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Shelley Von Brincken v. Mortgageclose.Com

June 30, 2011



This matter comes before the Court on Defendants' GMAC Mortgage, LLC, Executive Trustee Services, and Mortgage Electronic Registration Systems, Inc.'s (collectively "Defendants") Motion to Dismiss (Doc. #65) Plaintiff Shelley Von Brincken's ("Plaintiff") Second Amended Complaint ("SAC") (Doc. #62) for failure to state a claim pursuant to Federal Rules of Civil Procedure 12(b)(6). Plaintiff opposes the motion (Doc. #67). Defendant, Inc. joined in the Motion to Dismiss (Doc. #66). Plaintiff did not oppose the joinder, accordingly the Court will consider, Inc. as joined in the motion to dismiss 2 with Defendants. The motion was set for hearing on May 4, 2011, 3 but ordered submitted on the briefs without oral argument.*fn1


Plaintiff borrowed $220,000.00 on January 14, 2009 from, Inc. On the same date she signed a deed of 8 trust securing the properly located 14738 Wolf Rd., Grass Valley, California, as security for the loan. Plaintiff subsequently defaulted on the loan, and a Notice of Default was recorded on April 27, 2011. Thereafter, a Notice of Trustee's Sale was recorded on July 28, 2010, and the property was sold and Trustee's Deed Upon Sale recorded on September 3, 2010. Prior to the Sale on August 11, 2010, Plaintiff filed a Notice of Pendency of Action (Doc. #3) and filed an unsuccessful motion for a Temporary Restraining Order (Doc. #9).

Plaintiff alleges that she is the victim of fraud, predatory lending, and an unlawful foreclosure. Plaintiff was previously pro se, but acquired counsel, who filed the SAC. The SAC alleges problems with the chain of title and the Deed of Trust. Plaintiff further alleges that the purported lender/servicer failed, refused or neglected to work with her to avoid foreclosure. Defendants contend that despite Plaintiffs slew of general allegations about the mortgage banking industry, Plaintiff fails to state a claim against Defendants.


A. Legal Standard

A party may move to dismiss an action for failure to state a 4 claim upon which relief can be granted pursuant to Federal Rules of 5 Civil Procedure 12(b)(6). In considering a motion to dismiss, the 6 court must accept the allegations in the complaint as true and draw 7 all reasonable inferences in favor of the plaintiff. Scheuer v. 8 Rhodes, 416 U.S. 232, 236 (1975), overruled on other grounds by 9 Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322 (1972). Assertions that are mere "legal conclusions," however, are not entitled to the assumption of truth. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009), citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To survive a motion to dismiss, a plaintiff needs to plead "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. Dismissal is appropriate where the plaintiff fails to state a claim supportable by a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

Upon granting a motion to dismiss for failure to state a claim, the court has discretion to allow leave to amend the complaint pursuant to Federal Rules of Civil Procedure 15(a). "Absent prejudice, or a strong showing of any [other relevant] factor[], there exists a presumption under Rule 15(a) in favor of granting leave to amend." Eminence Capital, L.L.C. v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). "Dismissal with prejudice and without leave to amend is not appropriate unless it is clear . . . that the complaint could not be saved by amendment." Id.

Generally, the court may not consider material beyond the 2 pleadings in ruling on a motion to dismiss for failure to state a 3 claim. There are two exceptions: when material is attached to the 4 complaint or relied on by the complaint, or when the court takes 5 judicial notice of matters of public record, provided the facts are 6 not subject to reasonable dispute. Sherman v. Stryker Corp., 2009 7 WL 2241664 at *2 (C.D. Cal. Mar. 30, 2009) (internal citations 8 omitted). In this case, Plaintiff has attached Exhibits A-N (Doc. 9 #62, Ex. 1) to the SAC. Plaintiff relies on these documents in her Complaint (several of which are also public record as they are recorded documents), and Defendants do not object to the Court considering the attached documents. Accordingly, the Court will consider documents A-N in ruling on the motion to dismiss.

B. Claims for Relief

1. Violation of the Home Ownership Equity Protection Act

Plaintiff alleges that Defendants have violated the Homeownership Equity Protection Act ("HOEPA"), 15 U.S.C. § 1639. The SAC seeks rescission and damages under HOEPA. The SAC lumps all the defendants together and does not specifically identify the defendant(s) to whom her allegations pertain. Defendants argue that Plaintiff fails to state a claim for violation of HOEPA, because her claim is barred by the statute of limitations and the SAC does not sufficiently allege that her loan falls under HOEPA. However, Defendants only attack the portion of Plaintiff's claim seeking damages, and not her claim for rescission.

HOEPA is an amendment to the Truth in Lending Act ("TILA"), and therefore is governed by the same remedial scheme and statute of limitations as TILA. Hensley v. Bank of New York Mellon, 2010 2 WL 5418862, *4 (E.D. Cal. Dec. 23, 2010); Wadhwa v. Aurora Loan 3 Services, LLC, 2011 WL 1601593, *2 (E.D. Cal. April 27, 2011). The 4 statute of limitations for TILA damages claim is one year from the 5 occurrence of a violation. 15 U.S.C. § 1640(e). Under 15 U.S.C. 6 § 1635(f), TILA rescission claims shall expire three years after 7 the date of consummation of the transaction, or upon sale of the 8 property, whichever occurs first. The limitations period runs from 9 the date of consummation of the transaction. Wadhwa, supra (citing King v. California, 784 F.2d 910, 915 (9th Cir. 1986).

The doctrine of equitable tolling may, in the appropriate circumstance, suspend the limitation period until the borrower discovers or had reasonable opportunity to discover the fraud or nondisclosures that form the basis of the TILA action. While the applicability of the equitable tolling doctrine often depends on matters outside the pleadings, dismissal may be appropriate when a plaintiff fails to allege facts suggesting that he did not have a reasonable opportunity to discover the violation.

Wadwha, 2011 WL 1601593 at *2 (internal citations omitted).

Here, the loan was issued on January 14, 2009, and Plaintiff filed her complaint on August 11, 2010, more than one year later. Plaintiff has included the cursory allegation throughout the SAC that she did not learn of any violations until November 2009, and thus any applicable statute of limitation should run from this date. However, the SAC offers no factual support for Plaintiff's allegation that she was unable to compare the allegedly improper disclosure in the loan documents with the required disclosures under HOEPA, nor does she explain why she could not have learned of the alleged violations within the statutory period. See, e.g., Wadhwa, 2011 WL 1601593,at *2-3 (declining to apply equitable tolling where plaintiffs did not allege why they could not compare 2 disclosure forms or discover the violation during the statutory 3 period). Accordingly, the statute of limitations for Plaintiff's 4 HOEPA damages claim has run, and the Court does not find from the 5 SAC's conclusory tolling allegation that equitable tolling applies. 6

While Plaintiff's HOEPA claim for rescission is timely, Plaintiff 7 has failed to tender the full amount of the loan or alleged ability 8 to tender. See e.g. Little v. Accent Conservatory and Sunroom 9 Designs, 2011 WL 2215816, *3 (S.D. Cal. June 7, 2011). As when alleging a claim for rescission under TILA, ...

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