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Ozstar De Jourday v. Jp Morgan Chase Bank

December 16, 2011

OZSTAR DE JOURDAY,
PLAINTIFF,
v.
JP MORGAN CHASE BANK, N.A., ETC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Honorablelarryalanburns United States District Judge

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

De Jourday filed this action to set aside the foreclosure of his home and to enjoin JP Morgan from initiating an unlawful detainer action against him.

I. Factual Background

In December, 2006 De Jourday borrowed money from Washington Mutual Bank to buy a home in La Jolla. The loan was secured by a deed of trust on the home, and the deed identified Washington Mutual as the lender. (Dkt. Nos. 8-2, 8-3.) At some point in 2009, De Jourday fell behind on his loan payments, and on September 30, 2009 a notice of default was recorded. (Dkt. No. 8-5.) That notice informed De Jourday that his past due payments totaled $96,369.27 as of September 29, 2009. It also instructed him to contact JP Morgan Chase Bank-not Washington Mutual, his lender-with any questions about the amount due or to arrange for payment to stop a foreclosure.

Several months later, on April 28, 2010, a notice of trustee's sale was recorded. (Dkt. No. 8-6.) It informed De Jourday that on May 27, 2010 Washington Mutual-not JP Morgan-would sell his home at a public auction to highest bidder. At this point, with the loss of his home imminent, De Jourday attempted to negotiate a loan modification with JP Morgan. He failed, and then unsuccessfully filed for bankruptcy under Chapter 11 and Chapter 13. He then filed for bankruptcy under Chapter 7 on December 30, 2010. On January 5, 2011, De Jourday's home was sold to JP Morgan in a public auction.*fn1 (Dkt. No. 8-7.) The trustee's deed upon sale listed the unpaid debt with costs as $2,125,532.28 and the sale price as $1,204,200.00.

On February 4, 2011, De Jourday's Chapter 7 counsel sent to JP Morgan a qualified written request pursuant to the Real Estate Settlement Procedures Act requesting proof of JP Morgan's right to title of De Jourday's home. (Dkt. No. 8-9.) De Jourday alleges in his complaint that JP Morgan "did not respond and in fact denied any obligation to respond." (Compl. ¶ 17.) On February 25, 2011, JP Morgan sought relief from the stay in De Jourday's bankruptcy case, which was granted on March 25, 2011 over De Jourday's objection that JP Morgan had to produce evidence of its right to title. (Compl. ¶ 18.)

II. Claims

De Jourday asserts two claims against JP Morgan. The first claim alleges that JP Morgan violated RESPA by not responding to De Jourday's qualified written request. Rather than respond, De Jourday alleges, JP Morgan filed a motion for relief from De Jourday's bankruptcy stay, which De Jourday incurred legal fees opposing, in which it denied any obligation to respond. The second claim alleges that the foreclosure and sale of De Jourday's home was wrongful. The legal authority for this claim is unspecified, but the stated bases for it are threefold: (1) De Jourday "has never received any notice from JP Morgan that the mortgage he held with WAMU was purchased and assigned to JP Morgan"; (2) JP Morgan "willfully refused to work with Plaintiff in modifying his loans with the intent to sell the Property at auction"; and (3) De Jourday's home was sold for "a grossly inadequate price." (Compl. ¶¶ 26--27.)

III. Legal Standard

A rule 12(b)(6) motion to dismiss for failure to state a claim challenges the legal sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In considering such a motion, the Court accepts all allegations of material fact as true and construes them in the light most favorable to De Jourday. Cedars-Sinai Med. Ctr. v. Nat'l League of Postmasters of U.S., 497 F.3d 972, 975 (9th Cir. 2007). To defeat a 12(b)(6) motion, a complaint's factual allegations needn't be detailed, but they must be sufficient to "raise a right to relief above the speculative level . . . ." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). However, "some threshold of plausibility must be crossed at the outset" before a case can go forward. Id. at 558 (internal quotations omitted). 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." Ashcroft v. Iqbal, 556 U.S. -, 129 S.Ct. 1937, 1949 (2009). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id.

While the Court must draw all reasonable inferences in De Jourday's favor, it need not "necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) (internal quotations omitted). In fact, the Court does not need to accept any legal conclusions as true. Iqbal, 129 S.Ct. at 1949. A complaint does not suffice "if it tenders naked assertions devoid of further factual enhancement" (Id. (internal quotations omitted)), nor if it contains a merely formulaic recitation of the elements of a cause of action. Bell Atl. Corp., 550 U.S. at 555.

IV. Discussion

The Court will address De Jourday's claims ...


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