ORDER VACATING HEARING DATE, ORDER ON DEFENDANTS' MOTION TO DISMISS, AND ORDER REMANDING MATTER TO THE KINGS COUNTY SUPERIOR COURT
This case was removed by Defendants from the Kings County Superior Court on March 8, 2012, on the basis of Federal Question Jurisdiction.
Defendants have noticed for hearing and decision a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). The matter was scheduled for a hearing to be held on April 30, 2012. Pursuant to Local Rule 230(c), Plaintiff was required to file either an opposition or a notice of non-opposition no later than April 16, 2012. Plaintiff failed to do so. Due to Plaintiffs' failure to file a timely opposition or notice of non-opposition, he is in violation of the Local Rules. Plaintiff is not entitled to be heard at oral argument in opposition to the motion. See Local Rule 230(c).
The Court has reviewed Defendants' motion and the applicable law, and has determined that the motion is suitable for decision without oral argument. See Local Rule 230(h). The Court will vacate the April 30, 2012, hearing date and instead issue the following order, which resolves Defendants' motion and remands this matter to state court.
On June 23, 2006, Plaintiff executed a deed of trust. See RJN Ex. 1. Plaintiff obtained a mortgage loan of approximately $202,000 for real property located in Lemoore, California. See id.
On February 11, 2010, the deed of trust was assigned to Citimortgage. See RJN Ex. 2. On October 12, 2011, CR Title Services recorded a Notice of Default in the Kings County Recorder's Office. See RJN Ex. 3. The amount of default was approximately $12,000. See id.
On January 18, 2012, a Notice of Trustee's Sale was recorded in the Kings County Recorder's Office. See RJN Ex. 4. The Trustee's sale was scheduled to occur on February 7, 2012. See id.
On February 7, 2012, Plaintiff filed this action in the Kings County Superior Court. See Doc. No. 1-1. Plaintiff alleges violations for 12 U.S.C. § 2601, 12 C.F.R. § 226, California Business & Professions Code § 17200, California Civil Code § 1572, wrongful foreclosure, and fraud. See id.
Under Federal Rule of Civil Procedure 12(b)(6) ,
a claim may be dismissed because of the plaintiff's "failure to
state a claim upon which relief can be granted." Fed. R. Civ. P.
12(b)(6) . A dismissal under Rule 12(b)(6) may be
based on the lack of a cognizable legal theory or on the absence of
sufficient facts alleged under a cognizable legal theory. Johnson v.
Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 2008);
Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001).
In reviewing a complaint under Rule 12(b)(6), all allegations of
material fact are taken as true and construed in the light most
favorable to the non-moving party. Marceau v. Blackfeet Hous. Auth.,
540 F.3d 916, 919 (9th Cir. 2008); Vignolo v. Miller, 120 F.3d
1075, 1077 (9th Cir. 1999). However, the Court is not required "to
accept as true allegations that are merely conclusory, unwarranted
deductions of fact, or unreasonable inferences." In re Gilead Scis.
Sec. Litig., 536 F.3d 1049, 1056-57 (9th Cir. 2008); Sprewell v.
Golden State Warriors, 266
F.3d 979, 988 (9th Cir. 2001). To "avoid a Rule 12(b)(6)
dismissal, "a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its
face." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009); see Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). "A claim has facial
plausibility when the plaintiff pleads factual content that allows the
court draw the reasonable inference that the defendant is liable for
the misconduct alleged." Iqbal, 129 S.Ct. at 1949. In deciding whether
to dismiss a claim under Rule 12(b)(6), the Court is generally limited
to reviewing only the complaint, but it may take judicial notice of
public records outside the pleadings, review materials which are
properly submitted as part of the complaint, and review documents that
are incorporated by reference in the Complaint if no party questions
their authenticity. See Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir.
2005); Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir.
2001). If a Rule 12(b)(6) motion is granted, leave to amend need not
be granted where amendment would be futile. Gompper v. VISX, Inc., 298
F.3d 893, 898 (9th Cir. 2002).
1. Real Estate Settlement Procedures Act ("RESPA") - 12 U.S.C. ...