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Anthony Guebara v. Saxon Mortgage

May 2, 2011

ANTHONY GUEBARA, PLAINTIFF,
v.
SAXON MORTGAGE, ET AL., DEFENDANTS.



FINDINGS & RECOMMENDATIONS

On April 28, 2011, the court held a hearing on defendant Saxon Mortgage's ("Saxon's") motion to dismiss. Plaintiff appear in pro per. Joshua M. Bryan appeared for Saxon. Upon review of the motion and the documents in support and opposition, and good cause appearing therefor, THE COURT MAKES THE FOLLOWING FINDINGS:

FACTUAL AND PROCEDURAL BACKGROUND

On August 8, 2006, plaintiff obtained a mortgage secured by real property located in Stockton, CA ("the Property"). It is unclear from which entity plaintiff obtained the mortgage: he initially alleges that he obtained it from Saxon, see Compl.¶ 7, but later alleges that he obtained it through Decision One Mortgage (not a defendant in this action), id. ¶ 32. Liberally construed (and partially based on statements contained in plaintiff's opposition), it appears that plaintiff obtained a mortgage through Decision One Mortgage and attempted to obtain a loan modification through Saxon. Plaintiff does not state the time period during which he attempted to obtain a loan modification.

On March 24, 2009, plaintiff received a notice of default and notice of intent to foreclosure.

On September 17, 2010, plaintiff filed a complaint in the San Joaquin County Superior Court against Saxon, Quality Loan Service and Doe Defendants I-X for (1) declaratory relief; (2) injunctive relief; (3) damages under the Truth in Lending Act ("TILA"), 15 U.S.C. §§ 1601 et seq., and the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. §§ 2601 et seq.; (3) reformation of contract; (4) quiet title; and, alternatively, (5) to set aside wrongful foreclosure proceedings.

Plaintiff's complaint is premised on claims of securities fraud. He alleges that his because his mortgage has been illegally bundled, sold and resold by defendants numerous times, none of the defendants own the title to the Property and, as such, none have the legal right to initiate foreclosure proceedings on the Property.

On February 15, 2011, Saxon removed this action in light of plaintiff's TILA and RESPA claims. On February 22, 2011, Saxon filed a motion to dismiss and a motion to strike. On March 29, 2011, plaintiff filed an opposition to both motions. Saxon has not filed a reply.

STANDARDS

The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal sufficiency of the complaint. N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). "Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1974 (2007). Thus, a defendant's Rule 12(b)(6) motion challenges the court's ability to grant any relief on the plaintiff's claims, even if the plaintiff's allegations are true.

In determining whether a complaint states a claim on which relief may be granted, the court accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989).

The court is permitted to consider material properly submitted as part of the complaint, documents not physically attached to the complaint if their authenticity is not contested and the complaint necessarily relies on them, and matters of public record. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001). Matters of public record include pleadings and other papers filed with a court. Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986). The court need not accept as true conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

DISCUSSION

Saxon seeks dismissal of plaintiff's complaint on numerous grounds. The court, however, will address only those arguments as they relate to plaintiff's federal claims brought pursuant to TILA, 15 U.S.C. §§ 1601 et seq., and RESPA, 12 U.S.C. §§ 2601 et seq. Saxon argues that plaintiff's TILA claim is barred by the statute of limitations. Saxon also argues that plaintiff's RESPA claim ...


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