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Joseph Durland v. Litton Loan Servicing Lp; et al

March 1, 2011

JOSEPH DURLAND,
PLAINTIFF,
v.
LITTON LOAN SERVICING LP; ET AL DEFENDANTS.



The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge

.(Doc. No. 13.)

ORDER: (1) GRANTING DEFENDANT'S REQUEST FOR JUDICIAL NOTICE AND (2)GRANTING DEFENDANT'S FIELDSTONE MORTGAGE COMPANY; MOTION TO DISMISS.

Presently before the Court are Defendant Litton Loan Servicing LP's*fn1 (Litton) motion to dismiss Plaintiff Joseph Durland's (Plaintiff) first amended complaint (Doc. No. 13) and request for judicial notice (Doc. No. 13-1 (Req. Judicial Notice)). Also before the Court are Plaintiff's opposition (Doc. No. 14 (Opp'n)), and Litton's reply (Doc. No. 15 (Reply)). After consideration, the Court GRANTS Litton's request for judicial notice and GRANTS Litton's motion to dismiss.

BACKGROUND

This action arises out of an alleged note, loan, and security interest that Plaintiff obtained from Defendant Fieldstone Mortgage Company. (Doc. No. 11 (FAC) ¶ 4.) Plaintiff obtained the loan on October 6, 2006, to refinance real property that Plaintiff owned in Valley Center, CA. (Id.

¶¶ 1, 13.) Plaintiff commenced this action by filing a complaint in this Court on January 15, 2010, asserting twelve causes of action: (1) Violation of Real Estate Settlement Procedures Act, 12 U.S.C. § 2605; (2) Violation of Truth-in-Lending Act, 15 U.S.C. § 1601; (3) Violation of Fair Debt Collection Practice Act, 15 U.S.C. § 1692; (4) Violation of Rosenthal Fair Debt Collections Practice Act, Cal. Civ. Code § 1788; (5) Violation of Cal. Civ. Code § 2924; (6) Violation of Cal. Civ. Code § 2923.6; (7) Unfair Competition under Cal. Bus. & Prof. Code § 17200; (8) Negligent Misrepresentation; (9) Fraud; (10) Rescission; (11) Quasi-contract; and (12) Determination of Validity of Lien. (Doc. No. 1 (Compl.), at 1.)

On March 23, 2010, Litton filed a motion to dismiss. (Doc. No. 5.) The Court granted the motion in its entirety, giving Plaintiff twenty days to amend. (Doc. No. 10 (Order) at 9.) Plaintiff then filed an amended complaint. (FAC.) This complaint is the subject of Litton's present motion.

LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the defense that the complaint "fail[s] to state a claim upon which relief can be granted," generally referred to as a motion to dismiss. The Court evaluates whether a complaint states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil Procedure 8(a), which requires a "short and plain statement of the claim showing that the pleader is entitled to relief." Although Rule 8 "does not require 'detailed factual allegations,' . . . it [does] demand[] more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, ---- U.S. ----, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, "a plaintiff's obligation to provide 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." Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 557).

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible if the facts pleaded "allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 556). That is not to say that the claim must be probable, but there must be "more than a sheer possibility that a defendant has acted unlawfully." Id. Facts "'merely consistent with' a defendant's liability" fall short of a plausible entitlement to relief. Id. (quoting Twombly, 550 U.S. at 557). Further, the Court need not accept as true "legal conclusions" contained in the complaint. Id. This review requires context-specific analysis involving the Court's "judicial experience and common sense." Id. at 1950 (citation omitted). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged----but it has not 'show[n]'----'that the pleader is entitled to relief.'" Id.

If a court grants a motion to dismiss, it should also grant leave to amend "'unless [it] determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency.'" DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). In other words, where leave to amend would be futile, the Court may deny leave to amend. See id.; Schreiber, 806 F.2d at 1401.

ANALYSIS

1. Litton's Request for Judicial Notice

Litton requests that the Court judicially notice the following documents: the deed of trust that encumbers the property at issue, the notice of default and election to sell under that deed of trust, the notice of trustee's sale, two alleged qualified written requests (QWRs) sent to ...


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