MEMORANDUM OPINION AND ORDER ON DEFENDANT'S MOTION TO DISMISS AND MOTION TO ORDERS
DOES I-XX, Doc. #'s 6 and 9
This is an action to quiet title, for violation of the Real Estate Settlement Procedures Act, 12 U.S.C. § 2605 ("RESPA"), and conspiracy to defraud by plaintiff Joseph Crawford Jones ("Plaintiff") against defendants Countrywide Homeloan, Wells Fargo Bank, N.A., Home Equity Loan Trust, Bank of America, and Does I-XX (collectively, "Defendants"). In the instant motion Defendants seek dismissal of Plaintiff's Fourth Amended Complaint ("4AC"). This action, which was originally filed in Kern County Superior Court, was removed to this court on March 9, 2011. Federal subject matter jurisdiction exists pursuant to 28 U.S.C. § 1331. Venue is proper in this court.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff's 4AC is short on facts. At issue in this action is property located in Bakersfield, California (the "Property"). Plaintiff alleges that on or about January 20, 2005, he entered into a mortgage agreement with Weyerhaeuser Mortgage Company to purchase the Property. At some point in 2007, Plaintiff alleges Weyerhaeuser ceased to exist and the mortgage was assigned to Defendant Countrywide. Plaintiff alleges he tried to obtain loan modification from Countrywide beginning in October 2007; that is, about the same time as the rates on his adjustable-interest mortgage were subject to increase. Loan modification was not forthcoming. Plaintiff alleges that Defendant Countrywide foreclosed on the Property sometime in 2008.
Plaintiff's first claim for relief is a claim to quiet title as against Defendant Countrywide. There appear to be two possible grounds. First, Plaintiff alleges Defendants wrongfully foreclosed on the Property "after inducing [Plaintiff] to dismiss his bankruptcy petition." Doc. # 1-5 at 129:19-21. Second, Plaintiff alleges that Defendant Countrywide "made a deliberate and affirmative decision to deprive [Plaintiff] of critical information relating to his mortgage, namely, that Countrywide was acting as proxy for Bank of America and Wells Fargo and as such, Countrywide did not have the capacity to foreclose on the subject mortgage." Doc. # 1-5 at 159:26-160:5.
Plaintiff's second claim for relief alleges that "sometime around [September 17, 2007]" Plaintiff submitted a Qualified Written Request to Countrywide consistent with 12 U.S.C. section 2605, which state in relevant part, that Countrywide had to acknowledge the request within 20 business days and must try to resolve the issue within 60 business days." Doc. # 1-5 at 132:1-10. Countrywide did not respond.
Plaintiff's third claim for relief seeks to quiet title as to any claim by Defendant Wells Fargo, N.A. on the Property. Plaintiff's claim is based on the theory that Wells Fargo, who evidently purchased the Property at the foreclosure sale, was not "a bona fide purchaser for value" because Wells Fargo had notice of Plaintiff's asserted rights in the Property.
Plaintiff's fourth and final claim for relief alleges conspiracy to defraud against Defendants Wells Fargo and Countrywide. The court has reviewed Plaintiff's claim for conspiracy and can find no factual allegations beyond the conclusory allegation that "Defendants, and each of them, conspired to participate in a fraudulent scheme to foreclose on Plaintiff's residence." Doc. # 1-5 at 136:13-15. Apparently, the claim of fraud is based primarily on the allegation that Defendants agreed to not protect Plaintiff from the wrongful foreclosure of his Property. No other factual allegations can be drawn from the 4AC.
Defendants' memorandum in support of their motion to dismiss references a number of facts not evident in the complaint that are supported by documents of which the court may take judicial notice. The court will identify those documents where they are used to establish facts alleged by Defendants in their motion to dismiss. Defendants allege, and provide filed documents to show, that Plaintiff executed two mortgages on January 20, 2005, both with Weyerhaeuser Mortgage Corp. One was in the amount of $244,000 and the other was in the amount of $61,000. Both loans were transferred to Defendant Countrywide Home Loans prior to October 2007 and both were secured by deeds of trust on the Property. Defendants allege that Defendant stopped making payments on his loans and was in arrears by an amount greater than $18,000 as of January 2008. A notice of default was recorded in the Kern County Official Records on January 28, 2008.
Plaintiff failed to cure the default on the loans and a Notice of Trustee's Sale was recorded on May 5, 2008, noting a total balance due of $386,581.78 on both loans. On September 30, 2008, the Property was sold to Wells Fargo bank for $179,633. As of the time of the trustee's sale, bankruptcy proceedings were pending pursuant to a petition that had been filed on July 16, 2008. The July 16 bankruptcy petition was apparently the fourth that Plaintiff had filed since 2001. The bankruptcy proceedings on the July 16 petition did not close until May 8, 2009. Plaintiff has not make any payments on his loan since July 31, 2007.
This action was originally filed in Kern County Superior Court on November 19, 2009. All previous amendments were made while the action was still in the Superior Court.
The action was removed to this court under federal question jurisdiction upon filing of the 4AC on February 11, 2011. The instant motion to dismiss was filed on March 16, 2011. As of the date of this writing, no opposition has been filed by Plaintiff. The court notes that appropriate proof of service of Defendants' motion to dismiss has been filed. A motion to strike certain portions of Plaintiff's 4AC was filed on the same date as the motion to dismiss. No opposition to the motion to strike has been received either.
A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure can be based on the failure to allege a cognizable legal theory or the failure to allege sufficient facts under a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir.1984). To withstand a motion to dismiss pursuant to Rule 12(b)(6), a complaint must set forth factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) ("Twombly"). While a court considering a motion to dismiss must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), and must construe the pleading in the light most favorable to the party opposing the motion, and resolve factual disputes in the pleader's favor, Jenkins v. McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S. 869 (1969), the allegations must be factual in nature. See Twombly, 550 U.S. at 555 ("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"). The pleading standard set by Rule 8 of the Federal Rules of Civil Procedure "does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) ("Iqbal").
The Ninth Circuit follows the methodological approach set forth in Iqbal for the assessment of a plaintiff's complaint:
"[A] court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume ...