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Antonio V. Naguiat, Jr., et al v. Bac Home Loans Servicing

February 9, 2011

ANTONIO V. NAGUIAT, JR., ET AL.,
PLAINTIFFS,
v.
BAC HOME LOANS SERVICING, LP, DEFENDANT.



The opinion of the court was delivered by: Richard Seeborg United States District Judge

**E-filed 2/9/11**

court For the Northern District of California

ORDER GRANTING MOTION TO DISMISS, WITH LEAVE TO AMEND

I. INTRODUCTION

were induced to enter a "predatory loan agreement" to finance their primary residence. They assert 20 a number of claims related to the loan transaction, and to subsequent foreclosure proceedings that 21 apparently were commenced, but which have not yet culminated in a sale of the property.

Defendant BAC Home Loans Servicing, LP, whose role in the alleged wrongdoing is not specified, 23 but which presumably is servicing the loan and has communicated with plaintiffs regarding the 24 foreclosure, moves to dismiss. Pursuant to Civil Local Rule 7-1(b), the matter was submitted 25 without oral argument. Although the complaint includes a lengthy and conclusory indictment of 26 the lending industry, it is devoid of any facts showing wrongdoing in plaintiffs' own loan 27 transaction or the foreclosure process, and wholly fails to identify the basis of any claim against 28 Plaintiffs Antonio V. Naguiat, Jr. and Olivia B. Magno, appearing in pro se, allege that they BAC. Accordingly, the motion to dismiss must be granted. Particularly in light of plaintiffs' status 2 as pro se litigants, however, they will be granted an opportunity to amend. 3 4

Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a claim may be dismissed 6 because of a "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). A 7 dismissal under Rule 12(b)(6) may be based on the lack of a cognizable legal theory or on the 8 absence of sufficient facts alleged under a cognizable legal theory. Johnson v. Riverside Healthcare

In reviewing a complaint under Rule 12(b)(6), all allegations of material fact are taken as true and construed in the light most favorable to the non-moving party. Marceau v. Blackfeet Hous. Auth., 540 F.3d 916, 919 (9th Cir. 2008); Vignolo v. Miller

II. LEGAL STANDARD

Sys., 534 F.3d 1116, 1121 (9th Cir. 2008); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). 10

The Court, however, is not required "to accept as true allegations that are merely conclusory,

i

For the Northern District of California

unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig., 536 F.3d 15

2001). Although they may provide the framework of a complaint, legal conclusions are not accepted

as true and "[t]hreadbare recitals of elements of a cause of action, supported by mere conclusory 18 statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009); see also Bell Atlantic 19

Additionally, the complaint here includes some claims that assert fraud. Rule 9(b) of the Federal Rules of Civil Procedure requires that "[i]n allegations of fraud or mistake, a party must 22 state with particularity the circumstances constituting fraud or mistake." To satisfy the rule, a 23 plaintiff must allege the "who, what, where, when, and how" of the charged misconduct. Vess v. 24 Ciba-Geigy Corp. U.S.A., 317 F.3d 1097, 1106 (9th Cir. 2003). In other words, "the circumstances 25 constituting the alleged fraud must be specific enough to give defendants notice of the particular 26 misconduct so that they can defend against the charge and not just deny that they have done 27 anything wrong." Id. 28

1049, 1056-57 (9th Cir. 2008); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.

S ted ...


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