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Eleazar Salazar v. Accredited Home Lenders

March 30, 2011

ELEAZAR SALAZAR,
PLAINTIFF,
v.
ACCREDITED HOME LENDERS, INC., ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge

ORDER (1)GRANTING IN-PART (2) DENYING WITHOUT PREJUDICE MOTION TO STRIKE AND (3) REMANDING CASE TO THE IMPERIAL COUNTY SUPERIOR COURT MOTION TO DISMISS [DOC. 16],

[DOC. 17],

On February 9, 2009, Plaintiff Eleazar Salazar filed this lawsuit against Accredited Home Lenders, Inc., Litton Loan Servicing, Inc., Quality Loan Service Corporation, Mortgage Electronic Registration Systems, Inc., and U.S. Bank National Association. On February 16, 2010, U.S. Bank and Litton ("Defendants") moved to dismiss and strike the Complaint. On July 6, 2010 this court granted in part and denied in part Defendants' motion.

On August 9, 2010, Plaintiff filed a First Amended Complaint ("FAC"). On August 12, 2010, Defendants moved to dismiss and strike the FAC. Plaintiff opposed the motions.

The Court decides the matters on the papers submitted and without oral argument pursuant to Civil Local Rule 7.1(d)(1). For the following reasons, the Court GRANTS IN-PART the motion to dismiss [Doc. 16], DENIES WITHOUT PREJUDICE the motion to strike [Doc. 17], and REMANDS the remaining claims to state court.

I. BACKGROUND

In October 2005, Plaintiff obtained a mortgage loan from Defendants to refinance real property located at 1268 Emerald Way, Calexico, California. (FAC [Doc. 15], 7:5.) In early 2009, Plaintiff began having difficulty making payments on his mortgage, and on May 7, 2009, Defendants served Plaintiff with a "Notice of Default And Election to Sell Under Deed of Trust." (Id., Ex. 1.)

On January 5, 2010, Plaintiff filed a civil action in the Imperial County Superior Court (Case No. ECU05622) asserting sixteen claims against the Defendants, including four federal claims and twelve state claims. On February 9, 2010, Defendants removed the case to this Court based on federal-question jurisdiction. (See Removal Notice [Doc.

1], 2:12--19.) Defendants then moved to dismiss and strike. On July 2, 2010 this Court granted in part and denied in part Defendants' motion to dismiss with leave to amend and granted the motion to strike. (See Order [Doc. 11].)

Plaintiff filed the FAC on August 9, 2010, asserting eighteen causes of action against the Defendants, including (1) Violation of the Truth in Lending Act (TILA), 15 U.S.C. § 1601; (2) Violation of the Real Estate Settlement Procedures Act (RESPA), 12 U.S.C. § 2601; (3) Violation of Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692; (4) Quiet Title; (5) Wrongful Foreclosure; (6) Order to Set Aside Trustee's Sale; (7) Cancellation of Trustee's Deed; (8) Elder Abuse; (9) Civil Conspiracy; (10) Unfair Business Practices; (11) Violation of RICO, 18 U.S.C. § 1961; (12) Imposition of Constructive Trust; (13) Fraud; (14) Violation of California Civil Code § 2923.5; (15) Violation of California Civil Code § 2923.6; (16) Breach of Contract; (17) Negligence; and (18) Violation of Covenant of Good Faith and Fair Dealing.

On August 12, 2010 Defendants again moved to dismiss and strike the Complaint. Plaintiff opposed the motions.

II. LEGAL STANDARD

The court must dismiss a cause of action for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) tests the complaint's sufficiency. See North Star Int'l v. Arizona Corp. Comm'n., 720 F.2d 578, 581 (9th Cir. 1983). All material allegations in the complaint, "even if doubtful in fact," are assumed to be true. Id. The court must assume the truth of all factual allegations and must "construe them in light most favorable to the nonmoving party." Gompper v. VISX, Inc., 298 F.3d 893, 895 (9th Cir. 2002); see also Walleri v. Fed. Home Loan Bank of Seattle, 83 F.3d 1575, 1580 (9th Cir. 1996).

As the Supreme Court recently explained, "[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964 (2007). Instead, the allegations in the complaint "must be enough to raise a right to relief above the speculative level." Id. at 1964-65. A complaint may be dismissed as a matter of law either for lack of ...


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