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Bradley L. Hall v. Mortgage Investors Group

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


September 16, 2011

BRADLEY L. HALL,
PLAINTIFF,
v.
MORTGAGE INVESTORS GROUP, OLD REPUBLIC TITLE COMPANY, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., QUALITY LOAN SERVICE CORP., BAC HOME LOAN SERVICING, LP, LSI TITLE COMPANY, DOES 1-100, INCLUSIVE, DEFENDANTS.

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

This matter comes before the Court on Defendants BAC Home Loan Servicing, LP ("BAC"), Mortgage Electronic Registration Systems, Inc. ("MERS") and Recontrust Company, N.A.'s ("Recontrust") (collectively "Defendants") Motion to Dismiss (Doc. #9, 27) Plaintiff Bradley Hall's ("Plaintiff") Complaint (Doc. #1), pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendants also move to expunge a recorded lis pendens (Doc. #9). Plaintiff opposes only the Motion to Dismiss (Doc. #18).*fn1

For the reasons set forth below, Defendants' Motion to Dismiss and Motion to Expunge are granted in their entirety.

I. FACTUAL AND PROCEDURAL BACKGROUND

This action arises out of a non-judicial foreclosure of real property located at 3013 Latham Lane in El Dorado Hills, California ("Subject Property"). See Plaintiff's Complaint, Doc. #1 ("Comp."), ¶¶ 1, 18, 19. Sometime in 2007, Plaintiff borrowed $279,500.00 from non-moving defendant Mortgage Investors Group, which was secured by the Subject Property. Id. at ¶¶ 44, 48. Plaintiff subsequently defaulted on the loan, and various defendants began the foreclosure process. Id. at ¶¶ 18, 19, 49.

Plaintiff alleges that he is "the victim of fraud, unlawful and predatory lending [practices,] and an underlying conspiracy to commit fraud." Comp. at ¶ 18. Plaintiff seeks relief based on alleged wrongful acts by Defendants during the loan origination process and Defendants' failure to "work with Plaintiff in any reasonable way to avoid foreclosure during the time of [Plaintiff's] financial difficulties." Id. at ¶ 55.

Defendant Recontrust moved to join the Motion to Dismiss (Doc. #27) on July 15, 2011, which Plaintiff did not oppose. Accordingly, this Court considers the pending Motion to Dismiss and Motion to Expunge as filed by all Defendants.

II. OPINION

A. Legal Standard

A party may move to dismiss an action for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). In considering a motion to dismiss, the court must accept the allegations in the complaint as 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 Atl. 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 Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

Upon granting a motion to dismiss for failure to state a claim, the court has discretion to allow leave to amend the complaint pursuant to Federal Rule of Civil Procedure 15(a). "Dismissal with prejudice and without leave to amend is not appropriate unless it is clear . . . that the complaint could not be saved by amendment." Eminence Capital, L.L.C. v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).

B. Judicial Notice

In this case, both parties submit requests for judicial notice. Generally, the Court may not consider material beyond the pleadings in ruling on a motion to dismiss for failure to state a claim, unless the material is attached to, or relied on by, the complaint, or the court takes judicial notice of matters of public record, provided the facts are not subject to reasonable dispute. E.g., Sherman v. Stryker Corp., 2009 WL 2241664 at *2 (C.D. Cal. Mar. 30, 2009) (citing Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) and FED. R. EVID. 201).

Plaintiff filed an "Exhibit Index to the Complaint," attaching the Deed of Trust, Substitution of Trustee, Notice of Default, and Notice of Trustee's Sale (Doc. #7, Exhibits A-D), and Defendants also request that this Court take judicial notice of these same documents. See Defendants' Request for Judicial Notice ("Defs.' RJN"), Doc. #9-2, Exhibits A, D, B, & E, respectively. As Plaintiff did not object to Defendants' request, and because he relies on these documents in his Complaint, this Court will grant Defendants' request and take judicial notice of the Deed of Trust, Substitution of Trustee, Notice of Default, and Notice of Trustee's Sale (Defs.' RJN, Exhibits A, D, B, & E) in accordance with Federal Rule of Evidence 201.

