The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
ORDER RE MOTION TO DISMISS COMPLAINT (DOC. 4)
This federal question action is before the court on Defendants‟, GMAC Mortgage‟s ("GMAC") and Federal National Mortgage Association‟s, ("Fannie Mae") ( "Defendants") motion to dismiss Plaintiff, Williams R. Schuck‟s ("Plaintiff") complaint pursuant to Federal Rule of Civil Procedure ("FRCP") 12(b)(6).
Plaintiff is the owner of the real property located at 272 Shepard Lane, Bishop, California 93514 (the "Property"). (Compl. at ¶ 6.) In March 2006, Plaintiff obtained a loan from Homecomings Financial Network, Inc. ("Homecomings") in the amount of $278,000 (the "Loan"). (Doc. 5, Defendants‟ Request for Judicial Notice ["RJN"], Ex. A.) On July 24, 2006, an Assignment of Deed of Trust was executed which assigned interest in the Deed of Trust to GMAC as beneficiary. (RJN, Ex. B). The Assignment of Deed of Trust was recorded with the Inyo County Recorder‟s Office on August 21, 2006. (Id.) On July 23, 2010, A Notice of Trustee‟s Sale was recorded with the Inyo County Recorder‟s Office. (RJN, Ex. E.) On August 22, 2010, a Notice of Default was recorded with the Inyo County Recorder‟s Office. (RJN, Ex. D.) A foreclosure sale was held on February 8, 2011, and Fannie Mae became the record title owner of the Property. (RJN, Ex.F.)
Plaintiff alleges the following claims: (1) Slander of Title and Quiet Title; (2) Fraud; (3) Negligent Misrepresentation; (4) "Bad Faith;" (5) Wrongful Foreclosure; (6) Violation of 15 USC § 1692f; and (7) Violation of 12 USC §2605(e)(1)(A). (Compl. ¶¶ 12-101.) Plaintiff seeks a declaration that the Trustee‟s sale of the Property is null and void; a permanent injunction barring Defendants from conducting a Trustee‟s sale of the Property; and damages. (Compl. ¶ 1-9.)
A motion to dismiss brought under Federal Rule of Civil Procedure 12(b)(6) "tests the legal sufficiency of a claim." Navarro v. Block, 250 F.3d 729, 732 (9th Cir.2001). In deciding whether to grant a motion to dismiss, the court "accept[s] all factual allegations of the complaint as true and draw[s] all reasonable inferences" in the light most favorable to the nonmoving party. Rodriguez v. Panayiotou, 314 F.3d 979, 983 (9th Cir.2002). To survive a motion to dismiss, 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, 173 L. Ed. 2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
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. The plausibility standard "is not akin to a "probability requirement,‟ but it asks for more than a sheer possibility that defendant has acted unlawfully. Where a complaint pleads facts that are "merely consistent with‟ a defendant‟s liability, it "stops short of the line between possibility and plausibility of entitlement to relief.‟" Id. (citing Twombly, 550 U.S. 556-57).
Nevertheless, the court "need not assume the truth of legal conclusions cast in the form of factual allegations." United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). While the standard does not require detailed factual allegations, "it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation." Iqbal, 129 S. Ct. at 1949. A pleading is insufficient if it offers mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555; Iqbal, 129 S. Ct. at 1950 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.").
In ruling upon a motion to dismiss, the court may consider only the complaint, any exhibits thereto, and matters which may be judicially noticed pursuant to Federal Rule of Evidence 201. See Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988).
