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Maria Bitsakis, An Individual v. Jp Morgan Chase Bank

February 1, 2012

MARIA BITSAKIS, AN INDIVIDUAL, PLAINTIFF,
v.
JP MORGAN CHASE BANK, U.S. BANK NATIONAL ASSOCIATION, AND DOES 1-50, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Dean D. Pregerson United States District Judge

O

ORDER GRANTING MOTION TO DISMISS

[Dkt. No. 8]

Presently before the court is Defendants JP MORGAN CHASE BANK ("Chase") & U.S. BANK NATIONAL ASSOCIATION's Motion to Dismiss Plaintiff's Complaint. Having considered the submissions of the parties, the court GRANTS the motion on all claims and adopts the following Order.

I. Background

In August 2005, Maria Bitsakis ("Plaintiff") obtained two loans from Chase totaling $595,000*fn1 .

Throughout her Complaint and Opposition, Plaintiff alleges she was misled into believing that her loan*fn2 contained a fixed interest rate when, in fact, it was an adjustable one. While there is a dispute over when Plaintiff stopped paying her loans*fn3 , there is no argument that she ceased making payments.

In June 2009, Plaintiff voluntarily filed a bankruptcy petition under Chapter 7, which was granted in October 2009. In November 2009, Defendants commenced non-judicial foreclosure proceedings by sending Plaintiff a Notice of Default on the first -but not the second - loan. See RJN, Exh. E; in May 2011, Plaintiff filed suit in a California state court alleging the following claims: (1) misrepresentation and fraud, (2) rescission of contract and restitution of voidable cognovit note, (3)injunction against wrongful foreclosure based on cognovit note, (4) quiet Title, and (5) unfair business practice under California law. Defendants removed the action to this court and now move to dismiss.

II. JUDICIAL NOTICE

Defendants request that the Court take judicial notice of seven documents that are matters of public record: (1) the deed of trust dated August 1, 2005 and recorded August 11, 2005 in the Los Angeles County Recorder's office; (2) a copy of the Note dated August 1, 2005, certified as true and correct by the escrow officer, regarding the real property at issue in this action (located at 1356 W. 1st Street, Los Angeles, CA 90732); (3) a copy of the California Closed-End Deed of Trust dated August 2, 2005 -- certified as true and correct by the escrow of officer -- regarding the property at issue in this action; (4) a copy of the Closed-End Note with Balloon Addendum dated August 2, 2005, certified as true and correct by the escrow officer, regarding the real property at issue in this action; (5) the Notice of Default and Election to Sell Under Deed of Trust, with attached declaration, certified by First American Title Insurance Company as a true and correct copy of document recorded on November 12, 2009 as instrument No. 2009-1702878 in the Official Records of Los Angeles County; (6) Notice of Bankruptcy Case Filing for Case No. 2:09-bk-25953-SB, filed on June 23, 2009 and identifying Plaintiff as Debtor; (7) the discharge of Debtor for United States Bankruptcy Court, Central District of California Case No. 2:09-bk-25953-SB, Docket No. 15, entered on October 26, 2009.

Under Federal Rule of Evidence 201, a court may take judicial notice of "matters of public record." Mack v. South Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986). The Court GRANTS Defendants' request for judicial notice.

III. Legal Standard

Under Federal Rule of Civil Procedure 12(b)(6), a complaint is subject to dismissal when the plaintiff's allegations fail to state a claim upon which relief can be granted. When considering a 12(b)(6) motion to dismiss for failure to state a claim, "all allegations of material fact are accepted as true and should be construed in the light most favorable to [the] plaintiff." Resnick v. Hayes, 213 F.3d 433, 447 (9th Cir. 2000).

In Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009), the Supreme Court explained that a court considering a 12(b)(6) motion should first "identify[] pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id. Next, the court should identify the complaint's "well-pleaded factual allegations, . . . assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) ("In sum, for a complaint to survive a motion to dismiss, the non-conclusory factual content, ...


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