Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Andrew G. Kalnoki, Individually v. First American Loanstar Trustee Services LLC

April 3, 2012

ANDREW G. KALNOKI, INDIVIDUALLY, KATHI KALNOKI, INDIVIDUALLY,
PLAINTIFFS,
v.
FIRST AMERICAN LOANSTAR TRUSTEE SERVICES LLC, WELLS FARGO HOME MORTGAGE,
FIRST AMERICAN TITLE INSURANCE COMPANY, AND DOES 1- 10,
DEFENDANTS.



The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER DISMISSING PLAINTIFFS' FEDERAL CLAIMS AND REMANDING STATE CLAIMS

Each Defendant moves under Federal Rule of Civil Procedure ("Rule") 12(b)(6) for dismissal of all claims in Plaintiffs' Second Amended Complaint ("SAC"). Plaintiffs filed opposition briefs.

This case concerns the foreclosure of Plaintiffs' real property pursuant to a deed of trust. Plaintiffs filed their original complaint in state court on February 22, 2011, in which they allege Defendants violated California state laws in connection with the foreclosure of Plaintiffs' real property; the real property was sold to Defendant U.S. Bank at a foreclosure sale. While this case was in state court, it was consolidated with an unlawful detainer action Defendant U.S. Bank filed against Plaintiffs regarding the same real property. Plaintiffs subsequently filed their SAC, in which they added a claim against each Defendant under the Fair Debt Collection Practices Act ("FDCPA"). Defendants then removed the consolidated cases to this federal court based on their argument that Plaintiffs' FDCPA claims provide the federal court with "federal question" removal jurisdiction.

Since the state claims appear to substantially predominate over Plaintiffs' FDCPA claims, the portions of the motions challenging the federal claims will be decided first, and then the issue will be reached sua sponte whether the state claims substantially predominate over Plaintiffs' FDCPA claims.

I. 12(b)(6) Standard

Decision on Defendants' Rule 12(b)(6) dismissal motions requires determination of "whether the complaint's factual allegations, together with all reasonable inferences, state a plausible claim for relief." Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., 637 F.3d 1047, 1054 (9th Cir. 2011) (citing Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949-50 (2009)). "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." Iqbal, 129 S. Ct. at 1949 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)).

When determining the sufficiency of a claim under Rule 12(b)(6), "[w]e accept factual allegations in the complaint as true and construe the pleadings in the light most favorable to the non-moving party[; however, this tenet does not apply to] . . . legal conclusions . . . cast in the form of factual allegations." Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (citation and internal quotation marks omitted). "Therefore, conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss." Id. (citation and internal quotation marks omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) ("A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

II. Discussion

A. 12(b)(6) Dismissal Motion

Each movant argues Plaintiffs' FDCPA claim against it should be dismissed for failure to state an actionable claim. (Wells Fargo & U.S. Bank's Mot. to Dismiss 24:19; First American's Mot. to Dismiss 12:14-15.) Plaintiffs do not address these arguments in their opposition briefs.

Congress intended the FDCPA to eliminate abusive debt collection practices by debt collectors . . . and to promote consistent state action to protect consumers against debt collection abuses. The FDCPA prohibits debt collectors from resorting to false, deceptive, or misleading representation or means in connection with the collection of any debt. To plead entitlement to relief under the FDCPA, Plaintiffs . . . must allege facts [from which a reasonable inference could be drawn] that (1) [each] Defendant was collecting debt as a debt collector, and (2) its debt collection actions [violated the FDCPA].

Schlegel v. Wells Fargo Bank, N.A., 799 F. Supp. 2d 1100, 1103 (N.D. Cal. 2011) (citations and quotations omitted).

The term "debt collector" means any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.