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James P. Barajas v. Countrywide Home Loans

February 24, 2012

JAMES P. BARAJAS, PLAINTIFF,
v.
COUNTRYWIDE HOME LOANS, INC., BAC HOME LOANS SERVICING, LP, MORTGAGE ELECTRONIC REGISTRATION SYSTEM, AND DOES 1-10, DEFENDANTS.



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

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS [Dkt. No. 25]

Presently before the court is the Motion to Dismiss filed by defendants Countrywide Home Loans, Inc. ("Countrywide"), BAC Home Loans Servicing, LP ("BAC"), and Mortgage Electronic Registration Systems, Inc. ("MERS"). Having considered the parties' moving papers, the court grants the motion and adopts the following Order.

I. Background

In 2007, Plaintiff obtained a loan from defendant Countrywide and purchased real property at 6847 Thornlake Avenue, Whittier, California 90606. (Second Amended Complaint ("SAC") ¶¶ 10-11). Plaintiff executed a Promissory Note in favor of Countrywide and a Deed of Trust listing Countrywide as "Lender" and MERS as "nominee for lender" and "beneficiary."*fn1 (SAC ¶¶ 16- 17). Plaintiff later learned that BAC was the servicer of Plaintiff's loan. (SAC ¶¶22).

Sometime in 2008, Plaintiff began experiencing economic difficulties and sought to renegotiate the terms of his loan. SAC ¶¶ 76-77). According to Plaintiff, BAC representatives led him to believe that he "would likely qualify" for a loan modification. (SAC ¶ 79). However, Plaintiff's requests for a loan modification were ultimately denied. (SAC ¶¶ 82, 85).

Plaintiff alleges that he does not know who currently owns his Note. (SAC ¶ 38, 44). Through this action, Plaintiff seeks to "prevent the improper taking and/or foreclosure of his family home" by defendants who no longer own the debt secured by Plaintiff's home and/or lack the right to initiate non-judicial foreclosure proceedings on behalf of the true owners of the debt." (SAC ¶ 1).

In his First, Fourth, and Fifth claims (collectively, the "foreclosure claims"), Plaintiff seeks: (1) a declaration that no defendant has authority to foreclose, (2) to quiet title against BAC, Countrywide, and MERS, and (3) damages for BAC's alleged breach of the implied covenant of good faith and fair dealing in connection with its acquisition of Plaintiff's debt and authority to foreclose. Plaintiff's Second and Third Claims (collectively, the "misrepresentation claims") allege misrepresentations against BAC in connection with Plaintiff's attempts to obtain a loan modification. In his Sixth claim, Plaintiff alleges that Defendants violated California Civil Code § 2923.5 and requests that any notice of default be voided and any resulting sale be unwound. In his Seventh claim, Plaintiff asks that Defendants be disgorged of the illicit profits they amassed as a result of their unfair business practices. Plaintiff Eighth's claim, is for an accounting to determine the amount due on the loan, if any.

In March 2011, Defendants filed a Motion to Dismiss the First Amended Complaint. After considering the parties' moving papers and oral arguments, this court granted the motion and dismissed the First Amended Complaint without prejudice. Defendants now move to dismiss the Second Amended Complaint.

II. Judicial Notice

Defendants request that the court take judicial notice of two documents that are matters of public record: (1) the Deed of Trust regarding the property located at 6847 Thornlake Avenue, Whittier, CA 90606 - the property at issue in this action; and (2) the Assignment of Deed of Trust regarding the property at issue in this action.

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). Consequently, this court GRANTS Defendants' unopposed 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, and reasonable inferences from that content, must be plausibly suggestive of a claim ...


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