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Jerry I. Anolik v. Bank of America Home Loans; et al

April 21, 2011


The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge


Through the present action, Plaintiff Jerry I. Anolik ("Plaintiff") challenges the validity of non-judicial foreclosure proceedings instituted following default on the Deed of Trust executed with respect to certain residential property located at 9132 Fair Oaks Boulevard in Fair Oaks, California. Defendants Bank of America Home Loans and Recontrust Company, N.A. ("Defendants") have moved to dismiss Plaintiff's complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6),*fn1 on numerous grounds.

Defendants' arguments include the assertion that because Plaintiff was not the borrower on the loan subject to the Deed of Trust, because Plaintiff never assumed the loan, and because foreclosure proceedings were instituted before Plaintiff recorded any alleged ownership interest in the property whatsoever, Plaintiff has no standing to take issue with the pending foreclosure. Defendants further argue that Plaintiff has not tendered the amounts owed under the loan in any event, and cannot proceed with the instant lawsuit for that reason as well. As set forth below, because the Court believes both those arguments to be dispositive, Defendants' motion will be granted.


The residential property at issue in this litigation initially belonged to Patrick Carboni. A Deed of Trust*fn2 was recorded on August 13, 2007 which reflected Mr. Carboni as the borrower under the Deed of Trust. The underlying loan was provided by Countrywide Home Loans, Inc. While Plaintiff contends he began to make payments on the loan beginning in November of 2008, when he claims to have "purchased" the property for the amount of $215,000 (which represented the principal amount of the Countrywide loan) Plaintiff's complaint does not allege that he ever formally assumed the obligations represented by the Countrywide loan. Indeed, Plaintiff's counsel conceded at the time of the April 7, 2011 hearing in this matter that Plaintiff never made any such assumption.

That omission is significant. The Deed of Trust makes it clear that the status of any purported successor in interest like Plaintiff had to be both in writing and be approved by the lender. Deed of Trust, ¶ 13, attached as Ex. A to Defs.' Request for Judicial Notice. It is undisputed their neither prerequisite occurred in this case. Moreover, while Plaintiff attempts to seize on the fact that Countrywide's loan portfolio, including the loan at issue herein, was later assumed by Bank of America, and while Plaintiff apparently contends that neither he nor Carboni ever assented to that transfer, any shortcoming in that regard cannot excuse Plaintiff's own failure to effectuate a proper assumption of the loan. Indeed, the Deed of Trust specifically permits the loan to be sold to another lending institution without prior notice to the Borrower. Id. at ¶ 20.

On August 14, 2009, Defendant Recontrust, as Trustee for Defendant Bank of America Home Loans, recorded a Notice of Default and Election to Sell Under Deed of Trust. That Notice of Default indicates a deficiency owed of $13,026.65 as of August 12, 2009. Notice of Default, p. 1, Ex. B to Defs' Request for Judicial Notice.

Although Plaintiff claims to have "purchased" the property in November of 2008, and while he claims to have made certain payments after that time, Plaintiff did not record any Grant Deed memorializing that transaction until December 1, 2009, more than a year later and well after the Notice of Default had been filed more than four months beforehand. Through the present lawsuit, Plaintiff takes issue with Defendants' foreclosure proceedings despite the fact that they were instituted before anyone was put on notice of his purported ownership interest in the property.


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 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 not contain "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." 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 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 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, it 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 part of the movant." Foman v. Davis, 371 U.S. 178, 182 (1962).

In fact, leave to amend is generally only denied when it is clear that the deficiencies of the complaint cannot possibly be cured by an amended version. See DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992); Balistieri v. Pacifica Police Dept., 901 F. 2d 696, 699 (9th Cir. 1990) ("A complaint should not be dismissed under Rule 12(b)(6) unless it appears beyond doubt that the plaintiff can prove ...

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