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Vaivase Tuimalealiifano; Lemusu Tuimalealiifano v. First Magnus Financial Group; Community Bank of Nevada; Aurora Loan

October 28, 2011


The opinion of the court was delivered by: Dean D. Pregerson United States District Judge



This matter comes before the court on a motion to dismiss filed by Defendant Aurora Loan Services LLC ("Defendant"). After reviewing the materials submitted by the parties and considering the arguments therein, the court GRANTS the motion and adopts the following order.


On September 23, 2005, Plaintiff Vaivase Tuimalealiifano ("Plaintiff") obtained a loan from Defendant First Magnus Financial Group, secured by a deed of trust on the subject property at 172 W. Market St., Long Beach, CA 90805 ("Property"). (Def.'s Req. for Judicial Notice in Supp. of Mot. to Dismiss ("RJN"), Ex. 1 at 4.) On October 9, 2009, Quality Loan Service Corp. ("Quality Loan") recorded a notice of default on the loan. (RJN, Ex. 2.) On January 12, 2010, Quality Loan recorded a Notice of Trustee's Sale for the Property, noticing a sale on February 1, 2010. (RJN, Ex. 3.)

Plaintiffs allege that Defendant acquired the Property at a March 1, 2010 trustee's sale, but then executed a Notice of Rescission of Trustee's Deed Upon Sale - ostensibly based on "the filing of Bankruptcy by [Plaintiff]," which Plaintiffs claim never happened. (Compl. ¶¶ 28-30.) Afterwards, Defendant allegedly entered into a HAMP Trial Payment Plan with Plaintiff, as well as a subsequent "repayment (forbearance) plan." According to Plaintiffs, Defendant refused to convert the trial payment plan into a permanent modification, despite Plaintiff's making the required payments. (Compl. ¶ 31.) The Property ultimately reverted to Defendant at a trustee's sale on November 18, 2010. (RJN, Ex. 4.)

On April 22, 2011, Plaintiffs brought suit against Defendants in state court, asserting sixteen causes of action and seeking rescission, damages, and other relief, based on alleged misconduct by Defendants throughout the loan origination, modification, and foreclosure process. On July 25, 2011, Defendant removed the action to federal court, based on subject matter, supplemental, and diversity jurisdiction. (Notice of Removal ¶¶ 4-11.) Defendant then filed this Motion to Dismiss Plaintiffs' Complaint on August 1, 2011, pursuant to Federal Rule of Civil Procedure 12(b)(6).*fn1


Pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint is subject to dismissal when the plaintiff's allegations fail to state a claim upon which relief can be granted. When considering a 12(b)(6) motion to dismiss for failure to state a claim, "all allegations of material fact are accepted as true and should be construed in the light most favorable to [the] plaintiff." Resnick v. Hayes, 213 F.3d 433, 447 (9th Cir. 2000).

In Ashcroft v. Iqbal, the Supreme Court explained that a court considering a 12(b)(6) motion should first "identify[] pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." 129 S. Ct. 1937, 1950 (2009). Next, the court should identify the complaint's "well-pleaded factual allegations, . . . assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) ("In sum, for a complaint to survive a motion to dismiss, the nonconclusory factual content, and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." (internal quotation marks omitted)).


Defendant seek to dismiss Plaintiffs' claims on a number of grounds, including Plaintiff's failure to tender, relevant statutes of limitations, and Defendant's non-involvement in the loan's origination. Plaintiffs respond by requesting leave of the court to amend their complaint.

Plaintiffs filed their initial, sixty-nine page complaint in pro per. The complaint is difficult to understand and provides few specific facts. Instead, it largely lists statutes and definitions, with generalized and conclusory allegations. The complaint therefore fails to meet the minimum pleading requirements of Rule 8 of the Federal Rules of Civil Procedure. See, e.g., Bell Atl. Corp. v. Twombly, 550 U.S. 544, 553-55 (2007); Bautista v. L.A. County, 216 F.3d 837, 840 (9th Cir. 2000); Yamaguchi v. U.S. Dep't of the Air Force, 109 F.3d 1475, 1481 (9th Cir. 1997). To the extent Plaintiffs allege fraud on the part of Defendants, they also fail to meet the more stringent requirements of Rule 9(b). See, e.g., Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003); Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir. 1997). The court therefore dismisses Plaintiffs' complaint on these grounds.

The court is not convinced, however, that all of Plaintiffs' claims - if properly plead - would fail as a matter of law. In particular, Plaintiffs appear to allege that: (1) Defendants entered into a loan modification agreement; (2) Plaintiffs then made the required payments; but (3) Defendants still foreclosed on the Property, in violation of the modification agreement.*fn2 (Compl. ΒΆ 31.) Depending on the specific facts, Plaintiffs might thereby make out a claim for relief that would not be time-barred or subject to the tender requirement. See, e.g., Aceves v. U.S. Bank, N.A., 192 Cal. App. 4th 218, 225-31 (2011); Wolf v. Wells Fargo Bank, N.A., No. C11--01337, 2011 WL 4831208 at *4, *7-10 (N.D. Cal. Oct. 12, 2011); Park v. U.S. Bank Nat'l Ass'n, No. 10cv1546, 2011 WL 4102211 at *9-12, *15 (S.D. Cal. Sept. 13, 2011); Esoimeme v. Wells Fargo Bank, No. CIV S--10--2259, 2011 WL 3875881 at *12 (E.D. Cal. Sept. 1, 2011); Das v. WMC Mortgage Corp., No. C10-0650, 2010 WL 4393885 at *2-3, *5-7 (N.D. Cal. Oct. 29, 2010); Del ...

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