Plaintiff also included a request for judicial notice in his Opposition to Defendants' Motion to Dismiss, asking this Court to consider two consent orders entered by federal agencies and signed by various MERS personnel (Doc. #18, Exhibits A, B). These documents are irrelevant to the pending motion to dismiss, and this case, and therefore, Plaintiff's request as to Exhibits A and B to his Opposition is denied. See FED. R. EVID. 201.

Defendant further requests that this Court take judicial notice of the Assignment of Deed of Trust, a second Notice of Trustee's Sale (recorded April 20, 2011), and a lis pendens (recorded April 11, 2011). Defs.' RJN, Exhibits C, F, & G. Because Plaintiff did not object to Defendants' request, and Federal Rule of Evidence 201 authorizes consideration of the proffered documents, this Court grants Defendants' requests for judicial notice.

C. Motion to Dismiss*fn2

1. Federal Claims for Relief

a. Breach of Security Instrument under HOEPA

Plaintiff alleges Defendants failed to provide proper disclosures to Plaintiff when the loan at issue was consummated and engaged "in a pattern and practice of extending credit to Plaintiff without regard to his ability to pay . . . ," in violation of the Home Owners' Equity Protection Act ("HOEPA"). Comp. at ¶¶ 66-70.

HOEPA is a section of the Truth in Lending Act ("TILA") which contains specific disclosure requirements and minimum standards for residential mortgage loans. See 15 U.S.C § 1639. To state a cognizable claim, a "[p]laintiff must allege facts supporting a conclusion that HOEPA applies to the loan at issue . . . ." Marks v. Chicoine, 2007 WL 160992 at *8 (N.D. Cal. Jan. 18, 2007) (citing 15 U.S.C. § 1602). For a loan to be subject to HOEPA, a plaintiff must establish:

Either the annual percentage rate of the loan at consummation must exceed by more than 10 percent the applicable yield on treasury securities, or the total points and fees payable by the consumer at or before closing has to be greater than percent of the total loan amount, or $400.00.

Lynch v. RKS Mortg. Inc., 588 F.Supp.2d 1254, 1260 (E.D. Cal. 2008) (citing 15 U.S.C. § 1602(aa)(1) and 12 C.F.R. § 226.32(a)(1)).

Defendants correctly point out that Plaintiff has failed to plead any facts in his Complaint demonstrating that HOEPA applies to the loan at issue in this case. Defs' MTD at pg. 4-6; see also Von Brincken v. Mortgageclose.com Inc., et al., 2011 WL 2621010 at *3 (E.D. Cal. June 30, 2011). Plaintiff only alleges that he was "required to pay excessive fees, expenses, and costs which exceeded more than 10% of the amount financed," and Plaintiff did not direct this Court to any other allegations in his Complaint that support his theory that HOEPA applies in this case. See Comp. at ¶ 64; Opp. at pg. 8. Because Plaintiff has failed to plead sufficient facts to substantiate his breach of security instrument claim, this cause of action is dismissed without prejudice.

Defendants also point out that Plaintiff's claim is barred by TILA's one-year statute of limitations for damages and three year statute of limitations for rescission, applicable to HOEPA claims, as Plaintiff's loan was executed in June 2007 and he did not file his complaint until April 2011, nearly four years later. Defs' MTD at pg. 5-6. Plaintiff acknowledges his HOEPA claim was filed outside of the statute of limitations, but argues that equitable tolling applies to extend the limitations period because he "had no way to know his statute of limitations [sic] started to run from the time of the loan." Opp. at pg. 6.

In the Ninth Circuit, "[e]quitable tolling may be applied if, despite all due diligence, a plaintiff is unable to obtain vital information bearing on the existence of his claim." Santa Maria v. Pacific Bell, 202 F.3d 1170, 1178 (9th Cir. 2000) (citing Holmberg v. Armbrecht, 327 U.S. 392, 397 (1946)). Importantly:

[E]quitable tolling does not depend on any wrongful conduct by the defendant to prevent plaintiff from suing.

