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Elda R. Valle v. Complaint Jp Morgan Chase Bank

April 11, 2012

ELDA R. VALLE,
PLAINTIFF,
v.
COMPLAINT JP MORGAN CHASE BANK, N.A. ET. AL.,
DEFENDANTS.



The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S [Doc. No. 4]

Currently before the Court is Defendants' JPMorgan Chase Bank, N.A. ("Chase") and California Reconveyance Company's ("CRC") motion to dismiss pro se Plaintiff Elda R. Valle's complaint in the above-captioned foreclosure action. [Doc. No. 4.] For the reasons set forth below, the Court GRANTS the motion and DISMISSES the complaint.

BACKGROUND

This action arises from events surrounding the foreclosure proceedings against Plaintiff's property, located at 5865 San Migueo Road in Bonita California 91902. To finance the purchase of the property, Plaintiff borrowed $400,000 from Washington Mutual Bank, F.A. ("WaMu"). The loan was secured by a deed of trust on the subject property, which was recorded on December 2, 2005. [Request for Judicial Notice ("RJN"), Exh. G.] On September 25, 2008, Chase acquired certain assets and liabilities of WaMu from the Federal Deposit Insurance Company ("FDIC") evidenced by a purchase and assumption agreement. [RJN Exh. H.]

Plaintiff defaulted on the loan, and on February 3, 2011 the trustee, CRC, recorded a notice of default. [RJN Exh. I.] On May 23, 2011, a notice of trustee sale was recorded, which stated an unpaid balance and other charges due of $480,606.57. [RJN Exh. J.]*fn1

On September 21, 2011, Plaintiff, proceeding pro se, filed her complaint against Defendants in the San Diego Superior Court. Plaintiff's complaint alleges nine causes of action:

(1) violation of Truth in Lending Act ("TILA"), 15 U.S.C. § 1611 et seq.; (2) violation of Real Estate Settlement Procedures Act ("RESPA"), 26 U.S.C. § 2605 et seq.; (3) violation of Home Ownership and Equity Protection Act of 1994 ("HOEPA"), 15 U.S.C. § 1602 et seq.; (4) violation of Fair Debt Collection Practices Act ("FDCPA") 15 U.S.C. § 1692 et seq.; (5) breach of fiduciary duty; (6) breach of covenant of good faith and fair dealing; (7) injunctive relief; (8) declaratory relief; and (9) violation of California Civil Code § 2923.6.*fn2

On October 24, 2011, Defendants timely removed the action to this Court. [Doc. No. 1.] On October 31, 2011, Defendants filed the pending motion to dismiss Plaintiff's Complaint [Doc. No. 4], and Plaintiff filed an opposition to the motion on January 10, 2012. [Doc. No. 9.]

LEGAL STANDARD

A pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." FED. R. CIV. P. 8(a)(2). A party may move to dismiss a complaint for "failure to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). A complaint survives a motion to dismiss if it contains "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). The court reviews the contents of the complaint, accepting all factual allegations as true, and drawing all reasonable inferences in favor of the nonmoving party. Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). Notwithstanding this deference, the reviewing court need not accept "legal conclusions" as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Moreover, it is improper for a court to assume "the [plaintiff] can prove facts that [it] has not alleged." Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). Accordingly, a reviewing court may begin "by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Ashcroft, 556 U.S. at 679.

"When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. 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." Id. at 1949. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. "Where 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. (citing Twombly, 550 U.S. at 557). Leave to amend should be granted unless the pleading could not possibly be cured by the allegation of other facts. Knappenberger v. City of Phoenix, 566 F.3d 936, 942 (9th Cir. 2009).

Where a Plaintiff appears in propria persona in a civil rights case, the court must construe the pleadings liberally and afford the plaintiff any benefit of the doubt. Karim-Panachi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1998). The Court must give a pro se litigant leave to amend his complaint "unless it determines that the pleadings could not possibly be cured by the allegation of other facts." Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (quotation omitted) (citing Noll. v. Carlson, 809 F.2d 1446, 1447 (9th Cir. 1987).

DISCUSSION

a) Request for Judicial Notice

In support of its motion to dismiss, Defendants request the Court take judicial notice of the following documents:

(1) Complaint, Tasaranta v. Homecomings Financial LLC, et al., United States District Court for the Southern District of California, Case No. 3:09-cv-01666 WQH (JMA), Doc. No. 1, pp.10-21;

(2) Order Granting Motion to Dismiss Complaint, September 21, 2009, United States District Court for the Southern District of California, Case No. 3:09-cv-01666 WQH (JMA), Doc. No. 10;

(3) Complaint, Serrano v. Security National Mortgage Company, et al., United States District Court for the Southern District of California, Case. No. 3:09-cv-01416-H-CAB, Doc. No. 1, pp. 8-19;

(4) Order Granting Motion to Dismiss Complaint, August 14, 2009, United States District Court for the Southern District of California, Case. No. 3:09-cv-01416-H-CAB, Doc. No. 6;

(5) Complaint, Amaro v. Option One Mortgage Corp., et al., United States District Court for the Central District of California, Case No. 5:08-cv-01498-VAP-AJW, Doc. No. 1, pp. 12-27;

(6) Order Granting Motion to Dismiss Complaint, January 14, 2009, United States District Court for the Central District of California, Case No. 5:08-cv-01498-VAP-AJW, Doc. No. 14;

(7) Deed of Trust, recorded in the County of San Diego on December 2, 2005;

(8) Purchase and Assumption Agreement, dated September 25, 2008, between Federal Deposit Insurance Corporation, as receiver for Washington Mutual Bank, and JPMorgan Chase Bank, N.A.;

(9) Notice of Default and Election to Sell Under Deed of Trust, recorded in the County of San Diego on February 3, 2011;

(10) Notice of Trustee's Sale, recorded in the County of San Diego on May 23, 2011.

Plaintiff does not oppose Defendants' request for judicial notice.

Federal Rule of Evidence 201 governs judicial notice of adjudicative facts. FED. R. EVID.

201(a). "A judicially noticed fact must be one not subject to reasonable ...


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