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Carolina Johnson and Claude v. Bank United

October 7, 2011

CAROLINA JOHNSON AND CLAUDE
PLAINTIFFS,
v.
BANK UNITED,
DEFENDANT.



The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER GRANTING IN PART AND DENYING IN PART BANK UNITED'S MOTION TO DISMISS FIRST AMENDED COMPLAINT AND DENYING MOTION FOR A MORE DEFINITE STATEMENT

Defendant Bank United ("Bank United") moves for dismissal of Plaintiffs' First Amended Complaint ("FAC") under Federal Rule of Civil Procedure ("Rule") 12(b)(6), arguing it fails to state a claim upon which relief can be granted. Bank United seeks in the alternative a more definite statement of the allegations in the FAC under Rule 12(e). However, because of the rulings below, only the 12(b)(6) motion is addressed since only Plaintiff's violation of California Civil Code section 2923.5 claim survives Bank United's 12(b)(6) motion and, as to that claim, Defendant has not shown a more definite statement is required. Therefore, Defendant's motion for a more definite statement is denied.

I. LEGAL STANDARD

To avoid having a complaint dismissed under Rule 12(b)(6), a plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). "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." Ashcroft v. Iqbal, --- U.S. ----, 129 S. Ct. 1937, 1949 (2009). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Moss v. United States Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quoting Iqbal, 129 S. Ct. at 1951).

When determining whether a claim has facial plausibility, "[w]e accept as true all well-pleaded allegations of material fact, and construe them in the light most favorable to the non-moving party." Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010). However, this "tenet . . . is inapplicable to legal conclusions." Iqbal, 129 S. Ct. at 1949. "A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.' Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Id. (quoting Twombly, 550 U.S. at 555, 557).

"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." Moss, 572 F.3d at 969 (quoting Twombly, 550 U.S. at 557).

II. REQUEST FOR JUDICIAL NOTICE

Bank United seeks to support its dismissal motion with the following documents of which it requests judicial notice be taken of the following bankruptcy court documents: Plaintiff's Chapter 13 Bankruptcy Petition, which was filed on October 13, 2010 in the United State Bankruptcy Court, Eastern District of California, and a copy of the docket for that action which was printed on February 28, 2011. (Def.'s Req. for Judicial Notice ("RJN") Ex. 11.) This request is granted.

Bank United also requests that judicial notice be taken of five documents recorded with the El Dorado County Recorder: a Deed of Trust recorded on December 15, 2005; an Assignment of Deed of Trust recorded on February 8, 2010; a Substitution of Trustee recorded on February 8, 2010; a Notice of Default and Election to Sell under Deed of Trust, recorded on February 8, 2010; and a Notice of Trustee's Sale recorded on August 9, 2010. (Mot. 9:3-9; ECF No. 4, Exs. 3, 6-9.) Since these documents are publically recorded, they may be judicially noticed and the request is granted. See W. Fed. Sav. & Loan Ass'n v. Heflin Corp., 797 F. Supp. 790, 792 (1992) (taking judicial notice of documents in a county's public record, including deeds of trust).

III. BACKGROUND

Plaintiffs allege in their FAC that they are "the owners and purchasers of real property located at 4100[ B]estafa Court, Placerville, California[.]" (FAC ¶ 1.) They purchased their home in or about 1999, and "refinance[d] their home" with Bank United F.S.B. in 2005 (the "subject loan"). Id. ¶¶ 14-17; ECF No. 4, Ex. 3. The subject loan was memorialized in a Promissory Note secured by a Deed of Trust on the property. (ECF No. 4, Ex. 3.) This Deed of Trust identified Bank United F.S.B. as the lender and Esther Santos, SR VP of National Bank Operations, Bank United F.S.B., as the trustee. Id.

An Assignment of Deed of Trust dated January 8, 2010, assigned and transferred to Bank United "all beneficial interest under [the] Deed of Trust dated 12-06-2005, executed by [Plaintiffs] Claude Colwell and Carolina Johnson[.]" Id. Ex. 6. Bank United substituted Robert E. Weiss, Incorporated, as trustee of the Deed of Trust on February 3, 2010. Id. Ex. 7. Both the Assignment of the Deed of Trust and Substitution of Trustee were recorded with the El Dorado County Recorder on February 8, 2010. Id. Exs. 6-7.

Plaintiffs allege Bank United improperly initiated foreclosure activities against them when it did not have the power and right to foreclose on their property and "Plaintiff cannot ascertain who is the true 'beneficiary' and proper 'enforcer' of the ...


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