Instead it focuses on whether there was excusable delay by the plaintiff. If a reasonable plaintiff would not have known the existence of a possible claim within the limitations period, then equitable tolling will serve to extend the statute of limitations for filing suit until plaintiff can gather what information he needs.

Id. (citing Thelen v. Marc's Big Boy Corp., 64 F.3d 264, 268 (7th Cir. 1995)) (other citations omitted).

In his Opposition, Plaintiff simply asks that this Court "exercise its discretion and equitable power and toll the statute of limitations." Opp. at pg. 6. Plaintiff's Complaint is devoid of facts demonstrating that he exercised due diligence in attempting to uncover information regarding his claims or that it was reasonable for Plaintiff to not have known of the existence of his claim, explaining why Plaintiff did not point this Court to his complaint to support the request in his Opposition to toll the statute of limitations. See Opp. at pg. 6-8; Comp. at ¶ 89 (merely alleging "Plaintiff first learned of the actions of Defendants . . . in March 2011. Any applicable statute of limitations should run from this date."). Plaintiff's conclusory statements lack the requisite factual specificity to withstand Defendants' Motion to Dismiss. Compare Von Brincken v. Mortgageclose, et al., 2011 WL 2621010 at *2-3 (E.D. Cal. June 30, 2011) (finding an identical HOEPA claim, filed by Plaintiff's counsel, was barred by the statute of limitations and that Plaintiff had failed to plead facts supporting the application of equitable tolling in his second amended complaint). Accordingly, Plaintiff's claim for "Breach of Security Instrument" under HOEPA is dismissed, with leave to amend.

b. Violations of RESPA

Plaintiff alleges that Defendants violated the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2607, by "accept[ing] charges for the rendering of real estate services which were in fact charges for other than services [sic] actually performed." Comp. at ¶ 92.

RESPA proscribes referral fees or fee splitting "in connection with a transaction involving federally related mortgage loan." 12 U.S.C. § 2607(a), (b). As Defendants correctly point out, Plaintiff's Complaint contains a dearth of facts related to his RESPA claim, and he has not pled that Defendants violated RESPA by engaging in either of the proscribed acts. Defs' MTD at pg. 6-7; see also Opp. at pg. 9 (stating, in a conclusory fashion, that Plaintiff's Complaint contained sufficient facts to withstand Defendants' Motion). Accordingly, Plaintiff's RESPA claim is dismissed without prejudice.

Defendants also note that Plaintiff's RESPA claim is barred by the one-year statute of limitations. Defs' MTD at pg. 7 (citing 12 U.S.C. § 2614). Plaintiff makes the same argument regarding the application of equitable tolling as he did with his HOEPA claim, and it is defective for the same reasons stated above. See supra at C.1.a. Accordingly, Plaintiff's RESPA claim is dismissed without prejudice because Plaintiff has failed to plead facts demonstrating the applicable statute of limitations should be tolled.

c. Violations of TILA

Plaintiff alleges Defendants "failed to include and disclose certain charges in the finance charge shown on the TILA statement," in violation of 15 U.S.C. § 1601, et seq., and Plaintiff seeks both rescission and damages. Comp. at ¶¶ 95-99. Plaintiff does not include any facts supporting his conclusory allegations that Defendants violated TILA, and therefore, Plaintiff's TILA claims for rescission and damages cannot withstand Defendants' Motion to Dismiss. See also Von Brincken v. Mortgageclose, et al., 2011 WL 2621010 at *4 (E.D. Cal. June 30, 2011).

Plaintiff's TILA claim is also time-barred. As set forth above, the statute of limitations under TILA is one year for damages and three years for rescission, and as Defendants note, Plaintiff's Complaint was filed well outside both. Defs' MTD at pg. 5-6. For the same reasons detailed above regarding Plaintiff's HOEPA claim, Plaintiff has failed to plead facts to support the application of equitable tolling in this case. Accordingly, Plaintiff's claim under TILA for rescission and damages is dismissed without prejudice.

d. Violations of FCRA

Plaintiff alleges that Defendants violated the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681, by "wrongfully, improperly, and illegally report[ing] negative information as to the Plaintiff to one or more credit reporting agencies . . . ." Comp. at ¶ 101.

