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Barbara Lofgren v. National City Mortgage Inc.

May 5, 2011

BARBARA LOFGREN,
PLAINTIFF,
v.
NATIONAL CITY MORTGAGE INC., ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Hon. Dana M. SABRAWUnited States District Judge

ORDER GRANTING DEFENDANT PNC BANK, NATIONAL ASSOCIATION'S MOTION TO DISMISS [Docket Nos. 22, 23]

This case comes before the Court on Defendant PNC Bank, National Association's motion to dismiss Plaintiff's First Amended Complaint. Plaintiff filed an opposition to the motion, and Defendant filed a reply. For the reasons discussed below, the Court grants the motion.*fn1

I. BACKGROUND

On April 23, 2003, Plaintiff Barbara Lofgren obtained a loan from Defendant National City Mortgage, Inc. ("National") to purchase the property located at 807 Glenwood Way in Escondido, California. (First Am. Compl. ("FAC") ¶¶ 7-10.)*fn2 As a condition of the loan, Plaintiff granted National a deed of trust in the property. (Id. ¶ 10.)

On August 13, 2008, National substituted Defendant Cal Western Reconveyance Corporation ("Cal Western") as trustee on the deed of trust. (FAC., Ex. C.) The following day, Cal Western filed a Notice of Default on Plaintiff's property. (FAC, Ex. B.)

On November 19, 2008, Cal Western filed a Notice of Trustee's Sale on Plaintiff's property. (FAC, Ex. E.) Pursuant to that Notice, the sale was scheduled for December 8, 2008. (Id.) The sale eventually occurred on June 17, 2009. (FAC, Ex. G.) At the sale, the property was sold to Defendant Federal Home Loan Mortgage Corporation ("Federal"). (Id.)

Plaintiff alleges none of the Defendants had the right to foreclose upon her property. (FAC ¶¶ 16-18.) She also alleges she obtained a modification of her loan, which also makes the foreclosure sale void. (Id. ¶ 14.)

On June 23, 2010, Plaintiff filed the present case in San Diego Superior Court alleging one claim for declaratory relief/wrongful foreclosure. Defendant Federal removed the case to this Court on August 6, 2010. Defendants PNC and Federal each filed a motion to dismiss the Complaint. The Court granted Defendant PNC's motion to dismiss, denied Defendant Federal's motion to dismiss as moot and granted Plaintiff leave to file a First Amended Complaint, which she did. Plaintiff's First Amended Complaint alleges claims for breach of contract, fraud and conversion.

II. DISCUSSION

Defendant PNC moves to dismiss Plaintiff's breach of contract and fraud claims. Defendant argues Plaintiff has failed to plead the necessary elements of each of those claims, and Plaintiff has failed to satisfy the heightened pleading standards for her fraud claim.

A. Standard of Review

In two recent opinions, the Supreme Court established a more stringent standard of review for 12(b)(6) motions. See Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). To survive a motion to dismiss under this new standard, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556).

"Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950 (citing Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007)). In Iqbal, the Court began this task "by identifying the allegations in the complaint that are not entitled to the assumption of truth." Id. at 1951. It then considered "the factual ...


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