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Carl A. Impink v. Bank of America

September 6, 2011


The opinion of the court was delivered by: Honorable Barry Ted MoskowitzUnited States District Judge


BAC Home Loans Servicing, L.P. ("BACHLS") and Bank of America, N.A. (collectively "BofA") (erroneously sued as "Bank of America Attn: Document Services [Foreclosure]") have filed a motion to dismiss Plaintiff's Complaint for failure to state a claim. For the reasons discussed below, BofA's motion to dismiss is GRANTED. Plaintiff has filed a "motion to strike" BofA's motion to dismiss. The Court DENIES the motion to strike because there is no legal basis for such relief, and construes the motion to strike as Plaintiff's opposition to the motion to dismiss.


In September 2005, Plaintiff borrowed $400,000 from Universal Savings Bank, F.A., a federal savings bank ("Universal"). (RJN, Ex. A.) According to the terms of the note, the loan's interest rate of 5.25% was fixed for three years, after which the interest rate would adjust annually based on an Index plus 2.25%. (Id.)

Plaintiff's loan was secured by a deed of trust on property located at 13970 Olivevista Drive, Jamul, California 91935 (the "Property"). (RJN Ex. E.) The deed of trust names MERS as the beneficiary. (Id.)

On August 18, 2009, a Notice of Default was recorded against the Property by ReconTrust Company, N.A., "as agent for the Beneficiary." (RJN Ex. P.)

On April 1, 2010, MERS recorded an assignment by which MERS transferred its beneficial interest in the Deed of trust to BACHLS. (RJN Exs. P, Q.)


A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) should be granted only where a plaintiff's complaint lacks a "cognizable legal theory" or sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988). When reviewing a motion to dismiss, the allegations of material fact in plaintiff's complaint are taken as true and construed in the light most favorable to the plaintiff. See Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). Although detailed factual allegations are not required, factual allegations "must be enough to raise a right to relief above the speculative level." Bell Atlantic v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007). "A plaintiff's obligation to prove the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not show[n] that the pleader is entitled to relief." Ashcroft v. Iqbal, __ U.S. __, 129 S,Ct. 1937, 1950 (2009) (internal quotation marks omitted).


Defendants contend that the Complaint should be dismissed because Plaintiff has failed to state a claim. The Court agrees. As discussed below, Plaintiff's sixteen causes of action do not state viable legal claims and/or lack sufficient factual allegations.*fn1

First Cause of Action: Plaintiff's first cause of action for violations of Cal. Bus. & Prof. Code §§ 10240-10248.3, 12 C.F.R. §§ 226.23(a)(3), 226.19, and the Truth in Lending Act ("TILA"), 15 U.S.C. §§ 1601, et seq., is based on the alleged failure of Plaintiff's loan broker to provide him with certain disclosures. However, Plaintiff does not allege that BofA was his loan broker or had anything to do with loan broker.

Second Cause of Action: Plaintiff contends that the lender violated FDIC policies and California Financial Code § 50204(g) by failing to properly determine whether Plaintiff would be able to make his monthly payments. Universal, not BofA, was the lender. At any rate, it does not appear that there is a private right of action for violation of FDIC policies. As for Plaintiff's Financial Code claim, § 50204 applies to "licensees" in the business of making residential mortgages or servicing residential mortgages. A federally chartered savings and loan association, federal savings bank, or federal credit union that is authorized to transact business in California is exempt from California's license requirement. Cal. Fin. Code § 50002(a), (c)(3). Accordingly, it appears that § 50204 does not apply to Universal.

Third Cause of Action: Plaintiff asserts a claim of "imprudent underwriting" in violation of Cal. Civ. Code § 1920(a), which provides that "[s]tandards for the adjustment of interest rates or monthly payments shall consider factors which can reasonably be deemed to affect the ability of borrowers to meet their mortgage obligations." Again, BofA was not the lender. In addition, it appears that § 1920(a) would be preempted by the Home Owners' Loan Act of 1933 ("HOLA"), 12 U.S.C. § 1641, et seq., and the regulations issued thereunder by the Office of Thrift Supervision ("OTS"). See Giordano v. Wachovia Mortg., FSB, 2010 WL 5148428 (N.D. Cal. Dec. 14, ...

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