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Holli Nicewander v. Mtc Financial

March 29, 2012

HOLLI NICEWANDER,
PLAINTIFF,
v.
MTC FINANCIAL, INC., ET AL.,
DEFENDANTS.



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

ORDER GRANTING MOTION TO DISMISS SECOND AMENDED COMPLAINT WITHOUT LEAVE TO AMEND [DOC. 46]

On August 11, 2010, Plaintiff Holli Nicewander commenced this mortgage-foreclosure action against Defendants MTC Financial, Inc., American Mortgage Network, Mortgage Electronic Registration Systems, Inc. ("MERS"), First American Title Company, Indymac Bank F.S.B., OneWest Bank, and Freddie Mac Trust in the San Diego Superior Court. Thereafter, Defendants removed the action to this Court. On September 12, 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. 54.) For the following reasons, the Court GRANTS WITHOUT LEAVE TO AMEND Defendant's motion to dismiss the SAC.

BACKGROUND

Plaintiff owned real property located at 18630 Quail Trail Drive in Jamul, California ("property"). (SAC ¶ 5 [Doc. 26].) On June 19, 2007, she executed a note secured by a deed of trust on the property. (SAC, Exs. A, B.) American Mortgage Network, Inc. was the lender of the loan, First American Title Insurance Company was the trustee under the deed of trust, and MERS was the beneficiary under the deed of trust, solely as nominee for the lender and its successors and assigns. (Id.) On April 22, 2009, the deed of trust was assigned to IndyMac Federal Bank, F.S.B. ("IndyMac"). (Id., Ex. F.)

In early 2009, Plaintiff alleges that she initiated her loan modification. (SAC ¶ 28.) While her application for a loan modification was pending, she further alleges that OneWest would not accept her payments. (Id. ¶ 29.) Thereafter, on April 24, 2009, a Notice of Default and Election to Sell Under Deed of Trust was recorded. (Id., Ex. C.) Trustee Corps*fn1 signed the notice as agent for IndyMac. (Id.)

On June 15, 2009, a substitution of trustee was signed, naming Trustee Corps as the successor trustee under the deed of trust. (SAC, Ex. E.) On the same day, the deed of trust was assigned to Freddie Mac. (Id., Ex. G.) On August 6, 2009, the notice of trustee's sale was recorded, setting the sale date for August 26, 2009. (Id., Ex. D.) Trustee Corps signed the notice as the successor trustee. (Id.)

Although Plaintiff made several payments after the loan modification was approved, the property was foreclosed. (See SAC ¶ 31, 36--37.) On June 7, 2010, Freddie Mac purchased the property a non-judicial foreclosure sale. (Id., Ex. H.) Trustee Corps was the trustee of the sale.

) Following the sale, a trustee's deed upon sale was recorded. (Id.)

On August 11, 2009, Plaintiff filed a complaint in the San Diego Superior Court seeking from the foreclosure. On October 14, 2010, Freddie Mac removed the action to this Court under 12 U.S.C. § 1452(f), which provides for removal by a federal home-loan mortgage corporation. (Notice of Removal [Doc. 1].)

Plaintiff subsequently filed her First Amended Complaint ("FAC"), asserting seven causes of action. (Doc. 17.) The Court granted Defendants' motion to dismiss the FAC because Plaintiff failed to allege tender, but granted Plaintiff leave to amend. (Doc. 42.)

On September 12, 2011, Plaintiff filed her SAC, asserting the following four causes of action: (1) cancellation of written instruments, (2) wrongful foreclosure, (3) violation of the Business and Professions Code § 17200, and (4) violation of California Code of Civil Procedure § 726. (Doc. 43.) She requests an order from the Court canceling or setting aside the trustee's sale and various other documents, damages, and other remedies. Defendants now move to dismiss the SAC. (Doc. 46.) Plaintiff opposes. (Doc. 52.)

LEGAL STANDARD

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 ...


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