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Abbas R. Mobine v. Onewest Bank

January 24, 2012

ABBAS R. MOBINE,
PLAINTIFF,
v.
ONEWEST BANK, FSB, A CALIFORNIA BANKING ASSOCIATION; INDYMAC MORTGAGE SERVICES, A DIVISION OF ONEWEST BANK, FSB; MORTGAGE ELECTRONIC REGISTRATION SYSTEM, INC., A DELAWARE CORPORATION; ALL PERSONS UNKNOWN CLAIMING ANY LEGAL OR EQUITABLE RIGHT, TITLE, ESTATE, LIEN, OR INTEREST IN THE PROPERTY DESCRIBED IN THE COMPLAINT ADVERSE TO PLAINTIFF'S TITLE, OR ANY CLOUD ON PLAINTIFF; AND DOES 1 THROUGH 100, DEFENDANTS.



The opinion of the court was delivered by: Irma E. Gonzalez United States District Judge

ORDER GRANTING MOTION TO DISMISS, [Doc. No. 3].

Presently before the Court is Defendants OneWest Bank, FSB, IndyMac Mortgage Services, and Mortgage Electronic Registration System, Inc. ("MERS")'s motion to dismiss. Plaintiff filed an opposition, and Defendants replied. Having considered the parties' arguments, and for the reasons set forth below, the Court GRANTS the motion to dismiss.

BACKGROUND

Plaintiff Abbas R. Mobine was the owner of real property located at 5817 Bucknell Avenue, La Jolla, CA 92037 ("Property"). He alleges that on or around March 2007, he decided to refinance the Property with Washington Mutual, which promised Plaintiff very favorable terms.

However, approximately a week before the loan was to close, Washington Mutual cancelled the loan due to lending problems it was experiencing. Subsequently, loan officers from Washington Mutual attempted to find another lender willing to satisfy Plaintiff's lending needs. They found Downey Savings but, before the loan could close, Downey similarly cancelled the loan due to lending problems it was experiencing. Subsequently, a broker from Downey informed Plaintiff that yet another lending institution was secured to fund Plaintiff's loan.

At that time, Plaintiff was getting ready to leave for a three-month business trip to Europe. He alleges he was informed that the closing of the loan could not wait until he got back. Accordingly, on August 15, 2008, while Plaintiff was in Europe, he received the loan documents from La Jolla Bank for a loan in the amount of $3,250,000.00, signed and notarized them, and mailed them back to La Jolla Bank. Plaintiff alleges that at the time of execution, he was not provided with a copy of the loan documents he executed. The escrow closed on August 21, 2008.

Plaintiff alleges that after he returned to the United States and received a copy of the loan documents, he discovered provisions that had not been part of the original loan agreement as represented to him. Specifically, Plaintiff alleges that the following provisions stood out: (1) the interest rate on the loan was higher than was agreed upon during negotiations; (2) the loan was amortized, instead of being an interest only loan as agreed upon during negotiations; and (3) Plaintiff was charged $70,000.00 in loan commissions, even though it was agreed that all costs were to be paid by the lender. (Compl. ¶ 14 [Doc. No. 1].) When Plaintiff confronted La Jolla Bank about the discrepancies, he was allegedly told that nothing could be done to rectify the situation. (Id.) Plaintiff did not pursue the problem further at that time. (Id. ¶ 20.)

In December 2009, Plaintiff requested loan modification from La Jolla Bank. He alleges that representatives from La Jolla Bank's loan and loss mitigation departments represented to him that a permanent loan modification was being drawn up for him. (Id. ¶ 21.) On February 24, 2010, Plaintiff received a notice from OneWest, notifying him that La Jolla Bank was closed by the Office of Thrift Supervision and that the Federal Deposit Insurance Corporation ("FDIC") was named Receiver. (Id. ¶ 22.) The letter also alleged that the servicing of Plaintiff's mortgage loan was assigned to OneWest. On March 1, 2010, Plaintiff alleges he received a letter from OneWest alleging that ownership of his loan was transferred to OneWest. (Id. ¶ 23.) On April 19, 2010, Plaintiff alleges he was instructed by OneWest's Loan Modification Department to submit a new loan modification application. (Id. ¶ 24.) On May 21, 2010, Plaintiff alleges he was contacted by Mr. Roy Brown with OneWest's Loan Modification Department indicating that his application for loan modification was approved. (Id. ¶ 25.) Plaintiff alleges that he subsequently lost contact with Brown and that only after several weeks was he able to find out that the office Brown worked at had been "phased out" and that everyone there was fired. (Id. ¶¶ 25, 26.)

