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Jose Wende v. Countrywide Home Loans

February 27, 2012


The opinion of the court was delivered by: M. James Lorenz United States District Court Judge


On October 29, 2009, Plaintiff Jose Wende commenced this mortgage-foreclosure action against Defendants Countrywide Home Loans, Inc., Countrywide Bank, N.A., Countrywide Brokerage Arm, and BAC Home Loans Servicing, LP ("BAC Home Loans") in the San Diego Superior Court. Thereafter, Defendants removed the action to this Court. On April 1, 2011, Plaintiff filed a Second Amended Complaint ("SAC"). Defendants now move to dismiss the SAC. Plaintiff opposes.

The Court found this motion suitable for determination on the papers submitted and without oral argument. See Civ. L.R. 7.1(d.1). (Doc. 35.) For the following reasons, the Court GRANTS Defendant's motion to dismiss as to all of Plaintiff's federal claims, and REMANDS the remaining state-law claims to the San Diego Superior Court for all further proceedings.


Plaintiff owns real property located at 528 Bayona Loop in Chula Vista, California ("Property"). (SAC ¶ 1 [Doc. 26].) On May 10, 2006, Plaintiff refinanced the Property and obtained a loan with Countrywide Home Loans by signing a note and deed of trust. (Id. ¶ 17.) On June 19, 2006, Plaintiff borrowed more funds from Countrywide Bank, signing another note and deed of trust. (Id. ¶ 17.) Both loans were secured by the Property. (Id. ¶ 18.) Subsequently, Plaintiff fell behind on his payments and was unsuccessful in his attempt to modify the loans.

¶ 70--74.) Eventually, the loans were transferred to BAC Home Loans, and it commenced foreclosure proceedings against the Property. (Id. ¶ 124.)

On October 29, 2009, Plaintiff filed a complaint in the San Diego Superior Court to resist the foreclosure proceedings. On January 27, 2010, Defendants removed the action to this Court based on federal-question jurisdiction under 28 U.S.C. § 1331. (Notice of Removal [Doc. 1].)

Plaintiff subsequently filed his First Amended Complaint ("FAC"), asserting the following thirteen causes of action: (1) violation of the Real Estate Settlement Procedures Act ("RESPA"); (2) violation of the Truth-in-Lending Act ("TILA"); (3) violation of the Fair Debt Collection Practice Act ("FDCPA"); (4) violation of the Rosenthal Fair Debt Collection Practices Act; (5) violation of California Civil Code § 1632 et seq.; (6) violation of the Business and Professions Code § 17200; (7) negligent misrepresentation; (8) fraud; (9) rescission; (10) quasi contract; (11) determination of validity of lien; (12) conspiracy; and (13) aiding and abetting. (Doc. 17.) Plaintiff requested damages, rescission, and other remedies.

On April 29, 2010, Defendants moved to dismiss the FAC. This Court granted the motion with leave to amend. Thereafter, Plaintiff filed the SAC with the same thirteen causes of action. Defendants now move to dismiss the SAC. (Doc. 27.) Plaintiff opposes.*fn1 (Doc. 51.)


The court must dismiss a cause of action for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). The court must accept all allegations of material fact as true and construe them in light most favorable to the nonmoving party. Cedars-Sanai Med. Ctr. v. Nat'l League of Postmasters of U.S., 497 F.3d 972, 975 (9th Cir. 2007). Material allegations, even if doubtful in fact, are assumed to be true. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). However, the court need not "necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) (internal quotation marks omitted). In fact, the court does not need to accept any legal conclusions as true. Ashcroft v. Iqbal, 556 U.S. 662, - , 129 S. Ct. 1937, 1949 (2009)

"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause

action will not do." Twombly, 550 U.S. at 555 (internal citations omitted). Instead, the allegations in the complaint "must be enough to raise a right to relief above the speculative level." Id. "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.'" Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "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."

A complaint may be dismissed as a matter of law either for lack of a cognizable legal theory or for insufficient facts under a cognizable theory. Robertson v. Dean Witter ...

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