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William Allen Smith, An Individual v. National City Mortgage

May 11, 2011

WILLIAM ALLEN SMITH, AN INDIVIDUAL, PLAINTIFF,
v.
NATIONAL CITY MORTGAGE, A BUSINESS ENTITY; UNITED LENDERS GROUP, A BUSINESS ENTITY; JEFF MOORE, AN INDIVIDUAL; KONDAUR CAPITAL CORPORATION, A BUSINESS ENTITY; AND DOES I THROUGH 100, INCLUSIVE, DEFENDANTS.



ORDER GRANTING DEFENDANT PNC‟s , MOTION TO DISMISS THE SECOND,THIRD, SIXTH, AND EIGTH CLAIMS IN PLAINTIFF‟S SECOND AMENDED COMPLAINT

This matter comes before the Court on Defendant PNC Bank, National Association‟s ("PNC") Motion to Dismiss (Doc. #34) the second, third, sixth, and eighth claims in the Second Amended Complaint ("SAC," Doc. #33) filed by Plaintiff William Allen Smith ("Plaintiff"). Plaintiff opposes the motion.*fn1

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff alleges that Defendants National City Mortgage,*fn2 United Lenders Group ("United"), Jeff Moore ("Moore"), and Kondaur Capital Corporation ("Kondaur") fraudulently conspired 5 to induce him into an usurious loan for their financial gain and 6 that his right to cancel the loan agreement was improperly 7 reneged by PNC.

Plaintiff filed his Complaint (Doc. #1) on February 11, 2010 and PNC filed a Motion to Dismiss on May 7, 2010 (Doc. #5). Plaintiff then submitted an untimely First Amended Complaint ("FAC," Doc. #13) on July 26, 2010, which the Court allowed to be the operative pleading. PNC filed a Motion to Dismiss the FAC on August 9, 2010 (Doc. #16). On December 30, 2010, the Court issued an Order Granting in Part and Denying in Part PNC‟s Motion to Dismiss and Motion to Strike Portions of the FAC ("Order," Doc. #32). The Court denied PNC‟s Motion to Dismiss Claim 1, alleging fraud; gave Plaintiff leave to amend Claim 7, 8 alleging unjust enrichment; and granted PNC‟s Motion to Dismiss all other claims with prejudice.

In the SAC, Plaintiff alleges eight causes of action:

(1) Fraud; (2) Breach of Contract; (3) Breach of Covenant of Good Faith and Fair Dealing; (4) Breach of Fiduciary Duty; (5) Negligence; (6) Unjust Enrichment; (7) Accounting; and (8) Violation of Business and Professions Code § 17200. PNC moves to dismiss Claims 2, 3, 6, and 8.

II. OPINION

A. Legal Standard

1. Motion to Dismiss

A party may move to dismiss an action for failure to state 5 a claim upon which relief can be granted pursuant to Federal Rules of Civil Procedure section 12(b)(6). In considering a 7 motion to dismiss, the court must accept the allegations in the 8 complaint as true and draw all reasonable inferences in favor of 9 the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1975), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322 (1972). Assertions that are mere "legal conclusions," however, are not entitled to the assumption of truth. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009), citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). To survive a motion to dismiss, a plaintiff needs to plead "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. Dismissal is 8 appropriate where the plaintiff fails to state a claim supportable by a cognizable legal theory. Balistreri v. Pacifica Police Department, 901 F.2d 696, 699 (9th Cir. 1990).

Upon granting a motion to dismiss for failure to state a claim, the court has discretion to allow leave to amend the complaint pursuant to Federal Rules of Civil Procedure § 15(a). "Dismissal with prejudice and without leave to amend is not appropriate unless it is clear . . . that the complaint could not be saved by amendment." Eminence Capital, L.L.C. v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).

B. Judicial Notice 2

PNC requests that the Court take judicial notice of the Verified Complaint with exhibits for Fraud and Fraud in the Inducement, Negligence, Imposition of a Resulting and/or Constructive Trust and Request for Temporary Restraining Order and/or Preliminary Injunction, filed on May 27, 2009 in Sacramento County Superior Court, Case No. 34-2009-00045029 (PNC‟s Req. for Judicial Notice, Exh. 1, Doc. #35-1). PNC also requests judicial notice of the Notice of Default, Election to Sell Under Deed of Trust, Notice of Trustee‟s Sale, and Trustee‟s Deed upon sale (PNC‟s Req. for Judicial Notice, Exhs. 2, 3, & 4) (Doc. #35-1). Plaintiff does not object to PNC‟s request.

It is appropriate to take judicial notice of court filings and other matters of public record such as pleadings in related litigation. See Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n. 6 (9th Cir. 2006). Additionally, courts may 8 consider extrinsic evidence when "plaintiff's claim depends on the contents of a document, the defendant attaches the document to its motion to dismiss, and the parties do not dispute the authenticity of the document. . . ." Knievel ...


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