As an initial matter, Defendants assert that, as best can be construed, Plaintiff is seeking to set aside the completed foreclosure sale; however, a plaintiff cannot set aside a foreclosure sale without pleading tender or the ability to offer tender. Karlsen v. Am. Savings & Loan Ass'n, 15 Cal.App.3d 112, 117, 92 Cal.Rptr. 851 (1971) (citing Copsey v. Sacramento Bank, 133 Cal. 659, 662 (1901)). The overwhelming majority of California district courts utilize the Karlsen rationale in examining wrongful foreclosure claims. Anaya v. Advisors Lending Group, 2009 U.S. Dist. LEXIS 68373, 2009 WL 2424037 (E.D.Cal. August 3, 2009) ("Plaintiff offers nothing to indicate that she is able to tender her debt to warrant disruption of non-judicial foreclosure"); Alicea v. GE Money Bank, 2009 U.S. Dist. LEXIS 60813, 2009 WL 2136969 (N.D.Cal. July 16, 2009) ("When a debtor is in default of a home mortgage loan, and a foreclosure is either pending or has taken place, the debtor must allege a credible tender of the amount of the secured debt to maintain any cause of action for foreclosure."); Montoya v. Countrywide Bank, 2009 U.S. Dist. LEXIS 53920, 2009 WL 1813973 (N.D.Cal. June 25, 2009) ("Under California law, the "tender rule‟ requires that as a precondition to challenging a foreclosure sale, or any cause of action implicitly integrated to the sale, the borrower must make a valid and viable tender of payment of the secured debt"). The application of the "tender rule" prevents "a court from uselessly setting aside a foreclosure sale on a technical ground when the party making the challenge has not established his ability to purchase the property." Williams v. Countrywide Home Loans, 1999 U.S. Dist. LEXIS 14550, 1999 WL 740375 (N.D.Cal. Sept.15, 1999).
Here, Plaintiff does not allege tender or the current ability to offer tender and no basis to set aside the foreclosure sale exists. All of Plaintiff‟s causes of action will be discussed, however, as a matter of completeness.
Plaintiff‟s first cause of action asserts slander of title. Plaintiff alleges Defendants are not the rightful legal owners of the deed of trust or the underlying indebtedness (Compl. ¶ 13) and do not have "the right to demand payments from Plaintiff or to foreclose against Plaintiff‟s property." (Compl. ¶ 16).
Defendants rejoin that "recordation of a notice of default and a notice of sale are  privileged acts on which no tort claim of any sort, other than malicious prosecution, may be based." (Doc. 5, MTD at5.)
The elements of a claim for slander of title under California law are (1) publication, (2) falsity, (3) absence of privilege and (4) "pecuniary loss.‟" Smith v. Commonwealth Land Title Ins. Co., 177 Cal.App.3d 625, 630, 223 Cal.Rptr. 339 (1986) (quoting Appel v. Burman, 159 Cal.App.3d 1209, 1214, 206 Cal.Rptr. 259 (1984)). "A privilege, either absolute or qualified, is a defense to a charge of slander of title." Id. Any notice or communication issued in the course of performing duties related to the non-judicial foreclosure sale is privileged and not actionable. Marty v. Wells Fargo Bank, CIV S-10-555 GEB DAD, 2011 WL 1103405 at *7 (March 22, 2011)(citing Cal. Civ.Code § 2924(d)); Green v. Alliance Title, No. CIV S--10--0242 MCE EFB PS, 2010 WL 3505072, at *19 (E.D.Cal. Sept.2, 2010); Jackson v. Ocwen Loan Servicing, LLC, No. 2:10--cv--00711--MCE--GGH, 2010 WL 3294397, at *4 (E.D.Cal. Aug.20, 2010) ("The Notices of Default and Trustee's Sale filed by Defendants ... are privileged publications because their filings were required by California law.").
Plaintiff asserts that Defendants did not own Plaintiff‟s Deed of Trust and "did not have the right" to record the Notice of Default or Notice of Trustee‟s Sale. Defendants have attached documents to their motion that contradict Plaintiff‟s allegations. Defendants have attached the Deed of Trust, which indicates that Homecomings was the lender and beneficiary. (See RJN, Ex. A.) Defendants have further attached documentary evidence that on July 24, 2006 a duly executed and notarized Assignment of Deed of Trust was recorded with the Inyo County Recorder‟s Office, which assigned beneficial interest in the Deed of Trust to GMAC.*fn2 Defendant GMAC was the beneficiary under the Deed of Trust. As a ...