There is a private right of action for violations of section 1681(S)(2()(b) of the FRCA. Matracia v. JP Morgan Chase Bank, 2011 WL 1833092 at *3 (E.D. Cal. May 12, 2011). However, to succeed on such a claim, a plaintiff must allege that he had a dispute with a credit reporting agency regarding the accuracy of an account, that the credit reporting agency notified the furnisher of the information, and that the furnisher failed to take the remedial measures outlined in the statute. Id. As Defendants properly argue, Plaintiff has not pled any facts supporting the elements of 4a cause of action under FCRA, and Plaintiff does not rebut this charge by pointing the Court to any facts substantiating the FCRA claim pled his Complaint. Defs' MTD at pg. 8-9; Opp. at pg. 9-10.

Plaintiff has failed to plead any facts supporting his claim, and therefore, Defendants' Motion to Dismiss is granted without prejudice as to the FCRA claim.

2. State Law Claims for Relief

a. Fraudulent Misrepresentation

Plaintiff contends Defendants fraudulently concealed and misrepresented information about his loan, before and after closing. Comp. at ¶¶ 108-114.

Federal Rule of Civil Procedure 9(b) provides a heightened pleading standard, which applies to all "averments of fraud," regardless of whether or not "fraud" is an essential element of the claim. Vess v. Ciba-Geigy Corp., 317 F.3d 1097, 1103-1105 (9th Cir. 2003). Rule 9(b) provides that "[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake," meaning a plaintiff must plead the "time, place, and specific content of the false representations, as well as the identities of the parties to the misrepresentations." Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir. 2007) (internal quotations and citations omitted).

Importantly, when a plaintiff pleads a claim for fraud against multiple defendants:

Rule 9(b) does not allow a complaint to merely lump multiple defendants together but requires plaintiff[ ] to differentiate [his] allegations when suing more than one defendant . . . and inform each defendant separately of the allegations surrounding his alleged participation in the fraud . . . . [A] plaintiff must, at a minimum, identify the role of each defendant in the alleged fraudulent scheme.

Id. at 764-65 (quotations omitted).

Defendants correctly assert that Plaintiff's allegations of fraud are conclusory and lack the specificity required by Rule 9(b). Defs' MTD at pg. 9-10. Indeed, Plaintiff does not present any factual detail regarding the alleged misrepresentations by Defendants, nor does Plaintiff distinguish between the Defendants in his Complaint. Id. Because Plaintiff's allegations fall well below the pleading standard set forth in Rule 9(b), Plaintiff's fraudulent misrepresentation claim is dismissed without prejudice.

Defendants also point out that Plaintiff's claim is barred by the applicable three-year statute of limitations. Defs' MTD at pg. 10. Plaintiff's Complaint includes the same conclusory statement regarding the equitable tolling under his fraudulent misrepresentation claim as he does under his federal claims, discussed above, which lacks the factual specificity to toll the limitations period. See Comp. at ¶ 11. More importantly, Plaintiff does not oppose Defendants' arguments regarding the statute of limitations in his Opposition. Plaintiff's failure to oppose Defendants' Motion to Dismiss on this basis serves as a concession that his claim is time-barred. Accordingly, Plaintiff's claim for fraudulent misrepresentation is dismissed with prejudice.

b. Breach of Fiduciary Duties

Plaintiff asserts that a fiduciary relationship existed between the Plaintiff and Defendants, and the "Defendants breached their fiduciary duties by inducing Plaintiff to enter into a mortgage transaction which was contrary to Plaintiff's . . ." 4stated intentions, interest, and "preservation of his home." Comp. at ¶¶ 116-117.

