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Zaki Hussein v. Wells Fargo Bank

June 4, 2011

ZAKI HUSSEIN, PLAINTIFF,
v.
WELLS FARGO BANK, ET AL., DEFENDANTS.



FINDINGS AND RECOMMENDATIONS

On April 15, 2011, this action was removed from the Sacramento County Superior Court. Plaintiff, proceeding pro se, filed a complaint alleging claims under the Truth in Lending Act ("TILA"), 12 U.S.C. § 1635, the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2607, California Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code § 17200, fraud, and quiet title. The case was referred to the undersigned pursuant to Local Rule 302(c)(21).

On April 22, 2011, defendants filed a motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(6) on the grounds that plaintiff's complaint fails to state any legally cognizable claim upon which relief may be granted. The record reflects that defendant's motion was properly served on the pro se plaintiff. On May 27, 2011, the case came before the court for hearing on defendants' properly noticed motion. Kimberly Paese, Esq. appeared for the defendants. No appearance was made by or on behalf of plaintiff.

Upon consideration of all written materials filed in connection with the motion and the entire file, the undersigned recommends that defendants' motion to dismiss be granted.

LEGAL STANDARDS APPLICABLE TO MOTIONS TO DISMISS

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, 570 (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). In general, pro se complaints are held to less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, the court need not assume the truth of legal conclusions cast in the form of factual allegations. W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). The court is permitted to consider material which is properly submitted as part of the complaint, documents not physically attached to the complaint if their authenticity is not contested and the plaintiff's 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).

Although the Federal Rules of Civil Procedure adopt a flexible pleading policy, a complaint must give the defendant fair notice of the plaintiff's claims and must allege facts that state the elements of each claim plainly and succinctly. Fed. R. Civ. P. 8(a)(2); Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). The plaintiff must allege with at least some degree of particularity overt acts which the defendants engaged in that support the plaintiff's claims. 733 F.2d at 649. A complaint must also contain "a short and plain statement of the grounds for the court's jurisdiction" and "a demand for the relief sought." Fed. R. Civ. P. 8(a)(1) & 8(a)(3).

PLAINTIFF'S COMPLAINT AND MOTION TO REMAND

Plaintiff alleges claims under the Truth in Lending Act ("TILA"), 12 U.S.C. § 1635, the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2607, California Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code § 17200, fraud, and quiet title. Plaintiff also filed a motion to remand, contending removal was improper. (Doc. No. 15.) However, plaintiff's complaint plainly references RESPA and TILA; removal under federal question was therefore proper and plaintiff's motion to remand should be denied.

PLAINTIFF'S FAILURE TO OPPOSE DEFENDANT'S MOTION

Defendants filed their motion to dismiss on April 22, 2011. Plaintiff did not file timely written opposition to the motion, did not appear at the hearing on the motion held on May 27, 2011, and did not file any opposition after the hearing. Plaintiff's failure to appear at the properly noticed hearing on defendant's motion may, in the discretion of the court, be deemed a statement of no opposition to the granting of the motions. See Local Rule 230(i). An inference of non-opposition in the present case is supported by plaintiff's failure to file written opposition and failure to appear at the hearing. See Local Rule 230(c) ("No party will be entitled to be heard in opposition to a motion at oral arguments if opposition to the motion has not been timely filed by that party.").

ANALYSIS

The undersigned finds that plaintiff's failure to file written opposition and failure to appear at the hearings on defendants' motion to dismiss, considered together with plaintiff's failure to participate in this action since its initiation other than the filing of a brief motion for remand, should be deemed a statement of no opposition to the granting of defendants' motion. Nonetheless, in light of plaintiff's pro se status, the undersigned has reviewed defendants' arguments and addresses them below.

Defendants have requested judicial notice of documents related to the matters at issue. (Doc. No. 13.) Defendants' request for judicial notice will be granted pursuant to Federal Rule of Evidence 201. See Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001) (on a motion to dismiss, court may consider matters of public record); MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir.1986) (on a ...


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