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Steven D. Mclaren and Ramona H. Mclaren v. Reconstrust Company

March 1, 2012



Defendants move to dismiss pro se plaintiffs' second amended complaint ("SAC"). Plaintiffs oppose the motion. The Court considers this motion on the papers submitted and without oral argument.


On September 26, 2006, plaintiff Ramona McClaren obtained a cash-out refinance loan of $268,000.00 from Countrywide Home Loans, Inc. for property located in Alpine, California. The promissory note on the loan was dated September 21, 2006 ("Note"). Plaintiff executed a Deed of Trust encumbering the property.

Countrywide, plaintiff's lender, was dismissed with prejudice in the state court and is not a party in this action. Named defendants, BAC Homeloans Servicing, LP (BAC) -- the loan servicer; Mortgage Electronic Registration Systems (MERS) -- the original beneficiary under plaintiffs' Deed of Trust; The Bank of New York Mellon fka The Bank of New York, as trustee for CWABS, Inc. (BNY) -- the current beneficiary under plaintiffs' Deed of Trust; ReconTrust Company, N.A. (ReconTrust) -- the Trustee; and Landsafe Title of California, Inc. (Landsafe) -- signed the Notice of Default as attorney in fact, are alleged to have failed to provide plaintiff with documents or disclosures that are required by law.

Plaintiff and her husband failed to make payments in connection with the loan. On October 6, 2009, a Notice of Default was recorded. Plaintiffs failed to bring the loan payments current. Foreclosure proceedings were initiated. On December 21, 2009, MERS assigned its beneficial interest under the Deed of Trust to BNY.

On December 24, 2009, plaintiffs filed this action in the Superior Court of the State of California, in and for the County of San Diego. They filed a first amended complaint on March 2, 2010. On April 7, 2010, the Notice of Trustee's Sale was recorded but the property has not been sold at foreclosure.

On October 7, 2010, after Countrywide, plaintiff's lender, was dismissed from the action, BAC, ReconTrust and Landsafe removed the action on the basis of federal question jurisdiction. On March 21, 2011, plaintiffs filed a second amended complaint that defendants move to dismiss.

Legal Standard

"The focus of any Rule 12(b)(6) dismissal . . . is the complaint." Schneider v. California Dept. of Corrections, 151 F.3d 1194, 1197 n.1 (9th Cir. 1998). A complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. IV. P. 8(a). A Rule 12(b)(6) motion tests the sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal pursuant to Rule 12(b)(6) is proper only where there is either a "lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir .1988). "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 of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks, brackets and citations omitted). In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume the truth of all factual allegations and must construe them in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996).

After accepting as true all non-conclusory allegations and drawing all reasonable inferences in favor of the plaintiff, the Court must determine whether the complaint alleges a plausible claim to relief. See Ashcroft v. Iqbal 129 S. Ct 1937, 1950 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)(A complaint cannot survive a motion to dismiss unless it provides "sufficient factual matter, . . . to 'state a claim to relief that is plausible on its face.'"). "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."

at 1949. In determining facial plausibility, whether a complaint states a plausible claim is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950.

In determining the propriety of a Rule 12(b)(6) dismissal, a court may not look beyond the complaint for additional facts, e.g., facts presented in plaintiff's memorandum in opposition to a defendant's motion to dismiss or other submissions. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003); Parrino v. FHP, Inc., 146 F.3d 699, 705-06 (9th Cir. 1998); see also 2 OORE'S FEDERAL PRACTICE, § 12.34[2] (Matthew Bender 3d ed.) ("The court may not . . . take into account additional facts asserted in a memorandum opposing the motion to dismiss, because such memoranda do not constitute pleadings under Rule 7(a).").

Further, as a general rule, the court may not consider materials beyond the pleadings in ruling on a Rule 12(b)(6) motion but an exception to this general rule is that a "court may take judicial notice of matters of public record . . . as long as the facts noticed are not subject to reasonable dispute." Skilstaf, Inc. v. CVS Caremark Corp., 2012 WL 400369, *16, n.9 (9th Cir. 2012)(citing Intri--Plex Techs., Inc. v. Crest Grp., Inc., 499 F.3d 1048, 1052 (9th Cir.2007) (citation and internal quotation marks omitted); see also Tellabs, Inc. v. Makor Issues & Rights, , 551 U.S. 308, 322 (2007) ("[C]courts must consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.").

Pro se pleadings are held to a less stringent standard than those drafted by attorneys; however, the Court cannot supply essential elements of a claim that are not pleaded. Hebbe v. , 627 F.3d 338, 342 (9th Cir. 2010); Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).


Plaintiffs' pro se complaint alleges fourteen causes of action based on defendants' purported failure to provide various disclosures and fraud. ...

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