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Federal Deposit Insurance Corp. As Receiver For Indymac Bank, F.S.B v. Mirmax Housing & Finance

July 27, 2011

FEDERAL DEPOSIT INSURANCE CORP. AS RECEIVER FOR INDYMAC BANK, F.S.B., PLAINTIFF,
v.
MIRMAX HOUSING & FINANCE, INC.; RITA MIRZAIAN; ARUTYUN KESHISHYAN; AND SEAN KESHISHYAN AND DOES 1 THROUGH 10, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Hon. Otis D. Wright, II United States District Judge

ORDER DENYING DEFENDANTS' MOTIONS TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(6) [23, 25, 26]

[Filed 06/06/11, 06/07/11, 06/10/11]

I. INTRODUCTION

Pending before the Court are Defendants, Mirmax Housing & Finance, Inc., Rita Mirzaian, Arutyun Keshishyan, and Sean Keshishyan's (collectively, "Defendants"), three concurrently filed Motions to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).*fn1 (Dkt. Nos. 23, 25, 26.) Plaintiff, Federal Deposit Insurance Corporation as receiver for IndyMac Bank, F.S.B.'s ("Plaintiff"), filed an Opposition to each Motion on June 20, 2011. (Dkt. Nos. 28, 29, 30.) Having carefully considered the papers filed in support of and in opposition to the instant Motions, the Court deems the matters appropriate for decision without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15. For the following reasons, Defendants' Motions to Dismiss are DENIED.

II. FACTUAL AND PROCEDURAL BACKGROUND

This case arises from a mortgage loan that originated on or about December 27, 2007, between Sarkis Gyultyan ("Gyultyan") and IndyMac Bank, F.S.B. ("IndyMac"), and was secured by property located at 6229 Riverton Ave., North Hollywood, California 91606 (the "Property"). (FAC ¶ 11.) Shortly after its origination, the loan went into default and real estate broker Rita Mirzaian ("Mirzaian"), through her company Mirmax Housing & Finance, Inc. ("Mirmax"), listed the Property for $230,000 on behalf of Gyultyan. (FAC ¶¶ 16, 17.) One week later, Sean Keshishyan ("S. Keshishyan") made an offer on the Property for $190,000, which Gyultyan accepted subject to IndyMac's approval. (FAC ¶ 17.) S. Keshishyan was represented by Arutyun Keshishyan ("A. Keshishyan"), his brother and an employee of Mirmax. (Id.)

Plaintiff claims that Mirzaian and A. Keshishyan knowingly represented to IndyMac's loan servicer, OneWest Bank, that the offer was "the best possible sale scenario for the Property and that the listing price . . . was at or about market value." (FAC ¶ 18.) Allegedly, OneWest Bank used the information provided to it by Mirmax in its valuation of the Property, after which IndyMac indicated that it would approve an offer of $230,000. (FAC ¶¶ 19-21.) Immediately thereafter, S. Keshishyan offered $230,000 and the sale closed on December 31, 2009. (FAC ¶ 21.) Yet, on or about February 26, 2010, Mirzaian re-listed the Property on behalf of S. Keshishyan for $369,000, and the Property quickly sold for $400,000, with a closing date of March 9, 2010. (FAC ¶¶ 26-28.)

On May 17, 2011, Plaintiff filed a First Amended Complaint, claiming that Defendants artificially deflated the short sale price of the Property so that it could be purchased by S. Keshishyan and sold at a profit, even though no substantial improvements had been made to the Property. (FAC ¶ 22.) The FAC proceeds on two causes of action: (1) fraud, and (2) negligent misrepresentation. Defendants now seek to dismiss both claims.

III. LEGAL STANDARD

"To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), a complaint generally must satisfy only the minimal notice pleading requirements of Rule 8(a)(2)." Porter v. Jones, 319 F.3d 483, 494 (9th Cir. 2003). Rule 8(a)(2) requires "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). For a complaint to sufficiently state a claim, its "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Mere "labels and conclusions" or a "formulaic recitation of the elements of a cause of action will not do." Id. Rather, to overcome a 12(b)(6) motion, "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) (internal quotation marks omitted). "The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a 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 of relief." Id. (internal citation and quotation marks omitted).

When considering a 12(b)(6) motion, a court is generally limited to considering material within the pleadings and must construe "[a]ll factual allegations set forth in the complaint . . . as true and . . . in the light most favorable to [the plaintiff]." See Lee v. City of L.A., 250 F.3d 668, 688 (9th Cir. 2001) (citing Epstein v. Washington Energy Co., 83 F.3d 1136, 1140 (9th Cir. 1996)). A court is not, however, "required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).

IV. DISCUSSION

Defendants argue that the FAC does not meet the heightened pleading standard required for fraud and negligent misrepresentation claims. (Mot. at 10-12; S. Mot. at 7.)

Particularly, Defendants contend that Plaintiff's claim for fraud "fails to allege with specificity the how, when, where, to whom and by what means the alleged representations were made," and that Plaintiff's claim for negligent misrepresentation "fails to allege what legal duty [the] [Defendants] owe to Plaintiff and how it was breached, and how or why [P]laintiff . . . would or could reasonably rely on [Defendants'] ...


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