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Phillip Mcanelly v. Pnc Mortgage

June 7, 2011

PHILLIP MCANELLY,
PLAINTIFF,
v.
PNC MORTGAGE, A DIVISION OF PNC BANK, N.A., NATIONAL CITY MORTGAGE, A DIVISION OF NATIONAL CITY BANK, BANK OF AMERICA, CAL-WESTERN RECONVEYANCE CORPORATION, AND DOES 1-100, INCLUSIVE. DEFENDANTS.



The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

MEMORANDUM AND ORDER

Through this action, Plaintiff Phillip McAnelly ("Plaintiff") seeks redress from Defendants PNC Mortgage and National City Mortgage, Bank of America, and Cal-Western Reconveyance Corp. ("Defendants") based on alleged violations of the Home Ownership Equity Protection Act, the Real Estate Settlement Procedures Act, the Truth in Lending Act, the Fair Credit Reporting Act, and civil statutes of the Racketeer Influenced and Corrupt Organizations Act.

Plaintiff also seeks redress for multiple claims brought under California state law. Presently before the Court is a motion by Defendants PNC Mortgage and National City Mortgage (ECF No. 23), to dismiss Plaintiff's First Amended Complaint (ECF No. 21) for failure to state a claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6).*fn1 Also before the court is Defendants' Motion to Strike portions of Plaintiff's First Amended Complaint (ECF No. 24). Defendants' motions were filed on March 4, 2011. Plaintiffs filed a timely opposition to Defendants' Motion to Dismiss on April 7, 2011 (ECF No. 25). For the reasons set forth below, Defendants' Motion to Dismiss is granted and the Motion to Strike is denied as moot.*fn2

BACKGROUND*fn3

Plaintiff purchased a home and financed it though a loan obtained on or around September 1, 2006 from Defendant National City Mortgage. At some point, Plaintiff attempted, and failed, to obtain a loan modification. A Notice of Default was placed on the property in April 2010. In September 2010, Defendant Cal-Western Reconveyance Corp. filed a Notice of Trustee Sale.

STANDARD

On a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), all allegations of material fact must be accepted as true and construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336,337-38 (9th Cir. 1996). 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)). A complaint attacked by a Rule 12(b)(6) motion to dismiss does not require detailed factual allegations. However, "a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. (internal citations and quotations omitted). A court is not required to accept as true a "legal conclusion couched as a factual allegation." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009) (quoting Twombly, 550 U.S. at 555). "Factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555 (citing 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004) (stating that the pleading must contain something more than "a statement of facts that merely creates a suspicion [of] a legally cognizable right of action.")).

Furthermore, "Rule 8(a)(2). . . requires a showing, rather than a blanket assertion, of entitlement to relief." Twombly, 550 U.S. at 556 n.3 (internal citations and quotations omitted). Thus, "[w]ithout some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirements of providing not only 'fair notice' of the nature of the claim, but also 'grounds' on which the claim rests." Id. (citing 5 Charles Alan Wright & Arthur R. Miller, supra, at § 1202). A pleading must contain "only enough facts to state a claim to relief that is plausible on its face." Id. at 570. If the "plaintiffs . . . have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed." Id. However, "[a] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and 'that a recovery is very remote and unlikely.'" Id. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).

A court granting a motion to dismiss a complaint must then decide whether to grant leave to amend. Leave to amend should be "freely given" where there is no "undue delay, bad faith or dilatory motive on the part of the movant, . . . undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of the amendment . . . ." Foman v. Davis, 371 U.S. 178, 182 (1962); Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (listing the Foman factors as those to be considered when deciding whether to grant leave to amend).

Not all of these factors merit equal weight. Rather, "the consideration of prejudice to the opposing party . . . carries the greatest weight." Id. (citing DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 185 (9th Cir. 1987). Dismissal without leave to amend is proper only if it is clear that "the complaint could not be saved by any amendment." Intri-Plex Techs. v. Crest Group, Inc., 499 F.3d 1048, 1056 (9th Cir. 2007) (citing In re Daou Sys., Inc., 411 F.3d 1006, 1013 (9th Cir. 2005); Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989) ("Leave need not be granted where the amendment of the complaint . . . constitutes an exercise in futility . . . .")).

ANALYSIS

Plaintiff alleges violations of state and federal law and requests relief accordingly. The issue before the Court is not the substance of these various claims, but whether Plaintiffs have plead sufficient facts as a general matter. While the complaint does not need detailed factual allegations, it must still provide sufficient facts alleged under a cognizable legal theory. See supra.

A. Violation of HOEPA

Plaintiff's first cause of action alleges that Defendants violated the Home Owners Equity Protection Act ("HOEPA"). HOEPA is a section of the Truth in Lending Act which contains specific disclosure requirements and minimum standards for residential mortgage loans. 15 U.S.C. § 1639 (2006). Violations of the disclosure requirements by a creditor give rise to a cause of action. Id. § 1640. For a plaintiff to collect civil damages from a defendant who failed to provide the disclosures mandated by HOEPA, the statute of limitations requires the plaintiff to file suit within one year from the "date of occurrence" of the alleged violation. Id. § 1640(e). The "date of the occurrence" is the date the ...


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