ORDER RE: MOTION TO DISMISS FIRST AMENDED COMPLAINT
Plaintiff William R. Schuck, Jr., brought this action against defendants Federal National Mortgage Association aka Fannie Mae ("Fannie Mae"), GMAC Mortgage LLC ("GMAC"),*fn1 and Homecomings Financial LLC ("Homecomings")*fn2 , stating claims for fraud, negligent misrepresentation, wrongful foreclosure, and violation of the Real Estate Settlement Procedures Act ("RESPA") arising out of the allegedly wrongful foreclosure of plaintiff's property located at 272 Shepard Lane, Bishop, California ("the Shepard Lane property"). Currently before the court is the joint motion filed by all defendants to dismiss plaintiff's First Amended Complaint ("FAC") in its entirety for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6).
I. Factual and Procedural Background
Plaintiff obtained a loan in the amount of $278,000 from Homecomings, which was secured by a Deed of Trust recorded against the Shepard Lane property. (Req. for Judicial Notice Ex. A (Docket No. 12-2).) An Assignment of Deed of Trust was recorded on August 21, 2006, which stated that Homecomings transferred the Deed of Trust on the Shepard Lane property to GMAC. (Id. Ex. B.) GMAC then caused to be recorded a Substitution of Trustee, which replaced the original trustee under the Deed of Trust with Executive Trustee Services, LLC. (Id. Ex. C.)
Plaintiff alleges that on July 21, 2003, Jennifer Burgen on behalf of GMAC represented to him that GMAC was the true owner of the loan and that he should make all mortgage payments to GMAC. (FAC ¶ 13 (Docket No. 11).) Plaintiff further alleges that similar representations were made in invoices and billing statements through May 2011. (Id.) Plaintiff claims that these representations are false, but alleges that "the true owner of the subject deed of trust and/or its successor in interest is unknown to Plaintiff." (Id. ¶ 14.)
Between May 2009 and December 2009, plaintiff spoke to GMAC about the possibility of participating in a loan modification program. (Id. ¶ 17.) Plaintiff alleges that GMAC falsely represented that he could participate in a loan modification program and that it had "authority to modify the interest rate, payment amount and balance on his indebtedness." (Id. ¶¶ 17-19.) He further claims that GMAC incorrectly informed him that in order to participate in that program he would have to stop making regular loan payments. (Id. ¶¶ 20, 22.) Finally, he alleges that GMAC falsely represented to him that his credit would not be adversely affected by his participation in the loan modification program and that during the loan modification process "there would be forbearance by GMAC on collection actions, including foreclosure proceedings." (Id. ¶¶ 20-22.)
On April 22, 2010, a Notice of Default on plaintiff's loan was recorded. (Req. for Judicial Notice Ex. D.) Several months later, on July 23, 2010, a Notice of Trustee's Sale was recorded. (Id. Ex. E.)
The Shepard Lane property was sold in a foreclosure sale to Fannie Mae, and on March 10, 2011, a Trustee's Deed Upon Sale was recorded listing Freddie Mac as the new owner of the property. (Id. Ex. F.)
Plaintiff filed suit against Fannie Mae and GMAC in the Superior Court of Inyo County on February 22, 2011, stating claims for quiet title and slander of title, fraud, negligent misrepresentation, bad faith, wrongful foreclosure, violation of 15 U.S.C. § 1692f, and violation of RESPA. (Id. Ex. G.) After being transferred to the Eastern District of California, that case was dismissed with prejudice on July 19, 2011. (See id. H, I.)
Plaintiff filed this action in the Superior Court of Inyo County on August 16, 2011. (Notice of Removal ¶ 1 (Docket No. 1).) Defendants removed the case to federal court pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1332. (Id. ¶ 5.) The present motion to dismiss was filed on January 27, 2012. (Docket No. 12.) Plaintiff filed a late statement of non-opposition. (Docket No. 17.)
To survive a motion to dismiss, a plaintiff must plead "only enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This "plausibility standard," however, "asks for more than a sheer possibility that a defendant has acted unlawfully," Ashcroft v. Iqbal, 556 U.S. 662, ---, 129 S. Ct. 1937, 1949 (2009), and "[w]here a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557). In deciding whether a plaintiff has stated a claim, the court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322 (1972).
In general, a court may not consider items outside the pleadings when deciding a motion to dismiss, but it may consider items of which it can take judicial notice. Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994). A court may take judicial notice of facts "not subject to reasonable dispute" because they are either "(1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201. Judicial notice may properly be taken of matters of public record outside the pleadings. See MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986).
Defendants request that the court judicially notice several recorded documents pertaining to the Shepard Lane property. (See Defs.' Req. for Judicial Notice Exs. A-F.) The court will take judicial notice of these documents, since they are matters of public record whose accuracy cannot be questioned. See Lee v. City of L.A., 250 F.3d 668, 689 (9th Cir. 2001).
Defendants also request that the court judicially notice the previous Complaint filed by plaintiff and the order dismissing that action with prejudice. (Defs.' Req. for Judicial Notice Exs. G-I.) To the extent that defendants request that the court take judicial notice that the previous Complaint was filed and later dismissed, the request is granted. See Burbank-Glendale-Pasadena Airport Auth. v. City of Burbank, 136 F.3d 1360, 1364 (9th Cir. 1998). However, ...