010. The Court will refer to this "Original Petition" as Plaintiff's Complaint. The thirty-page Complaint consists mostly of 5 generalized allegations against "unscrupulous lenders" and the entire "mortgage system itself." 6
See, e.g.,Compl. at 2-5 (discussing the general state of the real estate industry and the "best of 7 intentions"). The Complaint also refers to "Defendants," although Plaintiff has only named a 8 single Defendant (BAC Home Loan Servicing, LP) -- an entity about which Plaintiff fails to make 9 any specific allegations. The Complaint is short on specific factual information, but apparently 10 relates to the origination of a loan on the Property for $323,344.00 at 5.986% interest over 30 years. See Compl. at 3. Plaintiff does not identify the lender, the type of loan, any other loan terms, or the date of the loan transaction. Beginning on page 25 of the Complaint, Plaintiffs allege 13 six causes of action: (1) breach of fiduciary duty; (2) negligence and negligence per se; (3) fraud; 14 (4) breach of implied covenant of good faith and fair dealing; (5) violation of TILA; and (6) 15 intentional infliction of emotional distress. Plaintiff's Complaint concludes with a prayer of relief 16 for, inter alia, rescission, compensatory damages in the amount of $479,172.03, punitive damages 17 in the amount of $1,437,516.09, and pain and suffering in an unspecified amount. Id. at 30-31.
judicially noticeable facts. See Def.'s Mot. to Dismiss at 1-2.*fn1 On June 27, 2007, Plaintiff 21 obtained a residential mortgage loan for $323,344.00 in connection with the Property. The loan 22 was secured by a Deed of Trust recorded on or about July 5, 2007 with the Santa Clara County 23
Deed of Trust identifies "Bank of America, N.A." as the lender, "PRLAP, Inc." as the trustee, and 25
B.Defendant's Motion to Dismiss and Request for Judicial Notice
Defendant submits that the following are the relevant allegations in the Complaint and Recorder's Office. See Def.'s Request for Judicial Notice ("RJN"), Exh. A. The July 5, 2007 24
Plaintiff as the borrower. Plaintiff filed for Chapter 7 bankruptcy on February 25, 2010. See RJN, 26 Exh. B. On June 2, 2010, the Bankruptcy Court issued an "Order Discharging Debtor and Final 2 Decree." See RJN, Exh. C. That Order discharged certain of Plaintiff's debts, but excluded secure 3 debts such as the lien on Plaintiff's Property. On September 7, 2010, Defendant sent Plaintiff a 4 Notice of Intent to Accelerate regarding her loan default, but as of February 2, 2011, Defendant has 5 not initiated foreclosure proceedings on the Property. See Def.'s Opp'n to Pl.'s Request for 6 Preliminary Injunction, Decl. of Barbara Travis ("Travis Decl."). The September 7, 2010 Notice 7 informed Plaintiff that her amount due was approximately $23,238.57. Id. 8
Dismissal under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim is "proper only where there is no cognizable legal theory or an absence of sufficient facts alleged to support a cognizable legal theory." Shroyer v. New Cingular Wireless Services, Inc., 606 F.3d 658, 664 (9th Cir. 2010) (quoting Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001)). In considering 13 whether the complaint is sufficient to state a claim, the court must accept as true all of the factual 14 allegations contained in the complaint. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). However, 15 the court need not accept as true "allegations that contradict matters properly subject to judicial 16 notice or by exhibit" or "allegations that are merely conclusory, unwarranted deductions of fact, or 17 unreasonable inferences." St. Clare v. Gilead Scis., Inc. (In re Gilead Scis. Sec. Litig.), 536 F.3d 1049, 1055 (9th Cir. 2008). While a complaint need not allege detailed factual allegations, it "must 19 contain sufficient factual matter, accepted as true, to "'state a claim to relief that is plausible on its 20 face.'" Iqbal, 129 S.Ct. at 1949 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 21 (2007)). A claim is facially plausible when it "allows the court to draw the reasonable inference 22 that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949.
was made, unless it determines that the pleading could not possibly be cured by the allegation of 25 other facts." Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (quoting Doe v. United States, 58 26 F.3d 494, 497 (9th Cir. 1995)). 27 28
"[A] district court should grant leave to amend even if no request to amend the pleading absence of any specific claims against Defendant BAC Home Loans Servicing, LP and the absence 4 of any factual allegations to support any of the claims. As noted above, Plaintiff has not filed an 5 Opposition. The Court finds that Plaintiff's Complaint is fatally deficient in a number of respects, 6 including failure to satisfy the minimum pleading requirements of Federal Rule of Civil Procedure 7
8. Thus, the Court grants Defendant's Motion to Dismiss. The Court offers the following 8 discussion should Plaintiff choose to amend her complaint after reviewing this Order. See, e.g.,9
Defendant has moved to dismiss the Complaint on a number of grounds, including the Gutierrez v. Wells Fargo Bank, 2009 U.S. Dist. LEXIS 38142 (N.D. Cal. Apr. 20, 2009) (adopting 10 a similar approach in a foreclosure action involving a pro se plaintiff). Such an amended complaint dismissal of this entire action with prejudice.
among other things, disclosure of finance charges and the annual percentage rate. See 15 U.S.C. 17 § 1638(a); 12 C.F.R. § 226.18. Lenders must provide borrowers with clear and accurate 18 disclosures, including two copies of a notice of a right to rescission. 15 U.S.C. § 1635. Violation 19 of TILA provides borrowers with two potential forms of relief: rescission and monetary damages. 20
See 15 U.S.C. §§ 1635, 1640. If a lender fails to disclose material information required by TILA, a 21 borrower has a right to rescind within three years of consummation of the loan. See King v. 22 California, 784 F.2d 910, 913 (9th Cir. 1986). In addition, a borrower has a right to monetary 23 damages within one year of consummation of the loan. Id. at 915. However, "the doctrine of 24 equitable tolling may, in the appropriate circumstances, suspend the limitations period until the 25 borrower discovers or had reasonable opportunity to discover the fraud or nondisclosures that form 26 the basis of the TILA action." See id. at 915.
monetary damages. In either case, however, Plaintiff has failed to state a claim for a violation of must provide specific factual allegations to support each of her claims. Failure to do so risks
A.Plaintiff's Federal Claim
Plaintiff alleges only one federal cause of action: a violation of TILA. TILA requires,
Plaintiff does not specify in her Complaint whether her TILA claim is for rescission or
TILA. As noted above, Plaintiff has failed to allege any specific factual allegations to support her 2
TILA claim. For example, Plaintiff does not allege that Defendant failed to make required 3 disclosures or that Defendant made inaccurate disclosures. Moreover, any such allegation as to the 4 origination of the loan against Defendant BAC Home Loans Servicing, LP, a loan servicer not a 5 lender, would seem implausible. See Twombly, 550 U.S. at 570 (the ...