FINDINGS AND RECOMMENDATIONS
This case, in which plaintiffs are proceeding pro se, is before the undersigned pursuant to Eastern District of California Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). This matter came on for hearing on April 27, 2011 on defendant's motion to dismiss. Plaintiffs appeared on their own behalf. Lauren Takos appeared on behalf of defendant. Upon review of the documents in support and opposition, and good cause appearing, for the reasons stated herein, the undersigned recommends that defendant's motion to dismiss be granted without leave to amend.
On January 3, 2011, plaintiffs filed a complaint against defendant.*fn1 The complaint does not set forth any specific causes of action but refers to the Truth in Lending Act ("TILA"). Dckt. No. 1. The complaint also cursorily references fraud and unfair and deceptive practices under 15 U.S.C. § 45. Dckt. No. 1. Defendant moves to dismiss the complaint. Dckt. No. 6. Plaintiffs have filed an opposition and a reply has been filed thereto. Dckt. Nos. 11, 15. On April 26, 2011, plaintiffs also filed a document titled "Motion to Strike and Response to Opposition of Defendant." Dckt. No. 17. In that document, plaintiffs do not move to strike any of defendant's pleadings but submit evidence regarding a loan modification. The court will accordingly construe plaintiffs' April 26, 2011 filing as an unauthorized sur-reply to the motion to dismiss. Although plaintiffs were not authorized to file a sur-reply, the court has considered the documentation submitted by plaintiffs in making the recommendation below.
In this action, plaintiffs assert claims related to a mortgage loan for real property located at 929 Bess Place, Stockton, California 95206 (the "subject property"). A mortgage loan in the amount of $336,000 was secured by a deed of trust encumbering the subject property. The loan was transacted on August 31, 2005. Defendant's Request for Judicial Notice ("Def.'s Req. Jud. Ntc."), Dckt. No. 10-1, Ex. 1.*fn2 The deed of trust identifies Finance America, LLC as the lender, Julia L. Greenfield, Esq. as the trustee, Mortgage Electronic Registration Systems, Inc. as the beneficiary, and plaintiffs as the borrower. Id. The beneficial interest was subsequently assigned to U.S. Bank National. Id., Ex. 6. A modification of the loan was subsequently entered into and signed by plaintiffs on November 27, 2009 and by Mortgage Electronic Registrations Systems, Inc., as nominee for the Lender Chase Home Finance, LLC. Dckt. No. 17, p. 30.
III. Motion to Dismiss A. Legal Standards
To survive dismissal for failure to state a claim pursuant to 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." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "The pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id. (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004)). "[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) (quoting Twombly, 550 U.S. 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." Id. Dismissal is appropriate based either on the lack of cognizable legal theories or the lack of pleading sufficient facts to support cognizable legal theories. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the party opposing the motion, and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S. 869 (1969). The court will "'presume that general allegations embrace those specific facts that are necessary to support the claim.'" Nat'l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 256 (1994) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)).
Pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972); Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985). However, the court's liberal interpretation of a pro se litigant's pleading may not supply essential elements of a claim that are not plead. Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992); Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Furthermore, "[t]he court is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged." Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994). Neither need the court accept unreasonable inferences, or unwarranted deductions of fact. W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
The court may consider facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider facts which may be judicially noticed, Mullis v. U.S. Bankr. Ct., 828 F.2d at 1388, and matters of public record, including pleadings, orders, and other papers filed with the court. Mack v. South Bay Beer Distribs., 798 F.2d 1279, 1282 (9th Cir. 1986).
A motion to dismiss pursuant to Rule 12(b)(6) may also challenge a complaint's compliance with Federal Rule of Civil Procedure 9(b) where fraud is an essential element of a claim. See Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1107 (9th Cir. 2003). Rule 9(b), which provides a heightened pleading standard, states: "In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally." Fed. R. Civ. P. 9(b). These circumstances include the "'time, place, and specific content of the false representations as well as the identities of the parties to the misrepresentations.'" Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir. 2007) (per curiam) (quoting Edwards v. Marin Park, Inc., 356 F.3d 1058, 1066 (9th Cir. 2004)); see also Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir. 2009) ("Averments of fraud must be accompanied by 'the who, what, when, where, and how' of the misconduct charged" (citation and quotation marks omitted).). "Rule 9(b) demands that the circumstances constituting the alleged fraud be specific enough to give defendants notice of the particular misconduct . . . so that they can defend against the charge and not just deny that they have done anything wrong." Kearns, 567 F.3d at 1124 (citing Bly-Magee v. California, 236 F.3d 1014, 1019 (9th Cir. 2001) (internal quotation marks omitted and modification in original).
A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity to amend, unless the complaint's deficiencies could not be cured by amendment. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).
Defendant contends any claim for damages under TILA is barred by the statute of limitations. Defendant also contends the complaint fails to state a rescission claim under TILA because the loan at issue is a purchase money loan and rescission is not an available remedy under the statute. Defendant further contends that no private right of action is conferred under 15 U.S.C. § 45 and that any ...