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Gennady Shapiro v. Bank of America

February 29, 2012

GENNADY SHAPIRO,
PLAINTIFF,
v.
BANK OF AMERICA, N.A.; PRLAP, INC.; RECONSTRUCT COMPANY, N.A.; BAC HOME LOANS SERVICING, LP; VERDUGO TRUSTEE SERVICE CORPORATION; CITIBANK, N.A.; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; AND DOES 1 THROUGH 20, INCLUSIVE, DEFENDANTS.



ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

This matter comes before the Court on Defendants Bank of America, N.A. ("BANA"), PRLAP, Inc. ("PRLAP"), BAC Home Loans Servicing, LP ("BAC"), and Recontrust Company, N.A.'s ("Recontrust") (collectively "Defendants") Motion to Dismiss ("MTD") (Doc. #44) Plaintiff Gennady Shapiro's ("Plaintiff") Second Amended Complaint ("SAC") (Doc. #43) pursuant to Federal Rule of Civil Procedure 12(b)(6).*fn1 Plaintiff opposes the motion (Doc.#51), and Defendants filed a reply (Doc. #53). 2

I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

This action arises out of a non-judicial foreclosure of real 4 property located at 8120 Lone Pine Place, Granite Bay, California 5 ("the Property"). In July, 2005 Plaintiff executed a written Deed 6 of Trust with BANA as beneficiary. The original trustee was PRLAP. 7

In October 2010, Recontrust recorded a Notice of Default and 8 Election to Sell Under Deed of Trust ("Notice of Default") on the 9

Property. Two days later, Recontrust recorded a Substitution of Trustee executed by BANA on October 25, 2010 naming Recontrust as the replacement trustee. Subsequently, Recontrust recorded a Notice of Trustee's Sale, and the Property was foreclosed upon. Plaintiff generally challenges the foreclosure on the grounds that Defendants did not have an enforceable interest in the Property.

Defendants filed a Motion to Dismiss the First Amended Complaint (Doc. #16), which the Court granted in its entirety on October 12, 2011 (Doc. #40). Plaintiffs then filed the SAC, which Defendants now seek to dismiss. The SAC contains eight claims:

(1) Violation of the Truth in Lending Act; (2) Violation of 15 U.S.C. § 1635; (3) Violation of 12 CFR § 226; (4) Violation of Fair Debt Collection Practices Act, 15 U.S.C. § 1692; (5) Violation of Real Estate Settlement Procedures Act; (6) Slander of Title/Quiet Title; (7) Fraud; and (8) Wrongful Foreclosure.

The Court has jurisdiction over the federal claims in the SAC pursuant to 28 U.S.C. § 1331 and jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367.

For the reasons set forth below, Defendants' Motion to Dismiss is GRANTED in its entirety.

II. OPINION

A. Legal Standard 3

A party may move to dismiss an action for failure to state a 4 claim upon which relief can be granted pursuant to Federal Rule of 5

Civil Procedure 12(b)(6). In considering a motion to dismiss, the 6 court must accept the allegations in the complaint as true and draw 7 all reasonable inferences in favor of the plaintiff. Scheuer v. 8

Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by 9

Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322 (1972). Assertions that are mere "legal conclusions," however, are not entitled to the assumption of truth. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To survive a motion to dismiss, a plaintiff needs to plead "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. Dismissal is appropriate where the plaintiff fails to state a claim supportable by a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

B. Judicial Notice

In association with this motion, Defendants ask that the Court take judicial notice of the Deed of Trust, the Substitution of Trustee, the Notice of Default, and the Notice of Trustee's Sale recorded in association with the non-judicial foreclosure on the Property. Generally, the Court may not consider material beyond the pleadings in ruling on a motion to dismiss for failure to state a claim. The exceptions are material attached to, or relied on by, the complaint so long as authenticity is not disputed, or matters of public record, provided that they are not subject to reasonable dispute. E.g., Sherman v. Stryker Corp., 2009 WL 2241664 at *2 2 (C.D. Cal. Mar. 30, 2009) (citing Lee v. City of Los Angeles, 250 3 F.3d 668, 688 (9th Cir. 2001) and Fed. R. Evid. 201). Each of the 4 documents identified by Defendants is attached to the SAC, thus the 5 Court will consider them for the purposes of this motion. 6

C. Motion to Dismiss 7

1. The First and Third Causes of Action for Violations of TILA

Defendants seek dismissal of Plaintiff's first and third causes of action for violations of the Truth in Lending Act ("TILA") on the grounds that TILA does not apply to Plaintiff's mortgage, Plaintiff's TILA claims are time-barred, and Plaintiff did not plead tender of the full amount due on the loan. Plaintiff responds that his TILA claims are adequately pled, that tender is not required in the circumstances alleged in the complaint, and that the statute of limitations should be tolled.

The statute of limitations for TILA damages claim is one year from the occurrence of a violation. 15 U.S.C. § 1640(e). Under 15 U.S.C. § 1635(f), TILA rescission claims expire three years after the date of consummation of the transaction, or upon sale of the property, whichever occurs first. The limitations periods for both damages and rescissions actions run from the date of consummation of the transaction. Wadhwa v. Aurora Loan Services, LLC, 2011 WL 1601593, *2 (E.D. Cal. April 27, 2011) (citing King v. California, 784 F.2d 910, 915 (9th Cir.1986)).

In this case, Plaintiff filed his original Complaint on March 1, 2011, more than five years after the loan was executed in July 2005. Thus, the Court finds that the filing of the present ...


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