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Olga Urista v. Bank of America

January 3, 2012


The opinion of the court was delivered by: Howard R. Lloyd United States Magistrate Judge

** E-filed January 3, 2012 **



United States District Court For the Northern District of California

Plaintiff Olga Urista filed the instant action in Santa Clara County Superior Court for alleged 18 predatory lending practices in connection with her home mortgage. The original complaint asserted 19 a claim for violation of the Truth in Lending Act (TILA), 15 U.S.C. § 1601, et seq., as well as 20 several state law claims for relief. Defendants Bank of America, N.A., BAC Home Loans Servicing 21 LP, and Edrina Pavel (collectively "Bank of America") removed the matter here, asserting federal 22 question jurisdiction. Defendant CalCounties consented to the removal. 23

All parties have expressly consented that all proceedings in this action may be heard and 24 finally adjudicated by the undersigned. 28 U.S.C. § 636(c); Fed. R. Civ. P. 73. Pursuant to 25 Fed.R.Civ.P 12(b)(6), both defendants, Bank of America and CalCounties, filed motions to dismiss 26 the original complaint, which the court granted on October 18, 2011. See Dkt. No. 52. Plaintiff 27 timely filed her First Amended Complaint ("FAC"), which added two new claims for relief for 28 negligence and violation of the covenant of good faith and fair dealing and added a defendant, the Federal Home Loan Mortgage Corporation ("Freddie Mac"). Dkt. No. 54. Plaintiff asserts that she 2 served Freddie Mac with the FAC on November 3, 2011, but no certificate of service has been filed 3 and Freddie Mac has not answered the FAC or otherwise appeared in this action. See Dkt. No. 72, p. 3. CalCounties and the Bank of America defendants now move to dismiss the FAC and to strike 5 portions of the FAC. Dkt. Nos. 63, 65. Plaintiff has opposed the motions. 6

7 claim for relief is not sufficiently pled as to any of the defendants, and that plaintiff cannot plead a 8 tolling of the statute of limitations, and so GRANTS the Bank of America defendants' motion to 9 dismiss the TILA claim without leave to amend. Further, the court GRANTS both motions to 10 dismiss as to the state claims, with leave to amend. The court DENIES the Bank of America defendants' Motion to Strike, DENIES their Request for Judicial Notice, and DENIES defendant Calcounties' Motion to Strike. 13

On motion, a court may dismiss a complaint for failure to state a claim. FED. R. CIV. P. 12(b)(6). The federal rules require that a complaint include a "short and plain statement" showing 16 the plaintiff is entitled to relief. FED. R. CIV. P. 8(a)(2). The statement must "raise a right to relief 17 above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 55 (2007). However, only 18 plausible claims for relief will survive a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 129 19 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009). A claim is plausible if its factual content "allows the 20 court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 21 1949. A plaintiff does not have to provide detailed facts, but the pleading must include "more than 22 an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. at 1950. 23

Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002). The factual 25 allegations pled in the complaint must be taken as true and reasonable inferences drawn from them 26 must be construed in favor of the nonmoving party. Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 27 Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987)). However, the court cannot assume that "the Upon consideration of the moving papers and oral argument, the court finds that the TILA


In deciding a motion to dismiss, the court is ordinarily limited to the face of the complaint.

337-38 (9th Cir. 1996); Mier v. Owens, 57 F.3d 747, 750 (9th Cir. 1995) (citing Usher v. City of

[plaintiff] can prove facts which [he or she] has not alleged." Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). "Nor is the 3 court required to accept as true allegations that are merely conclusory, unwarranted deductions of 4 fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001) (citing Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994)),amended on 6 other grounds by 275 F.3d 1187 (9th Cir. 2001).

15(a)(2). "'Four factors are commonly used to determine the propriety of a motion for leave to 9 amend. These are: bad faith, undue delay, prejudice to the opposing party, and futility of 10 amendment.'" Ditto v. McCurdy, 510 F.3d 1070, 1079 (9th Cir. 2007) (internal citations omitted).

"Futility of amendment can, by itself, justify the denial of a motion for leave to amend." Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995). An amendment would be "futile" if there is no set of 13 facts can be proved which would constitute a valid claim or defense. See Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988). 15


A. Plaintiff's Sixth Claim under the Federal Truth in Lending Act ("TILA"), 15 U.S.C. § 1640 et seq. Against Bank of America Defendants Plaintiff brings a claim for TILA violations against the Bank of America defendants only.

The FAC does not clarify what specific TILA violations have occurred, nor does it clearly state 21 what type of relief is sought. Defendants argue that Urista has failed to plead a tolling of the relevant ...

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