On June 2010, Plaintiff alleges he contacted Ms. Brenda Diaz, OneWest's main Corporate Customer Experience Representative, and was informed that his loan was now being serviced by IndyMac. (Id. ¶ 27.) Plaintiff alleges that after speaking with Diaz, he was contacted by Mr. Jim Nolan and Mr. Dan Grenci, who asked him to resend a current loan modification application. (Id.) Subsequently, both Nolan and Grenci allegedly represented to Plaintiff that his application would be approved. (Id. ¶¶ 28, 29.) However, when he finally received the modification paperwork, Plaintiff alleges he discovered that the modification was only limited to six months. (Id. ¶ 29.) Plaintiff signed and executed the paperwork in September 2010. (Id. ¶ 30.)

On September 9, 2010, after Plaintiff again inquired about a permanent loan modification, Mr. Mark Mosier asked him to submit a new loan modification application. (Id. ¶ 32.) After another period of waiting, Plaintiff was finally informed by Mr. Babu Abraham that Plaintiff would not be receiving a permanent loan modification because his loan exceed $1,000,000.00. Some time later, because of the rising monthly payments (amounting to $20,000 by September 2010), Plaintiff alleges that he was forced to sell the Property at a short sale to avoid default.

In support of their motion to dismiss, Defendants submit a number of exhibits they want the Court to take judicial notice of. Defendants first submit a copy of the promissory note and the deed of trust in this case. (Def. RJN, Exs. A, B [Doc. No. 3-1].) They also submit a copy of the Purchase and Assumption Agreement ("P & A Agreement") between the FDIC, as Receiver for La Jolla Bank, and OneWest, dated February 19, 2010. (Id., Ex. C.) Next, Defendants submit a Corporate Assignment of Deed of Trust, showing that on April 17, 2010, the FDIC assigned the deed of trust to the Property to OneWest. (Id., Ex. D.) This assignment was recorded on April 29, 2010. (Id.) Finally, Defendants submit a copy of the Forbearance Agreement between Plaintiff and IndyMac, dated October 18, 2010 and executed on November 24, 2010. (Id., Ex. E.) The Court can properly take judicial notice of each of these documents. See Fed. R. Evid. 201(b)(2); see also Intri-Plex Tech., Inc. v. Crest Group, Inc., 499 F.3d 1048, 1052 (9th Cir. 2007) ("'[A] court may take judicial notice of "matters of public record" without converting a motion to dismiss into a motion for summary judgment,' as long as the facts noticed are not 'subject to reasonable dispute.'" (citation omitted)); Lopez v. Wash. Mut. Bank, F.A., No. 1:09-CV-1838 AWI JLT, 2010 WL 1558938, at **3-4 (E.D. Cak. Apr. 19, 2010) (taking judicial notice of several recorded documents, including a Purchase and Assumption Agreement between the FDIC and JPMorgan).

Plaintiff commenced this suit on August 18, 2011 in the Superior Court for the County of San Diego. Plaintiff's complaint alleges five causes of action: (1) fraud; (2) unfair business practices; (3) violations of the Truth in Lending Act ("TILA"); (4) violations of the Real Estate Settlement Procedures Act ("RESPA"); and (5) unjust enrichment. On November 2, 2011, Defendants removed the case to this Court. Defendants filed their motion to dismiss on November 9, 2011. Plaintiff filed an opposition on December 12, 2011, and Defendants replied on December 14, 2011. The Court took this matter under submission pursuant to the Civil Local Rule 7.1(d)(1).

LEGAL STANDARD

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). ...


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