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Lars Aspenlind v. Spartan Mortgage Services

November 10, 2011

LARS ASPENLIND, PLAINTIFFS,
v.
SPARTAN MORTGAGE SERVICES, ET AL., DEFENDANTS.



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

FINDINGS AND RECOMMENDATIONS

Presently pending before the court is defendants Seville Equities, Sutherland and Gray's ("Moving Defendants") motion to dismiss, filed March 14, 2011.*fn1 By order of August 9, 2011, plaintiff was directed to file and serve an opposition to this motion, addressing only the federal claims. The moving defendants were directed to file a reply responding only to the federal claims, which contained proper briefing including legal authority and factual analysis. The opposition and reply have been submitted, and plaintiff has filed a response to the reply.*fn2

Having now reviewed the filings pertinent to the motion to dismiss, the court issues the following findings and recommendations.

BACKGROUND

Presently before the court is the second amended complaint, filed March 4, 2011, and approved nunc pro tunc by order of August 9, 2011. The second amended complaint alleges that defendants evicted plaintiff from his home in a "plot to foreclose, cheat plaintiff and evict plaintiff out of his property in order to conceal the illegal gains obtained from the predatory lending enterprise scheme." (SAC at 2.) Plaintiff claims that he refinanced the mortgage on his primary residence in March, 2010 through Spartan Mortgage Services ("Spartan"). (SAC ¶¶ 17, 18.) He alleges that various defendants failed or refused to provide him with certain disclosures as required by law. (Id. at pp. 5-6.) The second amended complaint asserts that on December 6, 2010, plaintiff rescinded the note, which resulted in defendant Sutherland fraudulently perfecting the sale. (Id. at ¶ 46.) According to the second amended complaint, on December 7, 2010, defendants Spartan and Red Shield Servicing ("RSS") foreclosed the loan, and failed to comply with federal law when the sale was perfected. (Id. at ¶¶ 47, 48.)

The second amended complaint also contains claims against North American Title Company; Seville Equities, LLC, the purchaser of the note; Richard Gray, an attorney who prosecuted the unlawful detainer proceeding against plaintiff; David Kindopp, the mortgage broker for the subject transaction; and California Moving Company (named in the caption of the SAC as "Auburn Moving Company"), which allegedly removed plaintiff's belongings from his home without authorization. Plaintiff seeks rescission of the loan and damages.

DISCUSSION

I. LEGAL STANDARD - Failure to State a Claim*fn3

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).

A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity to amend, unless the complaint's deficiencies could not be cured by amendment. See Noll ...


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