The opinion of the court was delivered by: The Honorable David O. Carter, Judge
Julie Barrera Not Present Courtroom Clerk Court Reporter
ATTORNEYS PRESENT FOR PLAINTIFFS: ATTORNEYS PRESENT FOR DEFENDANTS:
NONE PRESENT NONE PRESENT
PROCEEDING (IN CHAMBERS): ORDER GRANTING DEFENDANTS' MOTION TO DISMISS;
Before the Court are Defendants Aurora Loan Services LLC, Merscorp, Inc. and Mortgage Electronic Registration Systems, Inct.'s Motion to Strike Portions of Third Amended Complaint (dkt. 10); Defendants Aurora Loan Services LLC, Merscorp, Inc. and Mortgage Electronic Registration Systems Inc.'s Motion to Dismiss Third Amended Complaint (dkt. 11), Defendant Transcend Investment Joinder in Motion to Dismiss Third Amended Complaint (dkt. 12), and Plaintiffs Franklin Tucker and Lawanda Tucker's Motion to Remand Case to State Court Pursuant to 28 U.S.C. 1447(c) (dkt. 20). The Court finds this matter appropriate for decision without oral argument. Fed.R.Civ. P. 78; Local Rule 7-15. After considering the moving, opposing and replying papers, and for the reasons stated below, the Court hereby GRANTS IN PART the Motions to Dismiss and REMANDS the case to
Plaintiff Manya Washington ("Washington") filed this action in Orange County Superior Court on May 28, 2010. On September 14, 2010, Washington filed a First Amended Complaint, and then filed a Corrected First Amended Complaint on September 20, 2010. On October 6, 2010, she filed an Amendment to the Corrected First Amended Complaint in the Action. On December 20, 2010, Washington, along with Franklin Tucker and LaWanda Tucker (collectively the"Tuckers") filed a Second Amended Complaint. Finally, on June 3, 2011, following Plaintiffs' counsel's failure to appear at court and adequately represent Plaintiffs, they retained new counsel and filed the present Third Amended Complaint ("TAC"), asserting for the first time federal causes of action. Defendants timely removed the case to the Central District of California (dkt. 1).
Plaintiffs Tuckers are a married couple, who assert that they are co-borrowers of mortgages and Plaintiff Washington, is a co-borrower of the mortgages and a co-purchaser of the subject property. See TAC, ¶¶ 1-2. Washington purchased the subject property on July 20, 2006, using two loans for the purchase, secured by First and Second Deeds of Trust.*fn1 Plaintiffs allege that Defendants engaged in an unlawful, non-judicial foreclosure proceeding and proceeded to sell Plaintiffs' home to a real estate investor. Following the filing of an unlawful detainer action, Plaintiffs were evicted. Plaintiffs' former counsel filed an action in state court on May 28, 2010, seeking injunctive relief, declaratory relief, and damages, and a preliminary injunction to stop the foreclosure sale. The court issued a temporary restraining order, but ultimately denied a request for preliminary injunction on June 24, 2010.*fn2
Plaintiffs' TAC alleged that Plaintiffs had an oral agreement with Aurora Loan Services, LLC ("Aurora") that Aurora would not foreclose on Plaintiffs' property while it considered a loan modification. Following the state court's denial of the injunction, Aurora proceeded with the foreclosure and sold the property to Transcend. Transcend then obtained an unlawful detainer against Plaintiffs, and Washington obtained a preliminary injunction to prevent Transcend from selling the
Plaintiffs' TAC asserts causes of action for (1) Violation of the California False Claims Act; (2) Fraud; (3) Violation of the Federal and State Fair Debt Collection Practices Act; (4) Predatory Lending; (5) Breach of Contract/Trust/Fiduciary Duty; (6) Wrongful Foreclosure; (7) Violation of Business and Professions Code Sections 17200 et seq.; (8) Violation of the Consumer Legal Remedies Act; (9) Declaratory Relief.
Under Federal Rule of Civil Procedure 12(b)(6), a complaint must be dismissed when a plaintiff's allegations fail to state a claim upon which relief can be granted. Dismissal for failure to state a claim does not require the appearance, beyond a doubt, that the plaintiff can prove "no set of facts" in support of its claim that would entitle it to relief. Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1968 (2007) (abrogating Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99 (1957)). In order for a complaint to survive a 12(b)(6) motion, it must state a claim for relief that is plausible on its face. Ashcroft v. , 129 S.Ct. 1937, 1950 (2009). A claim for relief is facially plausible when the plaintiff pleads enough facts, taken as true, to allow a court to draw a reasonable inference that the defendant is liable for the alleged conduct. Id. at 1949. If the facts only allow a court to draw a reasonable inference that the defendant is possibly liable, then the complaint must be dismissed. Id. Mere legal conclusions are not ...