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Lilia Kryvoshey v. American Brokers Conduit

October 14, 2011


The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge


Previously pending on this court's law and motion calendar for October 13, 2011, were defendant Default Resolution Network's ("Default Resolution") motion to dismiss or for more definite statement, by filed September 2, 2011, and defendants Power Default Services, Inc., f/k/a AHMSI Default Services, Inc., ("Power Default"), Deutsche Bank National Trust Company as Trustee for American Home Mortgage Assets Trust 2006-5 Mortgage-backed Pass-Through Certificates, Series 2006-5, ("Deutsche Bank") and Mortgage Electronic Registration System, Inc.'s ("MERS"), motion to dismiss, filed September 7, 2011. Plaintiff has filed an opposition to defendant Default Resolution's motion only, and did not appear at the hearing. Carl Paganelli appeared for Default Resolution. Euphemia Thomopulos represented the remaining defendants. For the reasons set forth herein, defendants' motions should be granted.


Plaintiff filed this action in state court on June 2, 2011, and defendants removed it to the Northern District on July 6, 2011. The action was then transferred to this court on August 19, 2011. This is a typical foreclosure action wherein plaintiff alleges that "defendants failed to follow the simple legal requirements for transfer of a negotiable instrument and an interest in real property." (Compl. ¶ 32.) Plaintiff alleges that defendant American Brokers Conduit, the wholesale Division of American Home Mortgage Investment Corporation ("American") misrepresented the elements of the agreement when she financed the purchase of her principal dwelling on August 7, 2006. (Id. at ¶¶ 9, 43.) She further alleges that she did not receive the required documents and disclosures at the time the loan was consummated. (Id. at ¶ 59.) As a result, no interest in her mortgage, deed of trust, or property was legally transferred to defendants. (Id. at ¶ 33.) The complaint also alleges that defendants had no authority to conduct the foreclosure, which was carried out without "rights under the law." (Id. at ¶ 39, 61.) Each defendant is alleged to be the agent and employee of all other defendants, and ratified the conduct of the others. (Id. at ¶ 29.) It is further alleged that defendants not only acted without authorization under the law in foreclosing upon the property, but that they "fraudulently added costs and charges to the payoff amount of the note that were not justified or proper under the terms of the note or law." (Id. at ¶ 61.)

According to defendants, the Deed of Trust was recorded on August 15, 2006. (Def.'s RJN, filed September 2, 2011, Ex. A.) Plaintiff defaulted on the note, and a notice of default was recorded by Default Resolution on March 16, 2009. (Compl., Ex. 1.) Defendant AHMSI issued notices of trustee sale on June 16 and July 10, 2009. (Id., Exs. 3, 4.) On February 20, 2011, Power Default was substituted as trustee. (Id., Ex. 6.) On February 24, 2011, the Deed of Trust was assigned to Deutsche Bank. (Id., Ex. 9.) Another notice of trustee sale was issued on May 17, 2011, (Id., Ex. 7), but the scheduled sale of June 13, 2011, apparently was put on hold. (Default Resolution's Mot. at 5.) Plaintiff's Chapter 7 bankruptcy filing was dismissed on July 1, 2011. (RJN, Ex. B.)

The complaint contains claims for violations of the Truth in Lending Act, Real Estate Settlement Procedures Act, California's Rosenthal Act, and for negligence, breach of fiduciary duty, fraud, violation of Cal. Bus. & Prof. Code § 17200, and breach of implied covenant of good faith and fair dealing. Plaintiff seeks declaratory and injunctive relief, and compensatory and punitive damages.


I. Legal Standard - Motion to Dismiss

In order to survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004). "[A] complaint must contain sufficient factual matter, accepted as true, 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, 127 S.Ct. 1955). "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." Id.

In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740, 96 S. Ct. 1848, 1850 (1976), construe the pleading in the light most favorable to the party opposing the motion and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S. Ct. 1843, 1849, reh'g denied, 396 U.S. 869, 90 S. Ct. 35 (1969). The court will "'presume that general allegations embrace those specific facts that are necessary to support the claim.'" National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 256, 114 S.Ct. 798, 803 (1994), quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S. Ct. 2130, 2137 (1992). Moreover, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 596 (1972).

The court may consider facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider facts which may be judicially noticed, Mullis v. United States Bankruptcy Ct., 828 F.2d 1385, 1388 (9th Cir. 1987); and matters of public record, including pleadings, orders, and other papers filed with the court, Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986). The court need not accept legal conclusions "cast in the form of factual allegations." Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

II. Motions to Dismiss*fn1

Both motions raise various grounds for dismissal. Only those grounds which pertain to the federal claims will be addressed here. The TILA and RESPA claims are alleged only against ...

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