The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS THAT PLAINTIFF'S COMPLAINT BE DISMISSED WITH PREJUDICE
On July 27, 2011, Plaintiff filed a complaint asserting the following: (1) a claim to set aside a trustee's sale; (2) violation of the Perata Mortgage Relief Act; (3) violation of the Fair Debt Collection Practices Act; (4) violation of the Real Estate Settlement Procedures Act; (5) breach of contract; (6) breach of the covenant of good faith and fair dealing; (7) claims for negligent misrepresentation and fraud (intentional misrepresentation/fraudulent concealment); (8) unjust enrichment; and (9) violation of the California Business and Professions Code § 17200.
On October 31, 2011, the Court dismissed Plaintiff's complaint without prejudice and with 30 days leave to amend. (Doc. 8.) After requesting and obtaining a court order granting an extension of time to file an amended complaint, Plaintiff filed a First Amended Complaint ("FAC") on December 30, 2011. (Doc. 12.) Plaintiff's FAC asserts claims for fraud, quiet title, wrongful foreclosure, declaratory relief, cancellation of instruments, and unfair business practices against Defendants U.S. Bank, National Association ("U.S. Bank"), People's Choice Home Loans, Inc. ("People's Choice"), NDEX West, LLC ("NDEX"), and America's Servicing Company ("ASC") (collectively, "Defendants"). (Doc. 12.)
For the reasons set forth below, the Court RECOMMENDS that Plaintiff's FAC be DISMISSED with prejudice and without leave to amend.
Plaintiff's claims arise out of his 2004 purchase of residential real property located at Sandpiper Way, Madera, California (the "Property"), for which Plaintiff acquired a loan. (Doc. 12, ¶22.) Plaintiff subsequently defaulted on the loan, and his property was sold in a non-judicial foreclosure sale.
Plaintiff alleges that, at some point after he acquired his home loan, the note on the loan was "securitized" and became part of a securitized trust pursuant to a Pooling and Servicing Agreement ("PSA") (See Doc. 12, ¶¶ 49-59). See Jones v. Countrywide Homeloan, No. CV F 11-0405 AWIJLT, 2011 WL 2462845, (E.D. Cal. June 17, 2011) (presuming that securitization involves the transfer of the promissory note by sale to an asset portfolio in some form of structured investment vehicle (citing Core Wealth Mgmt, LLC v. Heller, 2010 WL 1453068, *2 (Cal. App. 2 Dist. 2010))).
According to Plaintiff, his loan was not properly part of the securitized trust because Defendants failed to comply with the terms of the PSA. Specifically, under the PSA, loans had to be assigned to the trust by a certain date (the closing date) and Plaintiff's loan was not assigned by that date. The failure to timely assign the note and the deed rendered the foreclosure of Plaintiff's property "void ab initio." Plaintiff relies on the above allegations to challenge the foreclosure of the Property.
In cases where the plaintiff is proceeding in forma pauperis, the Court is required to screen each case and shall dismiss the case at any time if the Court determines that the allegation of poverty is untrue, or the action or appeal is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). If the Court determines that the complaint fails to state a claim, leave to amend may be granted to the ...