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Eric Davis and Serena Davis v. Citibank West

March 24, 2011

ERIC DAVIS AND SERENA DAVIS,
PLAINTIFFS,
v.
CITIBANK WEST, FSB, AND AS MOOT CITIMORTGAGE, INC.,
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 GRANTING MOTION TO DISMISS AND DENYING MOTION TO STRIKE

Before the Court is a Motion to Dismiss (Motion) Plaintiffs' First Amended Complaint (FAC) brought by Defendants Citibank West, FSB, and Citimortgage, Inc. (together, Citibank).

Plaintiffs Eric and Serena Davis filed an opposition brief and Motion to Strike Defendants' Motion.

Having considered the parties' submissions and arguments, and for the reasons set forth below, the Court GRANTS Defendant's Motion to Dismiss and DENIES Plaintiffs' Motion to Strike.

I. Background

On June 28, 2005, Plaintiffs Eric and Serena Davis obtained a $1,500,000 home mortgage 24 loan from Citibank secured by their home at 3737 Coyote Canyon, Soquel, CA. FAC at ¶ 14.

Plaintiffs served Citibank with a complaint on October 4, 2010, and amended their complaint on October 6, 2010. Dkt Nos.1, 3, 5. In their FAC, Plaintiffs allege that their loan was provided in 27 the form of a "check or checks not backed by or redeemable in Federal Reserve Notes, coins or 28 lawful money of the United States for their full face value." FAC ¶ 21. Plaintiffs assert four causes of action based on the allegedly illusory loan: Breach of Contract, Fraud (Mail and Wire), 2 Usury, and violations of the Truth in Lending Act (TILA, 15 U.S.C. § 1600 et seq.) . Id. ¶¶ 28-43.

A motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 6 2001). In considering whether the complaint is sufficient to state a claim, the court must accept as 7 true all of the factual allegations contained in the complaint. Ashcroft v. Iqbal, 129 S.Ct. 1937, 8

II. Legal Standard

1949 (2009). However, the court need not accept as true "allegations that contradict matters 9 properly subject to judicial notice or by exhibit" or "allegations that are merely conclusory, 10 unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). While a complaint need not allege detailed factual allegations, it United States District Court For the Northern District of California "must contain sufficient factual matter, accepted as true, to "'state a claim to relief that is plausible 13 on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 14 (2007)). A claim is facially plausible when it "allows the court to draw the reasonable inference 15 that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949. 16 17 of Federal Rule of Civil Procedure 9(b). Under the federal rules, a plaintiff alleging fraud "must 18 state with particularity the circumstances constituting fraud." Fed. R. Civ. Pro. 9(b). To satisfy 19 this standard, the allegations must be "specific enough to give defendants notice of the particular 20 misconduct which is alleged to constitute the fraud charged so that they can defend against the 21 charge and not just deny that they have done anything wrong." Semegen v. Weidner, 780 F.2d 727, 22 731 (9th Cir. 1985). Thus, claims sounding in fraud must allege "an account of the time, place, and 23 specific content of the false representations as well as the identities of the parties to the 24 misrepresentations." Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir. 2007).

26 could not possibly be cured by the allegation of other facts. Lopez v. Smith, 203 F.3d 1122, 1130 27 (9th Cir. 2000). The rule favoring liberality in granting leave to amend is particularly important for 28 pro se litigants. Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000).

Additionally, claims sounding in fraud are subject to the heightened pleading requirements If a court grants a motion to dismiss, leave to amend ...


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