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Thuyduong Nguyen, et al v. Saxon Mortgage Servicing

July 1, 2011




Plaintiffs Thuyduong Nguyen and Jason Palarca obtained a residential home loan from Defendant Decision One Mortgage Company, LLC ("Decision One") in order to finance the real property located at 2968 Trigger Lane, Livingston, CA 95334.*fn2 On January 10, 2007, a deed of trust was recorded against Plaintiffs' real property in the amount of $299,814.00. The real property has not been sold at a foreclosure sale.

On February 4, 2011, Plaintiffs filed a Complaint against Defendants Decision One and Saxon Mortgage Services, Inc. ("Saxon") in Merced County Superior Court.*fn3 On May 10, 2011, Saxon removed the case to this Court based on federal question and diversity jurisdiction. Subsequently, on May 17, 2011, Saxon filed (1) a motion to dismiss or in the alternative motion for more definite statement; and (2) a motion to strike portions of Plaintiffs' Complaint. Plaintiffs failed to file an opposition to either of Saxon's motions. For the reasons that follow, Saxon's motion to dismiss is granted.


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). 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). As the Supreme Court has explained:

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, 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. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

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[.]" Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 2010) (citations omitted). "In sum, 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).

If a Rule 12(b)(6) motion to dismiss 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." Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995). In other words, leave to amend need not be granted when amendment would be futile. Gompper v. VISX, Inc., 298 F.3d 893, 898 (9th Cir. 2002).


1. Wrongful Foreclosure

In the first cause of action, Plaintiffs bring a wrongful foreclosure claim. "Wrongful foreclosure is an action in equity, where a plaintiff seeks to set aside a foreclosure sale that has already occurred." Manzano v. Metlife Bank, N.A., No. CIV. 2:11--651 WBS DAD, 2011 WL 2080249, at *6 (E.D. Cal. May 25, 2011). In the Complaint, Plaintiffs allege that the real property at issue has not been sold at a foreclosure sale. Complaint at ¶ 5. Since Plaintiffs' house has not yet been sold, a claim for wrongful foreclosure is not yet ripe. Accordingly, Saxon's motion to dismiss Plaintiffs' first cause of action for wrongful foreclosure is GRANTED.

Within the wrongful foreclosure claim, Plaintiffs allege that all Defendants should be restrained from bringing a foreclosure sale against the Plaintiffs' real property. Complaint at ΒΆ 13. It appears that Plaintiffs are seeking an injunction against Defendants in order to prevent a foreclosure sale. To the extent ...

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