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Helen Segura v. Green Tree Servicing

June 16, 2011



(Doc. Nos. 8, 11)

This case arises from a defaulted loan that resulted in a trustee's sale of real property. Plaintiff Helen Segura ("Segura") originally filed suit against Defendants Green Tree Servicing, LLC ("Green Tree") and Kondaur Capital Corp. ("Kondaur") in the Fresno County Superior Court. Upon filing a Second Amended Complaint ("SAC") that alleged for the first time a violation of a federal statute, Defendants removed to this Court. The SAC alleges nine causes of action (but are numbered as causes of action 14 through 22) -- declaratory relief, fraud, 12 U.S.C. § 2607(b) ("RESPA"), quiet title, California Business and Professionals Code § 17200 ("UCL"), California Civil Code §§ 1572 (fraud), 1788.17 (the Rosenthal Fair Debt Collection Practices Act ("RFDCPA")), and 2923.6, and injunctive relief. Defendants move to dismiss the SAC. Segura is proceeding pro se, and she filed no opposition. For the reasons that follow, the motions to dismiss will be granted.


Segura owned property located at 2577 Purvis Ave. in Clovis, California ("the Property"). On December 20, 2006, Segura obtained a $230,000 mortgage loan from At Home Capital ("AHC") to refinance an existing mortgage loan. Request for Judicial Notice ("RJN") Ex. A.*fn1 In exchange for the loan, Segura executed a promissory note and a deed of trust. See id. The deed of trust identifies Segura as the borrower, AHC as the lender, First American Title Company as the trustee, and Mortgage Electronic Registration System ("MERS") as the beneficiary. See id.

By October 2009, Segura had defaulted on the loan, and a notice of default was recorded in the Fresno County Recorder's office. See id. at Ex. B. The notice of default indicates that Segura's default was in the amount of $17,696.92.

On November 30, 2009, Segura received notice that Kondaur would be the new servicer of her mortgage. See id. at Ex. G.

On January 21, 2010, an assignment of mortgage, dated December 3, 2009, was recorded in the Fresno County Recorder's office. See id. at Ex. C. The assignment stated that MERS had assigned and transferred it rights under the deed of trust to Kondaur. See id.

On March 30, 2010, a substitution of trustee dated January 8, 2010, was filed in the Fresno County Recorder's Office. See id. at Ex. D. The substitution states that Kondaur had substituted Seaside Trustee, Inc. as trustee of the deed of trust. See id. Also on March 30, 2010, because Segura had not cured her default, a notice of trustee's sale was recorded in the Fresno County Recorder's office. See id. at Ex. E.

On April 22, 2010, Kondaur purchased the Property at a trustee's sale for $190,000. See id. at Ex. F.

On April 20, 2010, Segura filed suit against Defendants in the Fresno County Superior Court. See Notice of Removal Ex. A. Following the sustaining of demurrers, Segura filed the SAC on March 21, 2011. See id. Defendants removed to this Court on April 20, 2011, and now move to dismiss the SAC. As stated above, Segura filed no opposition.


Under Federal Rule of Civil Procedure 12(b)(6), a claim may be dismissed because of the plaintiff's "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A dismissal under Rule 12(b)(6) may be based on the lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable legal theory. Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 2008); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In reviewing a complaint under Rule 12(b)(6), all allegations of material fact are taken as true and construed in the light most favorable to the non-moving party. Marceau v. Blackfeet Hous. Auth., 540 F.3d 916, 919 (9th Cir. 2008); Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir. 1999). However, the Court is not required "to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1056-57 (9th Cir. 2008); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). To "avoid a Rule 12(b)(6) dismissal, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009); see Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949. That is, "for a complaint to survive a motion to dismiss, the non-conclusory 'factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. United States Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). In deciding whether to dismiss a claim under Rule 12(b)(6), the Court is generally limited to reviewing only the complaint, but it may take judicial notice of public records outside the pleadings, review materials which are properly submitted as part of the complaint, and review documents that are incorporated by reference in the Complaint if no party questions their authenticity. See Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005). If a Rule 12(b)(6) motion is granted, "[the] district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc). In other words, leave to amend need not be granted where amendment would be futile. Gompper v. VISX, Inc., 298 F.3d 893, 898 (9th Cir. 2002).


I. Cause of Action Fourteen -- Declaratory Relief

"Declaratory relief operates prospectively to declare future rights, rather than to redress past wrongs." Lai v. Quality Loan Serv. Corp., 2010 U.S. Dist. LEXIS 97121, *8 (C.D. Cal. Aug. 26, 2010); Canova v. Trustees of Imperial Irrigation Dist. Employee Pension Plan, 150 Cal.App.4th 1487, 1497 (2007). Declaratory relief should not be used as a superfluous or second cause of action to determine issues that are identical and subsumed within existing causes of action. See Jensen v. Quality Loan Serv. Corp., 702 F.Supp.2d 1183, 1189 (E.D. Cal. 2010). Here, Segura relies entirely on past wrongs that appear to be subsumed by the causes of action in the SAC. Thus, dismissal of this claim without leave to amend is appropriate.

II. Cause of Action Nineteen -- California Civil Code § 2923.6

Defendants contend that dismissal of this cause of action is appropriate because there is no cause of action created by § 2923.6. Defendants are correct. California Civil Code § 2923.6 does not create a private right of action. Clark v. Countrywide Home Loans, Inc., 732 F.Supp.2d 1038, 1046-47 (E.D. Cal. 2010); Pantoja v. Countrywide Home Loans, Inc., 640 F.Supp.2d 1177, 1188 (N.D. Cal. 2009); Farner v. Countrywide Home Loans, Inc., ...

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