MEMORANDUM AND ORDER RE: MOTION TO DISMISS
Plaintiff Lorna Delores Thompson brings this action against defendants Residential Credit Solutions, Inc. ("RCS"), American Brokers Conduit ("ABC"), a division of American Home Mortgage Investment Corporation ("AHMIC"), Merscorp, Inc. ("Merscorp"), dba Mortgage Electronic Registration System, Inc. ("MERS") as nominee for American Brokers Conduit, and American Home Mortgage Servicing, Inc. ("AHMSI"), arising from defendants' allegedly wrongful conduct related to a residential loan. RCS and Merscorp now move to dismiss the First Amended Complaint ("FAC") for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). (Docket No. 5.)
I. Factual and Procedural Background
In July of 2007, plaintiff purchased her residence at 2220 Cobblestone Avenue in Fairfield, California ("the property"), with a loan she obtained from American Brokers Conduit. (FAC ¶ 1.) On June 8, 2009, a Notice of Default was filed against the property after plaintiff had accrued a total default of at least $17,654.25. (Request for Judicial Notice ("RJN"), Ex. 3.) Beginning in June 2010, plaintiff was placed on a modified monthly trial program by AHMIC. (FAC ¶ 17.) On October 18, 2010, a Notice of Rescission of Notice of Default was recorded. (RJN Ex. 4.) After plaintiff's delinquency increased to $62,437.88, a second and operative Notice of Default was recorded on April 4, 2011. (Id. Ex. 5.) The Notice of Default included a declaration stating that:
The undersigned mortgagee, beneficiary or authorized agent for the mortgagee or beneficiary pursuant to California Civil Code § 2923.5(b) declares that the mortgagee, beneficiary or the mortgagee's or beneficiary's authorized agent has either contacted the borrower or tried with due diligence to contact the borrower as required by California Civil Code 2923.5. (Id.) On July 5, 2011, the National Default Servicing Corp. ("NDSC") was substituted as trustee under the Deed of Trust. (Id. Ex. 7.) The same day, NDSC recorded a Notice of Trustee's Sale setting the foreclosure sale for July 26, 2011. (Id. Ex. 8.) The foreclosure sale is currently on hold pending the resolution of this litigation. (Mot. to Dismiss at 2:5-17.)
On July 18, 2011, plaintiff filed her FAC in the Superior Court of California, County of Solano. On August 25, 2011, defendants removed the case to this court based on diversity of citizenship. The FAC alleges claims against defendants for: (1) wrongful foreclosure under California Civil Code section 2923.5; (2) breach of contract; (3) implied covenant of good faith and fair dealing; (4) promissory estoppel; and (5) declaratory and injunctive relief.
A court may take judicial notice of facts "not subject to reasonable dispute" because they are either "(1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201. The court may take judicial notice of matters of public record or of documents whose contents are alleged in the complaint and whose authenticity is not questioned. Lee v. City of L.A., 250 F.3d 668, 688-89 (9th Cir. 2001).
Residential Credit Solutions and Merscorp have filed a request for judicial notice in support of their motion to dismiss which contains eleven exhibits: (1) a copy of the Grant Deed, recorded in Solano County on July 10, 2007; (2) a copy of the Deed of Trust, recorded in Solano County on July 10, 2007; (3) a copy of the Notice of Default and Election to Sell Under Deed of Trust, recorded in Solano County on June 8, 2009; (4) a copy of the Notice of Rescission, recorded in Solano County on October 18, 2010; (5) a copy of the Notice of Default and Election to Sell Under Deed of Trust, recorded in Solano County on April 4, 2011; (6) a copy of the Corporation Assignment of Deed of Trust, recorded in Solano County on May 3, 2011; (7) a copy of the Substitution of Trustee, recorded in Solano County on July 5, 2011; (8) a copy of the Notice of Trustee's Sale, recorded in Solano County on July 5, 2011; (9) a copy of the Declaration of Plaintiff Lorna Thompson; (10) a copy of the Declaration of Plaintiff Andrea Wheatley; and (11) a copy of Plaintiff's exhibits 1, 3, 4, and 7 offered in support of Order to Show Cause and Temporary Restraining Order Prohibiting Sale from the state court proceedings.
The court will take judicial notice of defendants' first eight exhibits, as they are matters of public record whose accuracy cannot be questioned. See Lee, 250 F.3d at 689. The court will not take judicial notice of exhibits nine through eleven and the facts contained within them because they are not beyond reasonable dispute.
On 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). "To survive a motion to dismiss, 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, 556 U.S. 662, ---, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This "plausibility standard," however, "asks for more than a sheer possibility that a defendant has acted unlawfully," and "[w]here a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 556-57).
A. Wrongful Foreclosure Under California Civil Code Section 2923.5
Plaintiff contends that defendants failed to comply with the communication requirements set forth in California Civil Code section 2923.5. Section 2923.5(a)(2) requires a "mortgagee, beneficiary or authorized agent" to "contact the borrower in person or by telephone in order to assess the borrower's financial situation and explore options for the borrower to avoid foreclosure." Section 2923.5(b) requires a default notice to include a declaration "from the mortgagee, beneficiary, or authorized agent" of compliance with section 2923.5, including attempt "with due diligence to contact the borrower as required by this section."*fn1
To allege a claim under section 2923.5, the complaint must contain "allegations that [the lender or servicer] participated in the notice of default or notice of trustee sale and . . . identify who issued and recorded the notice of default." Spencer v. DHI Mortg. Co., Ltd., 642 F. Supp. 2d 1153, 1167 (E.D. Cal. 2009). Plaintiff fails to allege that RCS or Merscorp participated in or recorded the Notice of Default. The FAC only contains allegations under this cause of action against AHMIC and JP Morgan Chase, who is not even a party in this action. (FAC ¶¶ 49-52.) Plaintiff's pleadings are insufficient to state a cause of ...