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Sean Park, Michelle Park v. Wells Fargo Bank Home Mortgage

March 30, 2011

SEAN PARK, MICHELLE PARK,
PLAINTIFFS,
v.
WELLS FARGO BANK HOME MORTGAGE;
FIDELITY NATIONAL TITLE INSURANCE COMPANY; FIRST AMERICAN TITLE INSURANCE COMPANY AKA FIRST AMERICAN LOANSTAR SERVICES, LLC; BANK OF AMERICA, N.A.; OLD REPUBLIC TITLE COMPANY;
COUNTRYWIDE BANK, FSB; BANK OF AMERICA HOME LOANS SERVICING, LP; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS; RECONTRUST COMPANY, N.A.; LSI TITLE COMPANY; DOES 1--100. DEFENDANTS.



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

ORDER: (1) GRANTING DEFENDANT WELLS FARGO'S MOTION TO DISMISS; (2) GRANTING DEFENDANT COUNTRYWIDE'S MOTION TO DISMISS; (3) DENYING PLAINTIFFS' MOTION TO FILE SURREPLY; AND (4) DENYING EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER

(DOC. NOS. 34, 35, 65, & 69.)

Presently before the Court are three motions and an ex parte application for temporary restraining order. Two motions are to dismiss Plaintiffs' first amended complaint. The first is brought by Wells Fargo Bank, N.A., Bank of America, N.A., and Mortgage Electronic Registration Systems (MERS). (Doc. No. 34 (Wells Fargo Mot.).) The second is brought by Bank of America, N.A., in its capacity as successor to Countrywide Bank, N.A. (Doc. No. 35 (Countrywide Mot.).) LSI Title Co. has joined Countrywide's motion. (See Doc. No. 51 (Joinder).) The third motion is Plaintiffs' ex parte motion for leave to file a surreply. (Doc. No. 65 (Surreply Mot.)).

After consideration, the Court GRANTS WITH PREJUDICE the motion to dismiss affecting LSI Title Co. and Bank of America, N.A. in its capacity as successor to Countrywide Bank, N.A. The Court GRANTS WITHOUT PREJUDICE the motion affecting Wells Fargo, Bank of America, and MERS. The Court also DENIES Plaintiffs' ex parte motion to file a surreply. Additional briefing on the motions to dismiss is unnecessary. And finally, having dismissed Plaintiffs' first amended complaint, the ex parte application for temporary restraining order depending on it is DENIED AS MOOT.

BACKGROUND

This action arises out of a loan that Plaintiffs obtained from Wells Fargo Bank. (Doc. No. 32 (FAC) ¶ 3.) Plaintiffs obtained the loan on November 4, 2005, to refinance real property that they owned in La Mesa, CA. (Id. ¶¶ 3, 57.) Plaintiffs also secured a home equity line of credit from Countrywide in 2007. (Countrywide Mot. at 1.) Foreclosure proceedings were commenced in 2009 after Plaintiffs stopped making payments on the loan. (Wells Fargo Mot. at 1.)

Plaintiffs filed a complaint in this Court on August 19, 2010. (Doc. No. 1 (Compl.).) Defendants filed motions to dismiss. (Doc. Nos. 23, 25, & 28.) The Court granted the motions, giving Plaintiffs leave to amend. (Doc. No. 31 (Order).)

Plaintiffs then filed an amended complaint (FAC), asserting fifteen causes of action: (1) violation of Truth-in-Lending Act (TILA), 15 U.S.C. § 1601; (2) violation of Rosenthal Fair Debt Collections Practice Act, Cal. Civ. Code § 1788; (3) violation of Fair Debt Collection Practice Act (FDCPA), 15 U.S.C. § 1692; (4) wrongful disclosure; (5) violation of Real Estate Settlement Procedures Act (RESPA), 12 U.S.C. § 2605; (6) breach of fiduciary duty; (7) fraud (intentional misrepresentation); (8) fraud (negligent misrepresentation); (9) unfair competition under Cal. Bus. & Prof. Code § 17200; (10) breach of contract; (11) breach of implied covenant of good fair and fair dealing; (12) violation of Cal. Civ. Code § 2923.5; (13) violation of Home Ownership and Equity Protection Act (HOEPA), 15 U.S.C. § 1639; (14) rescission; (15) accounting. (FAC.) This complaint is the subject of Defendants' present motions.

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.

ANALYSIS

At the outset, the Court must determine whom Plaintiffs are suing. Nominally, Plaintiffs assert claims "against all Defendants." (See generally FAC.) Substantively, however, Plaintiffs' claims do not extend that far. Plaintiffs' asserted causes of action concern only the loan secured in 2005. Countrywide and LSI were involved in the home equity line of credit that Plaintiffs obtained in 2007. (Countrywide Mot. at 2--3; Joinder at 2.) As a result, Plaintiffs cannot state claims against Countrywide and LSI. The Court therefore GRANTS those parties' motion to dismiss and DISMISSES WITH PREJUDICE Plaintiffs' first amended complaint as to those parties. In ...


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