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Title: Kevin Hanaway v. Jpmorgan Chase Bank

February 15, 2011

TITLE: KEVIN HANAWAY
v.
JPMORGAN CHASE BANK



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

CIVIL MINUTES - GENERAL

O, JS-6

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 DEFENDANT'S MOTION TO DISMISS

Before the Court is a Motion to Dismiss Plaintiff's First Amended Complaint ("FAC") filed by Defendant JPMorgan Chase Bank ("JPMorgan") in the above-captioned case ("Motion to Dismiss"). The court finds this matter appropriate for decision without oral argument. Fed.R.Civ. P. 78; Local Rule 7-15. After considering the moving, opposing and replying papers, and for the reasons stated below, the Court hereby GRANTS the Motion.

I. Background

On April 19, 2004, Plaintiff obtained a mortgage loan (the "loan") from Washington Mutual Bank, FA ("Washington Mutual") for real property located at 25 Skywood Street, Ladera Ranch, California 92694 (the "Property"). FAC ¶ 1. The loan was secured by a deed of trust ("DOT"), which identified Washington Mutual as the beneficiary and California Reconveyance Company as the trustee. Defendant's Motion to Dismiss ¶ 1. On September 25, 2008, the Office of Thrift Supervision closed Washington Mutual and appointed the Federal Deposit Insurance Corporation ("FDIC") as the receiver. On the same date, Defendant purchased the failed Washington Mutual from the FDIC. Id. at

In the meantime, Plaintiff allegedly defaulted on the loan. On March 18, 2009, a Notice of Default and Election to Sell Under Deed of Trust was purportedly recorded in the Orange County Official Records. On April 30, 2009, Quality Loan Service Corporation ("Quality"), who is not a party to this action, became the trustee under the DOT pursuant to a Substitution of Trustee. Id. After Plaintiff allegedly failed to reinstate the loan, the Property was foreclosed on August 20, 2009 and sold to Defendant. FAC ¶ 8. A Trustee's Deed of Sale was allegedly recorded on August 26, 2009 with the Orange County Official Records. Defendant's Motion to Dismiss ¶ 2.

Plaintiff contends that Defendant wrongfully instituted foreclosure proceedings, and that in so doing, violated numerous federal and California state laws. FAC ¶ 8. Plaintiff filed suit in Orange County Superior Court. Defendant removed the action to federal court. Following removal, Plaintiff filed their First Amended Complaint ("FAC"), asserting claims for (1) Declaratory Relief, (2) Fraud, (3) Violation of the Truth in Lending Act ("TILA"), 15 U.S.C. § 1601, (4) Violation of the Federal Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, (5) Fair Credit Reporting Act ("FCRA"), (6) Wrongful Foreclosure, (7) Violation of Cal. Civ. Code § 1788.17, and (8) Injunctive Relief. Defendant now moves to dismiss the FAC on the grounds that it fails to state a claim upon which relief may be

II. Legal Standard

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 possibly 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 ...


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