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Craig A. Chan, et al v. Marc Corey Chancelor

November 28, 2011

CRAIG A. CHAN, ET AL.,
PLAINTIFF,
v.
MARC COREY CHANCELOR, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Hon. Anthony J. Battaglia U.S. District Judge

ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS PLAINTIFFS' FIRST AMENDED COMPLAINT [Docs. 216, 217, 218, 222, 225, 227, 228, 236]

Presently before the Court are eight motions to dismiss Plaintiffs' First Amended Complaint ("FAC"), filed by the following Defendants:

1. Citimortgage, Inc. ("Citi") (Doc. 216);

2. Wells Fargo Bank N.A., Wells Fargo Home Mortgage, and America's Servicing Company (collectively, "Wells Fargo") (Doc. 217);

3. Aurora Loan Services LLC ("Aurora") (Doc. 218);

4. SunTrust Mortgage, Inc. ("SunTrust") (Doc. 222);

5. Barclays Capital Real Estate Inc., sued as HomEq Serving Corp. ("HomEq") (Doc. 225)

6. The Grand Reserve at Kirkman Parke Condominium Association ("Grand Reserve") (Doc. 227);

7. Chase Home Finance LLC and JPMorgan Chase Bank, N.A. (collectively, "Chase") (Doc. 228); and

8. UBS AG ("UBS") (Doc. 236).

For the reasons discussed below, the Court GRANTS all eight motions to dismiss.

I. BACKGROUND

This case involves several dozen Plaintiffs and several dozen Defendants.*fn1 Plaintiffs are "individual consumers who were purchasing vacation properties in various developments sold in the South Florida area." (FAC ¶ 89.) Defendants allegedly "caused Plaintiffs to enter into predatory mortgage loans, which ultimately had no reasonable, tangible economic benefit for the Plaintiffs and have left them facing foreclosure." (Id.) Plaintiffs purchased the properties between April 2006 and July 2007. (Id. ¶ 110.)

Plaintiffs' FAC alleges thirteen causes of action: (1) Respondeat Superior, (2) Real Estate Settlement and Procedures Act ("RESPA"), (3) Truth in Lending Act ("TILA"), (4) Fair Debt Collection Practices Act and Rosenthal Fair Debt Collection Practices Act ("FDCPA"), (5) Fraud, (6) Civil Conspiracy, (7) Negligent Misrepresentation, (8) Breach of Fiduciary Duties, (9) Aiding and Abetting Breach of Fiduciary Duties, (10) Aiding and Abetting Fraud, (11) Conversion, (12) Injunctive Relief, and (13) Declaratory Relief. Defendants filed the instant motions to dismiss between August and September 2010.*fn2

II. LEGAL STANDARD

A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the pleadings, and allows a court to dismiss a complaint upon a finding that the plaintiff has failed to state a claim upon which relief may be granted. See Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). The court may dismiss a complaint as a matter of law for: (1) "lack of cognizable legal theory," or (2) "insufficient facts under a cognizable legal claim." SmileCare Dental Grp. v. Delta Dental Plan of Cal., 88 F.3d 780, 783 (9th Cir. 1996) (citation omitted). However, a complaint survives a motion to dismiss if it contains "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

Notwithstanding this deference, the reviewing court need not accept "legal conclusions" as true. Ashcroft v. Iqbal, -- U.S. -- , 129 S. Ct. 1937, 1949--50, 173 L.Ed.2d 868 (2009). It is also improper for the court to assume "the [plaintiff] can prove facts that [he or she] has not alleged." Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). On the other hand, "[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Iqbal, 129 S.Ct. at 1929. The court only reviews the contents of the complaint, accepting all factual allegations as true, and drawing all reasonable inferences in favor of the nonmoving party. al-Kidd v. Ashcroft, 580 F.3d 949, 956 (9th Cir. 2009) (citations omitted).

III. DISCUSSION

As a general matter, Defendants contend that the FAC lacks specificity, and in many instances, it is entirely unclear how any particular Defendant was involved in the alleged wrongdoing. The Court agrees that the FAC is vague and conclusory in numerous respects. Without more specific facts, it appears devoid of any merit or substance with regard to these Defendants. Additionally, the Court notes that because Plaintiffs have failed to allege that they tendered the amounts due on the loans in question prior to filing their lawsuit, they are barred from bringing this action. See, e.g., Arnolds ...


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