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Gary L. Foster v. Scme Mortgage Bankers

April 8, 2011

GARY L. FOSTER,
PLAINTIFF,
v.
SCME MORTGAGE BANKERS, INC., ET. AL., DEFENDANTS.



MEMORANDUM AND ORDER RE: MOTIONS TO DISMISS

Plaintiff Gary L. Foster brought this action against defendants SCME Mortgage Bankers, Inc. ("SCME"), Clever Key Financial, LLC, Clever Key Financial, Inc., West Coast Mortgage, Homecomings Financial, LLC f/k/a Homecomings Financial Network, Inc. ("Homecomings"), Aurora Loan Services LLC ("Aurora"), Deutsche Bank Trust Co. ("Deutsche"), Frederick Winston Williams II, and Deborah Diaz, arising out of defendants' allegedly wrongful conduct relating to a loan agreement. Presently before the court are Homecomings's motion to dismiss plaintiff's Second Amended Complaint ("SAC") pursuant to Federal Rule of Civil Procedure 12(b)(6) and Aurora and Deutsche's motion to dismiss the SAC pursuant to Rule 12(b)(6).

I. Factual and Procedural Background

On April 1, 2006, plaintiff entered into an option adjustable rate mortgage with SCME for a $496,000.00 loan to refinance an existing loan. (SAC ¶¶ 19, 28 (Docket No. 138).) The note was secured by plaintiff's primary residence at 25652 Dodds Road of Escalon, California. (Id. ¶¶ 6, 19.) Plaintiff alleges that he did not receive copies of the "loan documents" from SCME at closing. (Id. ¶ 20.) He alleges that he was not provided with a meaningful opportunity to review the documents, and that the documents contained blank spaces when he signed them. (Id. ¶¶ 29-30.)

After the closing, he allegedly tried to ask Diaz, the notary present at the closing, for copies of the documents, but he could not locate her. (Id. ¶¶ 31.) He also unsuccessfully attempted to obtain copies from Diaz's employer and from an escrow officer. (Id. ¶¶ 32-33.) Plaintiff eventually received a copy of the loan documents from Aurora in December of 2009. (Id. ¶¶ 20, 24.) He alleges numerous irregularities in the loan documents, including falsified information on the loan application. (Id. ¶¶ 24-26.) Foster also alleges four violations of the Truth in Lending Act ("TILA") related to the note and Truth in Lending Disclosure Statement. (Id. ¶¶ 35-64.)

On July 9, 2009, a notice of default for plaintiff's property was recorded in the San Joaquin County Recorder's Office. (Homecomings's Req. for Judicial Notice in Supp. of Mot. to Dismiss Pl.'s SAC Ex. B (Docket No. 140).) On January 15, 2010, a notice of trustee's sale was recorded. (Id. Ex. C.) On July 29, 2010, a trustee's deed upon sale for the property was recorded. (Id. Ex. E.) Plaintiff has since been evicted. (Pl.'s Opp'n to Defs.' Mots. to Dismiss at 1:13-14 (Docket No. 119).)

As relevant to these motions, plaintiff's SAC alleges claims against Homecomings and Deutsche for violations of TILA, 15 U.S.C. §§ 1601-1667f, (first cause of action) and against Homecomings, Deutsche, and Aurora for violations of California's Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code §§ 17200-17210, (seventh cause of action). Plaintiff alleges that the moving defendants were assignees of the note, (SAC ¶¶ 12-14), a factual allegation disputed by defendants. (See Homecomings's Notice of Mot., Mot., & Mem. of P. & A. in Supp. of Mot. to Dismiss Pl.'s SAC at 3:24-4:21 (Docket No. 139); Aurora & Deutsche's Mot. to Dismiss Pl.'s SAC; Mem. of P. & A. at 7:11-16, 11 n.3 (Docket No. 142).)

II. Discussion

To survive a motion to dismiss, a plaintiff must plead "only 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 "plausibility standard," however, "asks for more than a sheer possibility that a defendant has acted unlawfully," Ashcroft v. Iqbal, --- U.S. ----, ----, 129 S. Ct. 1937, 1949 (2009), and where a complaint pleads facts that are "'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557). In deciding whether a plaintiff has stated a claim, the court must assume that the plaintiff's allegations are true and draw all reasonable inferences in the plaintiff's favor. Usher v. City of L.A., 828 F.2d 556, 561 (9th Cir. 1987). However, the court is not required to accept as true "allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (internal quotation mark omitted).

In general, a court may not consider items outside the pleadings upon deciding a motion to dismiss, but may consider items of which it can take judicial notice. Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994). A court may take judicial notice of facts "not subject to reasonable dispute" because they are either "(1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b).

The moving defendants have requested that the court take notice of the Deed of Trust, Notice of Default, Notice of Trustee's Sale, Assignment of Deed of Trust, and Trustee's Deed Upon Sale for the subject property. (Homecomings's Req. for Judicial Notice in Supp. of Mot. to Dismiss Pl.'s SAC Exs. A-E; Req. for Judicial Notice in Supp. of Mot. to Dismiss SAC filed by Aurora and Deutsche Exs. 1, 4-5 (Docket No. 143).) The court will take judicial notice of these documents, since they are matters of public record whose accuracy cannot be questioned. See Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001). Aurora and Deutsche also request that the court take judicial notice of the Adjustable Rate Note and the notice of transfer of servicing rights to Aurora. (Req. for Judicial Notice in Supp. of Mot. to Dismiss SAC filed by Aurora and Deutsche Exs. 2-3.) These documents are not judicially noticeable, and the court declines to consider them.

Plaintiff requests that the court take judicial notice of the Third Amended Class Action Complaint in an unrelated case in the Northern District of California, the California Corporations Commissioner's Order to Discontinue Residential Lending and/or Servicing Activities Pursuant to Section 50319, California Financial Code, pertaining to SCME, the Commissioner's Order Summarily Revoking Residential Mortgage Lender and/or Servicer License pertaining to SCME, and the Clerk's entry of default as to Deutsche in this case. (Req. for Judicial Notice Exs. A-C (Docket No. 153).) The unrelated complaint is not factually relevant to this action and the court declines to judicially notice it. The court does not need to judicially notice the entry of default to consider it. The court will judicially notice the Commissioner's orders since they are matters of public record whose accuracy cannot be questioned.*fn1

See Lee, 250 F.3d at 689.

A. TILA Damages Claim against Homecomings and Deutsche

The statute of limitations for a TILA damages claim is one year from the occurrence of a violation. 15 U.S.C. § 1640(e). The "limitations period in [s]section 1640(e) runs from the date of consummation of the transaction." King v. State of Cal., 784 F.2d 910, 915 (9th Cir. 1995). Here, the transaction was consummated in ...


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