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Esteban Murillo, An Individual; Patricia O'berry, An Individual v. Wells Fargo

August 26, 2011

ESTEBAN MURILLO, AN INDIVIDUAL; PATRICIA O'BERRY, AN INDIVIDUAL, PLAINTIFF,
v.
WELLS FARGO, NATIONAL ASSOCIATION, A BUSINESS ENTITY; WACHOVIAM ORTGATGE, FSB, A BUSINESS ENTITY; WORLD SAVINGS BANK, A BUSINESS ENTITY; GOLDEN WEST SAVINGS ASSOCAITION SERVICE, A BUSINESS ENTITY; NATIONS TITLE COMPANY OF CALIFORNIA, DEFENDANTS.



The opinion of the court was delivered by: Dean D. Pregerson United States District Judge

ORDER GRANTING MOTION TO DISMISS

[Motion filed on 2/11/11]

Presently before the court is Defendant Wachovia Mortgage ("Wachovia")'s Motion to Dismiss Plaintiffs' First Amended Complaint ("FAC"). Having considered the submissions of the parties, the court grants the motion and adopts the following order.*fn1

I. Background

On or about December 18, 2007, Plaintiffs obtained a $975,000 home loan from Defendant. (FAC ¶¶ 18-19, Defendant's Request for Judicial Notice, Exhibit 6). On December 8, 2010, Plaintiffs sent a letter to Defendants rescinding the loan. (FAC ¶ 26). The following day, Plaintiffs filed suit against Defendant in Los Angeles County Superior Court. (Notice of Removal, Dkt. No. 1). Defendants removed to this court and Plaintiffs later amended the complain, alleging violations of the Truth in Lending Act ("TILA"), 15 U.S.C. § 601, et seq., and the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. 2600 et seq. Wachovia now moves to dismiss.

II. Legal Standard

Under Federal Rule of Civil Procedure 12(b)(6), a complaint is subject to dismissal when the plaintiff's allegations fail to state a claim upon which relief can be granted. When considering a 12(b)(6) motion to dismiss for failure to state a claim, "all allegations of material fact are accepted as true and should be construed in the light most favorable to [the] plaintiff." Resnick v. Hayes, 213 F.3d 433, 447 (9th Cir. 2000).

In Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009), the Supreme Court explained that a court considering a 12(b)(6) motion should first "identify[] pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth."

Id. Next, the court should identify the complaint's "well-pleaded factual allegations, . . . assume their veracity and then determine whether they plausibly give rise to an entitlement to relief."

Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) ("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" (internal quotation marks omitted)).

III. Discussion

As an initial matter, Plaintiffs do not object to dismissal of their RESPA claim. (Opposition at 5). Accordingly, that claim is dismissed.*fn2

Congress enacted TILA "to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit, and to protect the consumer against inaccurate and unfair credit billing and credit card practices."

15 U.S.C. ยง 1601(a). Accordingly, TILA "requires creditors to provide borrowers with clear and accurate disclosures of terms dealing with things like finance charges, annual percentage rates of interest, and the borrower's rights." Beach v. Ocwen Fed. Bank, 523 U.S. 410, 412 (1998). A borrower has two potential remedies for a lender's violation of TILA's disclosure ...


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