"The elements of a cause of action for breach of fiduciary duty are: 1) the existence of a fiduciary duty; 2) a breach of the fiduciary duty; and 3) resulting damage." Pellegrini v. Weiss, 165 Cal.App.4th 515, 524 (Cal. Ct. App. 6d 2008).

As Defendants point out, there is no fiduciary relationship between a debtor and creditor. See, e.g., Price v. Wells Fargo Bank, 213 Cal.App.3d 465, 476 (Cal. Ct. App. 1989) (citing Downey v. Humphreys, 102 Cal.App.2d 323, 332 (Cal. Ct. App. 1951)). Moreover, in the lending context, "a financial institution owes no duty of care to a borrower when the institution's involvement in the loan transaction does not exceed the scope of its conventional role as a mere lender of money." Nymark v. Heart Federal Savings & Loan Ass'n, 231 Cal.App.3d 1089, 1096 (Cal. Ct. App. 3d 1991).

As set forth in Plaintiff's complaint, the relationship between Plaintiff and Defendant is that of a debtor-creditor, which does not create a fiduciary relationship between the parties. Compare Comp. with Price v. Wells Fargo Bank, 213 Cal.App.3d 465 (Cal. Ct. App. 1989). Moreover, Plaintiff's Opposition does not save his claim, as he erroneously alleges that the actions of Defendants caused them to become fiduciaries. Opp. at pg. 13. Because Plaintiff has failed to plead facts demonstrating an essential element of a claim for breach of fiduciary duties, his claim is dismissed. See Eminence Capital, L.L.C. v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). Allowing Plaintiff leave to amend in this case would be futile, as it is clear from the Complaint and Plaintiff's Opposition that the relationship between Plaintiff and Defendants is a typical lender-debtor relationship.

Therefore, Plaintiff's claim for breach of fiduciary duty is dismissed with prejudice.

c. Unjust Enrichment

Plaintiff alleges that Defendants retained "benefits from their actions of charging a higher interest rate, fees, rebates, kickbacks, profits . . . and gains and other fees unrelated to the settlement services provided at closing," unjustly, and to Plaintiff's detriment. Comp. at ¶¶ 123-124.

As Defendants correctly point out, many California courts have made clear that "unjust enrichment is not a cause of action." Defs' MTD at pg. 11-12; see, e.g., Jogani v. Superior Court,165 Cal.App.4th 901, 911 (2008) (citing Melchior v. New Line Products, 106 Cal.App.4th 779, 793 (2003)). Additionally, under California law, it is well settled that an action based upon an implied-in-fact contract or quasi-contract cannot lie where there exists a valid express contract covering the same subject matter between the parties. Solano v. America's Servicing Company, 2011 WL 1669735 at *7 (E.D. Cal. May 3, 2011). Notably, Plaintiff does not present law to the contrary in his Opposition to demonstrate his claim for unjust enrichment is viable. See Opp. at pg. 14-15.

Because Plaintiff has pled an uncognizable claim, Defendants' Motion to Dismiss is granted and Plaintiff's claim for unjust enrichment is dismissed. It is clear that allowing amendment would be futile as to this claim, as it is not recognized under California law, and Plaintiff is not entitled to implied-in-fact or quasi-contract relief due to the relationship between the parties.

See Jogani, 165 Cal.App.4th at 911 (citing Melchior v. New Line Products, 106 Cal.App.4th 779, 793 (2003)). Accordingly, Plaintiff's claim for unjust enrichment is dismissed with 6 prejudice.

d. Civil Conspiracy

Plaintiff alleges Defendants engaged in a conspiracy to defraud the Plaintiff through "the commencement of foreclosure." Comp. at ¶¶ 129-131.

Defendants correctly assert that Plaintiff cannot maintain a cause of action for civil conspiracy, as "it is not an independent tort," which Plaintiff does not rebut in his Opposition. Defs' MTD at pg. 12-13; Opp. at pg. 10-12; see also Applied Equipment Corp. v. Litton Saudi Arabia, Ltd., 7 Cal.4th 503, 510-11 (1994) ("By its nature, tort liability arising from conspiracy presupposes that the coconspirator is legally capable of committing the tort, i.e., that he or she owes a duty to plaintiff recognized by law and is potentially subject to liability for breach of that duty.").

