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Charles Earvin Macklin v. Onewest Bank

April 6, 2011

CHARLES EARVIN MACKLIN,
PLAINTIFF,
v.
ONEWEST BANK, F.S.B., AS SUCCESSOR IN INTEREST TO
INDYMAC BANK, F.S.B., A FEDERALLY CHARTERED BANK ET AL., DEFENDANTS.



MEMORANDUM and ORDER

Plaintiff Charles Macklin ("Plaintiff") seeks redress against Defendants Onewest Bank, F.S.B. ("Onewest"), the Federal Home Loan Mortgage Corporation ("Indymac"), Titanium Solutions, Inc., and MTC Financial Inc. dba Trustee Corps. ("MTC," collectively, "Defendants") relating to a mortgage note and Deed of Trust on Plaintiff‟s home, executed in 2007. Plaintiff asserted this action in Sacramento County Superior Court, and Defendant Indymac timely removed the case to this Court.

Presently before the Court are two separate Motions to Dismiss Plaintiff‟s Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6)*fn1 ; one filed by Defendants Onewest and Indymac, and another 4 filed by Defendant Titanium Solutions, Inc. (See ECF Nos. 10 and 14, respectively.) For the reasons stated below, Defendants‟ Motions to Dismiss are granted.*fn2

BACKGROUND*fn3

Plaintiff purchased a property in late 2007 with a principal loan from Indymac. In late 2008, Plaintiff contacted Indymac to inquire about a home loan modification. The bank‟s representative subsequently indicated that Plaintiff could not qualify for a home loan modification because he was not in arrears. Relying on the representative‟s advice, Plaintiff ceased paying his mortgage. In early April 2009, Defendant MTC recorded a Notice of Default, and Plaintiff received notice of the default and that he owed over $10,000.00 on his mortgage.

In September 2009, Plaintiff‟s home was foreclosed upon and 2 sold in a trustee‟s sale. Plaintiff never received word or notice 3 of the pending sale. Plaintiff maintains he had the means to 4 continue paying his mortgage, but failed to do so based upon the 5 advice Indymac‟s representative gave him; namely that to qualify 6 for a loan modification, the mortgage had to be in arrears.

In May 2010, Plaintiff, represented by different counsel, 8 filed an action in this Court under the case caption Charles Macklin v. Indymac Bank et al., 2:10-cv-1081 (the "Original Case"). The facts in the Original Case are nearly identical to the facts alleged in the instant Complaint. The Original Case alleged twelve causes of action, including fraudulent inducement of contract, and various violations of California Business & Professions Code § 17200 et seq. Defendant Titanium Solutions Inc. filed a motion to dismiss the complaint in the Original Case on June 9, 2010.

The Court granted Defendant‟s Motion, and gave Plaintiff leave to amend his complaint. Plaintiff failed to do so in a timely fashion, and the causes of action against Defendant Titanium Solutions Inc. were dismissed with prejudice. In August 2010, Defendants Onewest and Indymac filed their motion to dismiss. Plaintiff failed to file a response to either motion, and similarly failed to appear at the hearing on September 30, 2010. The Court sanctioned Plaintiff‟s counsel for failing to appear, and dismissed the entire case with prejudice.

In January 2011, Plaintiff, represented by new counsel, filed the instant action requesting damages and relief for violations of California code and breach of oral contract. After Defendant Indymac removed the action, this Court related the Original Case to 5 the instant caption in the interest of judicial economy. (See 6 Related Case Order, ECF No. 16.)

Defendants all contend that Plaintiff‟s suit is barred by the 8 doctrine of res judicata, or claim preclusion, since similar issues 9 were properly litigated in the Original Case. Plaintiff believes the instant suit is proper because the recent complaint did not include identical causes of action to the Original Case, and there are facts at issue that did not exist at the time the Original Case was dismissed.

STANDARD

On a motion to dismiss for failure to state a claim under Rule 12(b)(6), all allegations of material fact must be accepted as 9 true and construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Rule 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," to "give the defendant fair notice of what the...claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations and quotations omitted).

Though "a complaint attacked by a Rule 12(b)(6) motion" need 2 not contain "detailed factual allegations, a plaintiff‟s obligation 3 to provide the "grounds‟ of his "entitlement to relief‟ requires 4 more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 2869 (1986)). A plaintiff‟s "factual allegations must be enough to raise a right to relief 8 above the speculative level." Id. (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004) ("[T]he pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action.")).

Further, "Rule 8(a)(2)...requires a "showing,‟ rather than a blanket assertion, of entitlement to relief. Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirements of providing...grounds on which the claim rests." Twombly, 550 U.S. at 555 n.3 (internal citations omitted). A pleading must then contain "only enough facts to state a claim to 9 relief that is plausible on its face." Id. at 570. If the "plaintiffs...have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed." Id.

Once the court grants a motion to dismiss, they must then decide whether to grant a plaintiff leave to amend. Rule 15(a) authorizes the court to freely grant leave to amend when there is no "undue delay, bad faith, or dilatory motive on the ...


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