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.

Kokopelli Community Workshop Corporation, et al v. Select Portfolio Servicing

February 22, 2011

KOKOPELLI COMMUNITY WORKSHOP CORPORATION, ET AL.,
PLAINTIFFS,
v.
SELECT PORTFOLIO SERVICING, INC., STEPHEN WICHMANN'S AND KOCH BILL ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Hon. Dana M. Sabraw United States District Judge

ORDER GRANTING IN PART PLAINTIFFS' THIRD AMENDED COMPLAINT BY DEFENDANTS SELECT PORTFOLIO SERVICING, INC. AND GRANTING AND DENYING IN PART MOTION TO DISMISS

MOTION TO DISMISS

Pending before the Court are motions to dismiss Plaintiffs' Third Amended Complaint ("TAC") by (1) Defendants Select Portfolio Servicing, Inc. ("SPS") and Bill Koch and (2) Defendant Stephen Wichmann. For the following reasons, SPS and Koch's motion to dismiss is granted in part and denied in part and Wichmann's motion to dismiss is granted.

I.

BACKGROUND

On November 7, 2005, Plaintiffs obtained a refinance mortgage loan from Novelle Financial Services in the amount of $649,000.00, secured by a Deed of Trust on the subject property, which Plaintiff Betty Bryan purchased in 1950. (TAC ¶¶ 2, 46; SPS RJN Ex. 1.*fn1 ) Plaintiffs allege they sent a notice of rescission to Defendants pursuant to the Truth in Lending Act, dated February 5, 2007. (Id. ¶¶ 29, 140.) Subsequent to the rescission, Plaintiffs made an additional approximately $80,000 in payments to Defendants. (Id. at ¶¶ 282-83.) Nonetheless, a Notice of Default was recorded on June 19, 2008. (SPS RJN Ex. 2.) Plaintiffs filed a Complaint in San Diego Superior Court on November 3, 2008. (TAC ¶¶ 37, 49.) An Assignment of the Deed of Trust transferring the Deed to MTGLQ Investor, LP was recorded on December 15, 2008. (SPS RJN Ex. 3.) Plaintiff Betty Bryan filed for Chapter 13 bankruptcy on November 4, 2008. (TAC ¶ 122.) On March 23, 2009, Plaintiffs Betty Bryan and Catherine Bryan recorded a Grant Deed deeding their interest in the subject property to Kokopelli Community Workshop Corporation. (SPS RJN Ex. 4.) A Trustee's Deed Upon Sale was recorded on October 30, 2009, granting to MTGLQ Investors, LP all interest in the subject property under the Deed of Trust. (SPS RJN Ex. 5.) This action was removed to this Court on August 2, 2010. (Doc. 1.) Plaintiffs subsequently filed the TAC on October 8, 2010. (Doc. 9.)

In the TAC, Plaintiffs allege SPS "is a mortgage servicing corporation . . . who shares one common corporate address and national legal department with Defendant MTGLQ Investors, LP and is directly owned by defendant Goldman Sachs Bank." (TAC ¶ 20.) Plaintiffs further allege "Defendant, Bill Koch, was an agent and document control officer for Select Portfolio Servicing Inc. F/K/A Fairbanks Capital Corporation." (Id. at ¶ 26.) Koch also signed the Assignment of Deed of Trust on behalf of SPS. (Id. at ¶ 123; SPS RJN Ex. 3.) Plaintiffs allege "Defendant Stephen C. Wichmann was an agent and attorney for MTGLQ Investor's, LP[,] a subsidiary division of Goldman Sachs." (TAC ¶ 27.)

The TAC includes 18 claims for relief: (1) violation of the Truth in Lending Act ("TILA"), (2) violation fo the California Rosenthal Fair Debt Collection Practices Act, (3) violation of the Fair Debt Collection Practices Act, (4) wrongful foreclosure, (5) violation of the Real Estate Settlement Procedures Act ("RESPA"), (6) breach of fiduciary duty, (7) fraud--intentional misrepresentation, (8) fraud--negligent misrepresentation, (9) violation of California Business and Professions Code § 17200, (10) breach of contract, (11) breach of implied covenant of good faith and fair dealing, (12) violation of California Civil Code § 2923.5, (13) quiet title, (14) elder abuse-violation of Welfare and Institutions Code § 15610, (15) rescission, (16) accounting, (17) to set aside trustee's sale, and (18) to cancel the trust deed. Defendants Bill Koch and SPS filed the pending motion to dismiss the claims against them on October 28, 2010. (Doc. 13.) An opposition, reply, supplemental opposition, and sur-reply were filed. (Docs. 16, 20, 40, 42.) Defendant Wichmann filed the pending motion to dismiss the claims against him on January 24, 2011. (Doc. 36.) Plaintiffs did not file an opposition to Defendant Wichmann's motion to dismiss.

II.

LEGAL STANDARD

A party may move to dismiss a claim under Rule 12(b)(6) if the claimant fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). The Federal Rules require a pleading to include a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The Supreme Court, however, recently established a more stringent standard of review for pleadings in the context of 12(b)(6) motions to dismiss. See Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). To survive a motion to dismiss under this new standard, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). "Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950 (citing Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007)). The reviewing court must therefore "identify the allegations in the complaint that are not entitled to the assumption of truth" and evaluate "the factual allegations in [the] complaint to determine if they plausibly suggest an entitlement to relief." Id. at 1951.

III.

DISCUSSION

A. Defendants SPS and Koch's Motion ...


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.