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Robert Perry, et al v. Jp Morgan Chase Bank

June 6, 2011

ROBERT PERRY, ET AL.,
PLAINTIFFS,
v.
JP MORGAN CHASE BANK, N.A., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Plaintiffs, proceeding in this action in propria persona, bring this civil action related to the foreclosure of their property. This action was removed to this court from the Shasta County Superior Court on January 24, 2011. Pending before the court is defendants' motion to dismiss (Doc. 6). The hearing on the motion was taken off calendar pursuant to Local Rule 230(g) as the opposition was not filed within the time provided.*fn1

I. Background

This foreclosure action was removed from state court to this court on January 24, 2011, by defendants. The complaint alleges claims of wrongful foreclosure, fraudulent misrepresentation, quiet title, usury and fraud, and civil RICO violations. Defendants move to dismiss for failure to state a claim in regard to all claims, for failure to specifically plead fraud, that claims are untimely and barred by the applicable statutes of limitations, and that JP Morgan did not assume the liability for those claims related to the loan agreement between the borrowers and Washington Mutual Bank.

Plaintiffs allege in their complaint, and submit exhibits showing, they entered into a promissory note with Washington Mutual on or about June 20, 2007, which was secured by a deed of trust. The deed of trust was recorded on June 25, 2007 in Shasta County. On or about August 10, 2010, a notice of default was recorded in the Shasta County Recorder's Office. Plaintiffs further acknowledge in the complaint that Washington Mutual was "taken over and closed by the Office of Thrift Supervision and the FDIC" on or about September 25, 2008, and that JPMorgan Chase is the successor in interest of Washington Mutual. (Complaint at 5-6.)

II. Motion to Dismiss

Defendants filed the motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(6). Defendants argue plaintiffs fail to allege facts sufficient to state a claim, and are vague, ambiguous, and untimely. In plaintiffs' untimely response to the motion, they fail to dispute any of defendants' arguments. Instead, they rely on the complaint as plead, and ask for leave to amend if the court finds the complaint insufficient.

A. Legal Standards

In considering a motion to dismiss, the court must accept all allegations of material fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The court must also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All ambiguities or doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). However, legally conclusory statements, not supported by actual factual allegations, need not be accepted. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009). In addition, pro se pleadings are held to a less stringent standard than those drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972).

Rule 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief" in order 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) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order to survive dismissal for failure to state a claim under Rule 12(b)(6), a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Id. at 555-56. The complaint must contain "enough facts to state a claim to relief that is plausible on its face." Id. 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." Iqbal, 129 S. Ct. at 1949. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Bell Atl. Corp., 550 U.S. at 556). "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility for entitlement to relief." Id. (quoting Bell Atl. Corp., 550 U.S. at 557).

To determine whether a complaint states a claim upon which relief can be granted, the court generally may not consider materials outside the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998); Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The court may, however, consider: (1) documents whose contents are alleged in or attached to the complaint and whose authenticity no party questions, see Branch, 14 F.3d at 454;(2) documents whose authenticity is not in question, and upon which the complaint necessarily relies, but which are not attached to the complaint, see Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials of which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994).

Finally, leave to amend must be granted "[u]nless it is absolutely clear that no amendment can cure the defects." Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam); see also Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc).

B. Discussion

1. Assumption of Liability by ...


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