Because a cause of action for "civil conspiracy" is not cognizable, Defendants' Motion is to Dismiss is granted, and Plaintiff's claim for civil conspiracy is dismissed with prejudice.

Accord Von Brincken v. Mortgageclose, et al., 2011 WL 2621010 at *6 (E.D. Cal. June 30, 2011).

e. Civil RICO Violations

Plaintiff alleges that Defendants participated in a conspiracy through a pattern of racketeering activities, with multiple entities and parties which constituted a civil and criminal enterprise, designed to defraud Plaintiff, in violation of the civil Racketeer Influenced and Corrupt Organizations Act ("RICO").

Comp. at ¶¶ 135-139.

To properly plead a civil RICO claim for damages, a plaintiff must show that defendants, through two or more acts constituting a pattern, participated in an activity affecting interstate commerce. E.g., McAnelly v. PNC Mortgage, 2011 WL 318575 at *3 (E.D. Cal. Feb. 1, 2011). Moreover, Rule 9(b)'s heightened pleading requirement "applies to civil RICO fraud claims." Edwards v. Marin Park, Inc., 356 F.3d 1058, 1066 (9th Cir. 2004) (citing Alan Neuman Prods., Inc. v. Albright, 862 F.2d 1388, 1392 (9th Cir. 1989)).

Defendants correctly assert that Plaintiff's conclusory allegations regarding the alleged RICO violations fall well short of the Rule 9(b) particularity requirements. Defs' MTD at pg. 13-14; accord Edwards, 356 F.3d at 1066. Although Defendants argue this is a "single fraud perpetrated on a single victim," and clearly not a pattern of racketeering, the case cited by Defendants involved a ruling at the summary judgment phase. Defs' MTD at pg. 13-14 (citing California Architectural Bldg. Products, Inc. v. Franciscan Ceramics, Inc., et al., 818 F.2d 1466, 1469 (9th Cir. 1987)). Plaintiff's allegations lack any substantiating facts, and this Court cannot discern from Plaintiff's conclusory allegations whether or not there was a pattern of racketeering.

Accordingly, Defendants' Motion to Dismiss is granted, and Plaintiff's RICO claim is dismissed without prejudice.

f. Quiet Title

Plaintiff alleges that while Defendants may be the "owner of [an] asset-backed security . . . ," Plaintiff is the true owner of the subject property and is entitled to an order "clearing title of the purported subject mortgage encumbrance." Comp. at ¶¶ 158-162.

In order to plead a claim to quiet title, the complaint must 4state: (1) a legal description of the property; (2) the title of the plaintiff and the basis of the title; (3) the adverse claims to the title of the plaintiff; (4) the date as of which the determination is sought; and (5) a prayer for the determination of the title of the plaintiff against adverse claims. CAL. CIV. PROC. CODE § 761.020. Importantly, "[a] mortgagor cannot quiet his title against the mortgagee without paying the debt secured." Dyachishin v. America's Wholesale Lenders, 2010 WL 1525703 at *2 (E.D. Cal. April 15, 2010) (quoting Santos v. Countrywide Home Loans, 2009 WL 3756337 at *4 (E.D. Cal. Nov. 6, 2009)).

Defendants correctly assert that Plaintiff's complaint completely fails to present facts substantiating the requisite elements for a claim to quiet title, and Plaintiff has not alleged his ability to tender. Defs' MTD at pg. 14-15; accord Dyachishin, 2010 WL 1525703 at *2-3 (E.D. Cal. April 15, 2010). Accordingly, Defendants' Motion to Dismiss is granted, and Plaintiff's cause of action to quiet title is dismissed without prejudice.

g. Usury and Fraud

Plaintiff alleges Defendants participated in a scheme to "use Plaintiff's interest in the real property to collect interest in excess of the legal rate." Comp. at ¶ 169.

Plaintiff's fraud claims have been previously dismissed, above, and are therefore not considered again here.

