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Jorge Torres v. Litton Loan Servicing Lp

April 12, 2011

JORGE TORRES,
PLAINTIFF,
v.
LITTON LOAN SERVICING LP, DEFENDANTS.



The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

MEMORANDUM DECISION REGARDING FIRST AMENDED COMPLAINT DEFENDANTS MOTION TO DISMISS

(Doc. 19)

I. INTRODUCTION.

Plaintiff Jorge Torres ("Plaintiff") brings this action for damages against Litton Loan Servicing LP. Plaintiff filed a first amended complaint ("FAC") on February 2, 2011. (Doc. 16).

Defendant filed a motion to dismiss Plaintiff's complaint on February 14, 2011. (Doc. 19).

Plaintiff did not file timely opposition to Defendant's motion. Local Rule 230(c) requires opposition to be filed no less than fourteen days preceding the noticed hearing date. E.D. Cal. R. 230(b).

II. FACTUAL BACKGROUND.

Defendant is engaged in "mortgage activities." On June 10, 2009, Plaintiff entered into a "Trial Loan Modification Plan" with Defendant ("the Plan"). Pursuant to the Plan, Plaintiff was required to make three trial payments; Plaintiff made nine payments.

On June 16, 2010, Plaintiff received another solicitation from Defendant for a loan modification plan. On June 22, 2010, Plaintiff spoke with Defendant and was assured that his loan modification would be processed and reviewed. On June 26, 2010, Plaintiff resent the paperwork to Defendant for the loan modification.*fn1 (Id.).

On or about June 29, 2010, Defendant conducted a trustee sale on Plaintiff's property. (Id.).

III. LEGAL STANDARD.

Dismissal under Rule 12(b)(6) is appropriate where the complaint lacks sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.1990). To sufficiently state a claim to relief and survive a 12(b) (6) motion, the pleading "does not need detailed factual allegations" but the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Mere "labels and conclusions" or a "formulaic recitation of the elements of a cause of action will not do." Id. Rather, there must be "enough facts to state a claim to relief that is plausible on its face." Id. at 570. In other words, the "complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, --- U.S. ----, ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted).

The Ninth Circuit has summarized the governing standard, in light of Twombly and Iqbal, as follows: "In sum, for a complaint to survive a motion to dismiss, the nonconclusory factual content, and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir.2009) (internal quotation marks omitted). Apart from factual insufficiency, a complaint is also subject to dismissal under Rule 12(b)(6) where it lacks a cognizable legal theory, Balistreri, 901 F.2d at 699, or where the allegations on their face "show that relief is barred" for some legal reason, Jones v. Bock, 549 U.S. 199, 215, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007).

In deciding whether to grant a motion to dismiss, the court must accept as true all "well-pleaded factual allegations" in the pleading under attack. Iqbal, 129 S.Ct. at 1950. A court is not, however, "required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001). "When ruling on a Rule 12(b)(6) motion to dismiss, if a district court considers evidence outside the pleadings, it must normally convert the 12(b)(6) motion into a Rule 56 motion for summary judgment, and it must give the nonmoving party an opportunity to respond." United States v. Ritchie, 342 F.3d 903, 907 (9th Cir.2003). "A court may, however, consider certain materials-documents ...


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