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Patrick J. Germon and Elizabeth W. Germon v. Bac Home Loans Servicing

February 22, 2011

PATRICK J. GERMON AND ELIZABETH W. GERMON, PLAINTIFFS,
v.
BAC HOME LOANS SERVICING, L.P., ET AL. DEFENDANT.



The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge

ORDER GRANTING MOTION TO DISMISS COMPLAINT

Defendants BAC Home Loans Servicing, LP (a limited partnership fka Countrywide Home Loans Servicing, LP) ("BAC"), ReconTrust Company ("ReconTrust"), and Mortgage Electronic Registration Systems ("MERS") have filed a motion to dismiss Plaintiffs' Complaint for failure to state a claim. For the reasons discussed below, Defendants' motion is GRANTED.

I. BACKGROUND

Plaintiffs allege that in late 2007, they obtained a $1,000,000 "refinance loan" from Countrywide Home Loans, Inc. (Compl. ¶ 9.)

On December 21, 2007, Plaintiffs executed a Note in favor of Countrywide Bank, FSB, in the amount of $1,000,000 plus interest. (RJN, Ex. A.)

The Note was secured by a Deed of Trust that was recorded against Plaintiffs' property at 16 Saddle Creek Rd., Fallbrook, CA 92028-9222 (the "Property"). (RJN, Ex. B.)

The Deed of Trust identified ReconTrust as the trustee and MERS as the beneficiary. (Id.) Plaintiffs defaulted on their loan, and on May 4, 2010, ReconTrust recorded a Notice of Default. (RJN, Ex. C.) The Notice explained that the beneficiary under the Deed of Trust had elected to cause the trust property to be sold to satisfy the obligations secured thereby.

On May 6, 2010, MERS assigned its beneficial interest to BAC. (RJN, Ex. D.) On August 11, 2010, ReconTrust recorded a Notice of Trustee's Sale, which set the sale for September 3, 2010. (RJN, Ex. E.)

Plaintiffs contacted BAC to request a modification of their loan. (Compl. ¶ 14.) In early September, BAC agreed to postpone the Trustee's Sale to October 1, 2010. (Id.) Ultimately, Plaintiffs' loan modification request was denied. (Compl. ¶ 15.)

The Trustee's Sale proceeded on October 1, 2010, and BAC purchased the Property. (RJN, Ex. G.)

On October 21, 2010, Plaintiffs commenced this action. In their Complaint, Plaintiffs assert the following claims: (1) Claim to Set Aside Trustee Sale; (2) Claim to Cancel Trustee's Deed; (3) Quiet Title; (4) Accounting; (5) Breach of Contract; (6) Breach of Implied Covenant of Good Faith & Fair Dealing; (7) Violation of Federal Fair Debt Collection Practices Act ("FDCPA"); and (8) Violation of Federal Truth In Lending Act. Plaintiffs seek an order setting aside the Trustee's Sale of the Property and quieting title in Plaintiffs as owners of the Property. Plaintiffs also pray for an accounting, damages, and attorney's fees and costs.

II. STANDARD

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) should be granted only where a plaintiff's complaint lacks a "cognizable legal theory" or sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988). When reviewing a motion to dismiss, the allegations of material fact in plaintiff's complaint are taken as true and construed in the light most favorable to the plaintiff. See Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). Although detailed factual allegations are not required, factual allegations "must be enough to raise a right to relief above the speculative level." Bell Atlantic v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007). "A plaintiff's obligation to prove the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. "[W]here the well-pleaded facts do not ...


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