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Nancy Coburn v. the Bank of New York Mellon

August 8, 2011

NANCY COBURN,
PLAINTIFF,
v.
THE BANK OF NEW YORK MELLON, N.A.; FIRST HORIZON HOME LOAN CORPORATION; QUALITY LOAN SERVICE CORPORATION; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; AND DOES THROUGH 50, INCLUSIVE, DEFENDANTS.



ORDER GRANTING DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT

This matter comes before the Court on Bank of New York Mellon ("BONY"), First Horizon Home Loan Corporation ("First Horizon"), Quality Loan Service Corporation ("Quality Loan"), and Mortgage Electronic Registration Systems, Inc.'s ("MERS"), collectively ("Defendants"), Motion to Dismiss the First Amended Complaint (Doc. #16). Plaintiff Nancy Coburn ("Plaintiff") opposes the Motion (Doc. #18).*fn1

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff alleges that Defendants induced her to rely on 3 representations for loan modifications if she defaulted on her 4 monthly mortgage payments. 5

On June 23, 2005, Plaintiff entered into a home loan 6 transaction with First Horizon for $904,000. In November 2008, 7

Plaintiff notified First Horizon that due to a reduction in income, 8 she would be unable to meet the terms of her loan repayment 9 schedule. Plaintiff alleges that First Horizon informed her it would not modify her loan until she became delinquent on her monthly payments. Plaintiff hired a private company to help her modify the loan but she was unable to do so and defaulted. Quality Loan recorded a notice of Plaintiff's default under the Deed of Trust in the public records of Placer County on September 16, 2009. The property was sold on August 3, 2010, but the sale was later rescinded. After the home sale, Plaintiff claims she received a telephone call from First Horizon with an offer to reduce her loan 8 payments to $1,500 a month. Plaintiff's attorney contacted First Horizon the following day and was told the loan modification reducing her payments to $1,500 per month was incorrect, but that Plaintiff could modify her loan for $5,100 per month.

Plaintiff filed her Complaint (Doc. #1) in the Superior Court of Placer County on October 15, 2010; it was removed to this Court on November 15, 2010. Defendants filed a Motion to Dismiss on November 22, 2010 (Doc. #7). On March 22, 2011, the Court issued an Order Granting Defendants' Motion to Dismiss ("Order") (Doc. #14). The Court gave Plaintiff leave to amend her claims alleging deceit, civil conspiracy, negligence, and unfair competition in violation of California Business and Professions Code 2 § 1722, et seq.,; dismissed with prejudice Plaintiff's California 3 Civil Code § 2923.5 claim and Plaintiff's request for declaratory 4 and injunctive relief; and denied Defendants' motion to strike 5 without prejudice.

In the FAC, Plaintiff alleges three causes of action: 7

(1) Deceit; (2) Negligence; and (3) Violations of Business and Professions Code § 17200, et seq. Defendants move to dismiss the FAC. Plaintiff opposes the Motion.

II. OPINION

A. Legal Standard

1. Motion to Dismiss

A party may move to dismiss an action for failure to state a claim upon which relief can be granted pursuant to Federal Rules of Civil Procedure section 12(b)(6). In considering a motion to dismiss, the court must accept the allegations in the complaint as 8 true and draw all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by 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 Atlantic 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 Department, 901 F.2d 696, 699 (9th 2 Cir. 1990). 3

Upon granting a motion to dismiss for failure to state a 4 claim, the court has discretion to allow leave to amend the 5 complaint pursuant to Federal ...


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