The elements of a usury claim are: "(1) The transaction must be a loan or forbearance; (2) the interest to be paid must exceed the statutory maximum; (3) the loan an interest must be absolutely repayable by the borrower; and (4) the lender must have a willful intent to enter into a usurious transaction." See, e.g., Solano v.

America's Servicing Co., 2011 WL1669735 at *9 (E.D. Cal. May 3, 2011) (citing Chirardo v. Antonioli, 8 Cal.4th 791, 798 (1994)).

Moreover, "[a] loan that charges an interest rate greater than 10 percent per annum is usurious." Id. (citing 321 Henderson Receivables Origination LLC v. Sioteco, 173 Cal.App.4th 1059, 1076 (2009)).

As Defendants correctly assert, Plaintiff does not allege that the interest rate of his loan exceeded the maximum lawful rate, nor does Plaintiff provide any other facts supporting his claim for usury. Defs' MTD at pg. 15-16; accord Von Brincken v. Mortgageclose, et al., 2011 WL 2621010 at *6 (E.D. Cal. June 30, 2011). Moreover, Plaintiff's claim is barred by the applicable two-year statute of limitations, and Plaintiff has not alleged facts sufficient to toll the statute of limitations. Defs' MTD at pg. 16-17. Plaintiff failed to address Defendants' Motion to Dismiss his usury and fraud claim in his Opposition. This serves as a concession, and Plaintiff's claim for usury and fraud is therefore dismissed with prejudice.

h. Wrongful Foreclosure

Plaintiff alleges that Defendants improperly initiated the foreclosure process against the subject property. Comp. at ¶¶ 178-185.

Defendants correctly argue that they were either the "trustee, mortgagee, or beneficiary, or any of their authorized agents," and therefore were authorized under California law to initiate the foreclosure process. Defs' MTD at pg. 17-18. This is confirmed by the documents that were judicially noticed. Because Plaintiff's allegations are not plausible in light of the indisputable evidence, properly considered by this Court under Federal Rule of

Evidence 201, Defendants' Motion to Dismiss is granted and Plaintiff's wrongful foreclosure claim is dismissed with prejudice.

D. Motion to Expunge

Defendants also move to expunge the recorded lis pendens, 9 which is currently an encumbrance on the subject property. Defs' MTD at pg. 19-20. Plaintiff did not oppose this motion. Accordingly, the motion is granted.

III. ORDER

After carefully considering the papers submitted in this matter, it is hereby ordered that Defendant's Motion to Dismiss is GRANTED, as follows:

1. Plaintiff's claim for breach of security instrument under HOEPA is dismissed without prejudice;

2. Plaintiff's claim for violations of the Real Estate Settlement Procedures Act is dismissed without prejudice;

3. Plaintiff's claim for violations of the Truth in Lending Act is dismissed without prejudice;

4. Plaintiff's claim for violations of the Fair Credit Reporting Act is dismissed without prejudice;

5. Plaintiff's claim for fraudulent misrepresentation is dismissed with prejudice;

6. Plaintiff's claim for breach of fiduciary duties is dismissed with prejudice;

7. Plaintiff's claim for unjust enrichment is dismissed with prejudice;

8. Plaintiff's claim for civil conspiracy is dismissed with prejudice;

9. Plaintiff's claim for civil RICO violations is dismissed with prejudice;

10. Plaintiff's claim to quiet title is dismissed without prejudice;

11. Plaintiff's claim for usury and fraud is dismissed with prejudice;

12. Plaintiff's claim for wrongful foreclosure is dismissed with prejudice;

It is further ordered that Plaintiff shall ensure the recorded lis pendens is expunged within twenty (20) days of this order.

If Plaintiff wishes to file an Amended Complaint with respect to his breach of security instrument, Real Estate Settlement Procedures Act, Truth in Lending Act, Fair Credit Reporting Act, and quiet title claims, it must be filed within twenty (20) days of this Order. Otherwise, Plaintiff should file a notice of dismissal.

IT IS SO ORDERED.


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