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Steven K. Zinnel v. Citimortgage

September 9, 2011



This case came before the court on May 27, 2011, for hearing of defendants' motion to dismiss this action pursuant to Federal Rule of Civil Procedure 12(b)(6) (Doc. No. 21). Jillian A. Benbow, Esq. appeared telephonically for the moving parties. Plaintiff, proceeding pro se, appeared telephonically on his own behalf. Oral argument was heard, and the motion was taken under submission.

Upon consideration of all written materials filed in connection with defendants' motion, the parties' arguments at the hearing, and the entire file, the undersigned recommends that defendants' motion to dismiss be granted.


Plaintiff commenced this action in this court on September 8, 2010, by filing a complaint alleging wrongful foreclosure and thirteen other causes of action. (Doc. No. 1.) The complaint alleged diversity jurisdiction along with federal question jurisdiction predicated on claims presented as arising under the Fair Debt Collection Practices Act and RICO. Plaintiff paid the required filing fee, and a summons was issued as to named defendants CitiMortgage, Inc. and CR Title Services, Inc.

On September 9, 2010, plaintiff filed an ex parte application for a temporary restraining order, an order to show cause, and a preliminary injunction seeking to prevent defendants from proceeding with a scheduled non-judicial foreclosure sale of his home. (Doc. No. 5 at 1.) By order filed September 16, 2010, District Judge Garland E. Burrell, Jr. declined to consider plaintiff's motion for preliminary injunction in the absence of notice to the adverse parties and denied plaintiff's ex parte application for a temporary restraining order and order to show cause due to plaintiff's failure to demonstrate a likelihood of success on the merits of the wrongful foreclosure claim as well as other deficiencies in plaintiff's arguments. (Doc. No. 9.)

On September 20, 2010, plaintiff filed a new motion for temporary restraining order (Doc. No. 10) and an amended complaint (Doc. No. 11). The renewed motion was referred to the undersigned. A telephonic hearing on the renewed motion was conducted on September 21, 2010. Counsel for defendants informed the court that the trustee's sale scheduled for September 22, 2010 had been postponed to October 22, 2010, pending confirmation that funds for reinstatement of plaintiff's mortgage loan had been received from plaintiff. Plaintiff's motion was taken under submission pending defendants' filing of a status report concerning the trustee's sale. (Doc. No. 12.) Defense counsel's declaration filed September 28, 2010, stated that plaintiff's loan had been reinstated, notice of plaintiff's default had been rescinded by notice recorded September 27, 2010, and there was no longer a trustee's sale pending. (Doc. No. 18.) In findings and recommendations filed October 14, 2010, the undersigned recommended that plaintiff's renewed motion for temporary restraining order therefore be denied as moot. (Doc. No. 20.) Those findings and recommendations were adopted in full by the assigned district judge on November 10, 2010. (Doc. No. 28.)

On October 14, 2010, defendants filed their motion to dismiss this action. (Doc. No. 21.) When the motion came before the court on December 10, 2010, the parties agreed to participate in an early settlement conference and to defer hearing of the motion. (Doc. No. 43.) The case did not settle at the early settlement conference conducted on February 17, 2011. (Doc. No. 49.) A further settlement conference scheduled for March 24, 2011, was continued to April 28, 2011 at the parties' request and was subsequently vacated at the parties' request. (Doc. Nos. 52 & 55) Defendant's fully briefed motion to dismiss was re-set for hearing on May 27, 2011. (Id.)


The operative pleading is plaintiff's first amended complaint filed September 20, 2010. (First Am. Compl. (Doc. No. 11).) As in the original complaint, the named defendants are CitiMortgage, Inc. and CR Title Services, Inc. (Id. at 1.) The caption of the pleading lists plaintiff's fourteen causes of action, which include claims under the Federal Fair Debt Collection Practices Act and the RICO statutes. (Id.)

Plaintiff alleges jurisdiction based on federal question and diversity. (Id. at 2.) With regard to the latter, plaintiff alleges that he is a California citizen while defendant CitiMortgage, Inc. was incorporated in New York and has its principal place of business in Missouri, and defendant CR Title Services, Inc. was incorporated in Delaware and has its principal place of business in Florida. (Id.) Plaintiff alleges that the amount in controversy exceeds $75,000.00 because the property at issue is valued at $579,500.00 or more and the note at issue was originally for the amount of $294,550.00 (Id.) Plaintiff alleges that at all relevant times he was "the owner of real property located at 11966 Old Eureka Way, Gold River, CA 95670 a single family residence in which Plaintiff resides." (Id. at 3.)


I. Standards Applicable to a Motion to Dismiss under Fed. R. Civ. P. 12(b)(6)

The purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal sufficiency of the complaint. N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). To survive a motion to dismiss pursuant to Rule 12(b)(6), a complaint must satisfy the requirements of Rule 8. A complaint that alleges fraud or mistake must also satisfy the requirements of Rule 9(b).

A. Dismissal of Claims Pursuant to the Requirements of Fed. R. Civ. P. 8 Rule 8 requires a party's pleading to contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The pleading must give the defendant fair notice of what the claims are and the grounds upon which those claims rest. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Although detailed factual allegations are not required by Rule 8, "a plaintiff's obligation to provide 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." 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).

For the purpose of determining whether a complaint states a claim upon which relief may be granted, the general rule is that the court accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). However, the court need not assume the truth of legal conclusions cast in the form of factual allegations. W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). The court is permitted to consider material which is properly submitted as part of the complaint, documents not physically attached to the complaint if their authenticity is not contested and the plaintiff's complaint necessarily relies on them, and matters of public record. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001). Pro se complaints are held to less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972).

The Supreme Court recently reiterated that, in order to meet the Rule 8 pleading standard and survive a motion to dismiss, a complaint "must contain sufficient factual matter . . . to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, U.S. , , 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct at 1949 (citing Twombly, 550 U.S. at 556). Thus, the plausibility standard requires "more than a sheer possibility that a defendant has acted unlawfully." 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 556.) If a complaint pleads facts merely consistent with a defendant's liability, the complaint falls short of the line between possibility and plausibility of entitlement to relief. 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 557.) Accordingly, legal conclusions and threadbare recitals of the elements of a cause of action supported only by conclusory statements do not suffice and are not entitled to a presumption of truth. Id. at 1949-50. Put another way, Rule 8 "does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Id. at ...

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