The opinion of the court was delivered by: Irma E. Gonzalez United States District Judge
(1) GRANTING IN PART DEFENDANT DEUTSCHE BANK'S MOTION TO DISMISS, [Doc. No. 6];
(2) REMANDING STATE LAW CLAIMS; and
(3) DENYING AS MOOT DEFENDANT MTC FINANCIAL'S MOTION TO DISMISS, [Doc. No. 5].
Presently before the Court are two motions to dismiss, brought by: (1) Defendant MTC Financial Inc., dba Trustee Corps ("MTC Financial"), [Doc. No. 5]; and (2) Defendants Deutsche Bank National Trust Company as Trustee for DSLA Mortgage Loan Trust 2004-AR4 and Central Mortgage Company (collectively, "Deutsche Bank"), [Doc. No. 6]. Plaintiff David Loudon filed an opposition to each motion. Having considered the parties' arguments, and for the reasons set forth below, the Court GRANTS IN PART Deutsche Bank's motion to dismiss, REMANDS the state law claims, and DENIES AS MOOT MTC Financial's motion to dismiss.
Plaintiff is the owner of real property located at 12717 Benavente Way, San Diego, CA 92129 ("Property"). On November 8, 2004, he took out a loan in the amount of $516,000.00 with Downey Savings and Loan Association, F.A., secured by a promissory note and a deed of trust on the Property. (Compl., Ex. A [Doc. No. 1].) The Deed of Trust listed DSL Service Company as the "trustee." (Id.) On December 13, 2005, Downey assigned the Deed of Trust and the promissory note to Mortgage Electronic Registration Systems, Inc. ("MERS"). (Defendant MTC Financial's RJN, Ex. B [Doc. No. 5-2].) The assignment was recorded on December 29, 2005. (Id.) On November 15, 2010, MERS assigned all of the beneficial interest under the Deed of Trust to Deutsche Bank. (Id., Ex. C.) This assignment was recorded on December 3, 2010. (Id.)
On December 7, 2010, Deutsche Bank mailed a Notice of Default and Election to Sell under Deed of Trust to Plaintiff, indicating that Plaintiff was in default and that the amount in arrears as of that date was $33,784.04. (Id., Ex. D.) Attached to the Notice of Default was a Declaration per CA Civil Code Section 2923.5, indicating that the servicer attempted to contact Plaintiff as required by § 2923.5 by sending a first-class letter to Plaintiff's last known mailing address and by attempting to contact Plaintiff by telephone at least 3 times at 3 different hours on 3 different days. (Id.) The Notice of Default was recorded on December 13, 2010. (Id.)
On August 18, 2011, Deutsche Bank executed a Substitution of Trustee, substituting Defendant MTC Financial as the trustee under the Deed of Trust. (Id., Ex. E.) The Substitution of Trustee was recorded on August 25, 2011. (Id.) On August 26, 2011, MTC Financial recorded a Notice of Trustee's Sale against the Property, setting the sale for September 19, 2011. (Id., Ex. F.) The Property was sold to Deutsche Bank at a trustee's sale on September 23, 2011, and a Trustee's Deed Upon Sale was recorded on September 29, 2011. (Id., Ex. G.)
Plaintiff commenced this action on October 5, 2011, by filing a complaint in the Superior Court for the County of San Diego. His complaint alleges seven causes of action: (1) violation of California Civil Code § 2923.5; (2) fraud; (3) intentional misrepresentation; (4) violation of California Civil Code § 2923.6; (5) violation of California Civil Code § 1572; (6) violation of California Business & Professions Code § 17200; and (7) violations of the federal Truth in Lending Act ("TILA"), 15 U.S.C. § 1601 et seq. Defendant MTC Financial removed the case to this Court on October 13, 2011, on the basis of federal question jurisdiction premised on Plaintiff's TILA claim. (See Notice of Removal [Doc. No. 1].) MTC Financial filed its motion to dismiss on October 27, 2011. Plaintiff filed his opposition on November 14, 2011, and MTC Financial replied on November 17, 2011. Deutsche Bank filed its motion to dismiss on November 10, 2011. Plaintiff filed his opposition on November 22, 2011. The Court subsequently took both motions to dismiss under submission pursuant to the Civil Local Rule 7.1(d)(1).
A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the pleadings. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). "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, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "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. Where 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. (internal citation omitted). "Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
In ruling on a motion to dismiss, the court must "accept all factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party." Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). The court, however, need not accept "legal conclusions" as true. Iqbal, 129 S. Ct. at 1949. Thus, "a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. It is also improper for the court to assume that plaintiff "can prove facts that it 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 ...