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Carlos Ancheta v. Golden Empire Mortgage

March 7, 2011

CARLOS ANCHETA,
PLAINTIFF,
v.
GOLDEN EMPIRE MORTGAGE, INC., DBA
GEM CAPITAL FUNDING, A CALIFORNIA
CORPORATION; FIRST AMERICAN TITLE
COMPANY, A CALIFORNIA
CORPORATION; AURORA LOAN
SERVICES, A BUSINESS ENTITY, FORM
UNKNOWN; TUSCANA PROPERTIES, A BUSINESS ENTITY, FORM UNKNOWN;
IBM LENDER BUSINESS PROCESS SERVICES, INC., A BUSINESS ENTITY,
FORM UNKNOWN; MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS,
INC., A DELAWARE CORPORATION; AND DOES 1 THROUGH 50, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Lucy H. Koh United States District Judge

United States District Court For the Northern District of California

ORDER DISMISSING FEDERAL CLAIMS

I. Introduction

Defendants Golden Empire Mortgage, Inc., dba GEM Capital Funding (Golden Empire), First American Title Company, Aurora Loan Services (Aurora), Lexington Enterprises Group, Inc., 26 dba Tuscana Properties, IBM Lender Business Process Services, Inc. (IBM), and Mortgage 27 Electronic Registration Systems, Inc. (together, Defendants) move to dismiss the complaint in this 28 action for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6). See Dkt. Nos. 9, 14, 17, 21, 24, 33. Plaintiff, proceeding pro se, submitted no opposition 2 to these four Motions. The Court finds that this matter is suitable for decision without oral 3 argument. Civil Local Rule 7-1(b). Accordingly, the hearing on these Motions, set for March 10, 4 2011, is hereby VACATED. Because the Court DISMISSES Plaintiff's complaint in part with 5 leave to amend, the Case Management Conference set to follow the March 10, 2011 law and 6 motion hearing is likewise VACATED. For the reasons set forth below, the complaint is

II. Background

DISMISSED in part with prejudice and DISMISSED in part with leave to amend.

10 gathered from the parties' papers and requests for judicial notice. On March 1, 2006, Plaintiff 11

Although the Complaint omits many relevant facts, the following information can be

Carlos Ancheta obtained a mortgage loan fo

r $388,000 secured by real property at 2038 Lunder

Court, San Jose, California 95131 ("the Property"). Compl. ¶ 18. This primary loan was recorded 13 with the Santa Clara County Recorder's office on March 1, 2006. See IBM's Request for Judicial 14

Trust shows, that Golden Empire was the lender under the loan. 16

Notice (IBM RJN, Dkt. No. 20, Att. 1) at Ex. 1 (Deed of Trust).*fn1 Plaintiff alleges, and the Deed of 15

On the same date that he obtained the Primary Loan, Plaintiff also obtained a Secondary Loan in the amount of $97,000.00. See Compl. ¶ 18. Like the Primary Loan, the Secondary Loan 18 was also secured by the Property. Id. Plaintiff states that "this complaint pertains to the First 19

Plaintiff alleges very generally that "DEFENDANTS . . . neither explained the workings of 21 the entire mortgage loan transaction, how the rates, finance charges, costs and fees were computed; 22 nor the inherent volatility of the loan product(s) provided by DEFENDANTS." Compl. ¶ 39. 23

Plaintiff further alleges that the loan was drafted and "explained (to the extent that any of it was 24 actually explained) in English" but that Plaintiff's native language is Tagalog. 25

Mortgage." Compl. ¶ 18. 20

Plaintiff defaulted on at least the Primary Loan. A Notice of Default was recorded on April 7, 2009. See IBM RJN, Ex. 2. On July 9, 2009, a Notice of Trustee's Sale relating to the Deed of 27

Trust securing the Primary Loan was recorded. See IBM RJN, Ex. 4. A Trustee's Deed Upon Sale 2 was recorded on October 14, 2010, reflecting that the Property was sold at public auction on March 3

On October 25, 2010, Plaintiff filed the underlying Complaint in the Superior Court for

Santa Clara County. On December 9, 2010, the Defendant Aurora Loan Services removed the 6

Complaint to this Court on the basis of original federal jurisdiction over the claims arising under 7 federal law. See Not. of Removal (Dkt. No. 1). 8

10 it fails to state a claim upon which relief can be granted. To survive a motion to dismiss, the

11, 2010. See IBM RJN, Ex. 5. 4

III. Legal Standard

Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This "facial plausibility" standard requires the 13 plaintiff to allege facts that add up to "more than a sheer possibility that a defendant has acted 14 unlawfully." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). In deciding whether the plaintiff has 15 stated a claim, the Court must assume the plaintiff's allegations are true and draw all reasonable 16 inferences in the plaintiff's favor. Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). 17

However, the court is not required to accept as true "allegations that are merely conclusory, 18 unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig., 536 19 F.3d 1049, 1055 (9th Cir. 2008). Leave to amend must be granted unless it is clear that the 20 complaint's deficiencies cannot be cured by amendment. Lucas v. Dep't. of Corrections, 66 F.3d 21

"[A] district court should grant leave to amend even if no request to amend the pleading 23 was made, unless it determines that the pleading could not possibly be cured by the allegation of 24 other facts." Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (quoting Doe v. United States, 58 25 F.3d 494, 497 (9th Cir. 1995)). In addition, the "rule favoring liberality in amendments to 26 pleadings is particularly important for the pro se litigant. Presumably unskilled in the law, the pro 27 se litigant is far more prone to making errors in pleading than the person who benefits from the 28 representation of counsel." Id., 203 F.3d at 1131.

245, 248 (9th Cir. 1995). 22

3 distinguishing between the actions of different defendants in the various causes of action. The 4 moving defendants seek to dismiss all twenty-nine causes of action. Plaintiff has failed to oppose 5 defendants' Motions or to file a statement of nonopposition as required by Civil Local Rule 7-3(b). 6

IV. Application

The Complaint alleges twenty-nine causes of action against all defendants, often without

Of the twenty-nine causes of action alleged, only ten claims implicate federal law. The

Court will consider only the asserted federal causes of action in this Order. Unless Plaintiff can 8 amend these federal causes of action to state a claim, the remaining claims arising under state law 9 will be remanded to state court. 10

12 of the federal Bankruptcy Code. Plaintiff titles his third claim "California Commercial Code 13

Deed of Trust was transferred from GOLDEN to AURORA. PLAINTIFF alleges on information 15 and belief that no trustee was a holder in due course, and did not deliver to QUALITY or any 16 successor trustee the original promissory note." Compl. ¶ 125. Plaintiff alleges that these actions 17 violated California Commercial Code § 9313. As a result, Plaintiff states that the "unperfected 18 security interest of DEFENDANT is void as to PLAINTIFF by virtue of 11 U.S.C. § 544." Compl. 19 11 U.S.C. § 544. If it does, Plaintiff has failed to allege sufficient facts explaining how such a 21 claim would arise. Accordingly, this claim is DISMISSED without prejudice. Should the Plaintiff 22 attempt to re-assert this claim, he must ...


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