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Abbas R. Mobine v. Onewest Bank

April 27, 2012

ABBAS R. MOBINE,
PLAINTIFF,
v.
ONEWEST BANK, FSB, A CALIFORNIA BANKING ASSOCIATION; INDYMAC
MORTGAGE SERVICES, A DIVISION OF ONEWEST BANK, FSB; MORTGAGE ELECTRONIC REGISTRATION SYSTEM, INC., A DELAWARE CORPORATION; ALL PERSONS UNKNOWN CLAIMING ANY LEGAL OR EQUITABLE RIGHT, TITLE, ESTATE, LIEN, OR INTEREST IN THE PROPERTY DESCRIBED IN THE COMPLAINT ADVERSE TO PLAINTIFF'S TITLE, OR ANY CLOUD ON PLAINTIFF; AND DOES 1 THROUGH 100, DEFENDANTS.



The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

ORDER GRANTING ONEWEST BANK'S MOTION TO DISMISS FIRST AMENDED COMPLAINT [Doc. No. 3].

Presently before the Court is Defendant OneWest Bank, FSB's motion to dismiss Plaintiff's First Amended Complaint. Plaintiff did not file an opposition. Having considered the Defendant's arguments, and for the reasons set forth below, the Court GRANTS the motion to dismiss and DISMISSES Plaintiff's claims against OneWest.*fn1

Background

The factual background of the case was fully set forth in the Court's January 24, 2012 order and will not be repeated herein. The Court granted Defendants' motion to dismiss the original complaint, dismissing with prejudice Plaintiff's claims against Defendant Mortgage Electronic Registration System ("MERS") as well as Plaintiff's claims for fraud and violation of the Truth in Lending Act. [Doc. No. 8, p. 12.] The Court also dismissed with leave to amend Plaintiff's claims for violations of the Real Estate Settlement Procedures Act ("RESPA"), unjust enrichment, and unfair business practices.

Plaintiff filed a First Amended Complaint ("FAC") on February 14, 2012. Defendant OneWest now moves to dismiss the FAC.

Legal Standard

A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the pleadings. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). "To survive a motion to dismiss, 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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "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. 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. (internal citation omitted). "Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

In ruling on a motion to dismiss, the court must "accept all factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party." Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). The court, however, need not accept "legal conclusions" as true. Iqbal, 129 S. Ct. at 1949. Thus, "a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. It is also improper for the court to assume that 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). On the other hand, "[w]hen 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." Iqbal, 129 S. Ct. at 1950.

Discussion

Defendant moves to dismiss the FAC, arguing Plaintiff failed to cure the deficiencies noted in the Court's order dismissing the original complaint.

1. RESPA

The Court dismissed all of Plaintiff's claims against OneWest as set forth in the original complaint insofar as they were premised on acts or omissions of La Jolla Bank. [Doc. No. 8, pp. 6-7.] The Court also found Plaintiff's remaining RESPA allegations to be purely conclusory, as Plaintiff stated only that OneWest accepted charges other than for services actually performed. [Doc. No. 8, p. 10.] In the FAC, Plaintiff alleges Defendants breached their duties under RESPA by failing to timely respond to written inquiries regarding loan origination documents, failing to make required disclosures, and failing to exercise due diligence in attempting to contact Plaintiff and assist him with the loan modification.

To the extent Plaintiff again attempts to assert claims under RESPA against OneWest based upon the failure to provide origination documents, such claims are barred because OneWest did not take on the liabilities associated with borrower claims against La Jolla Bank as explained in the Court's order dismissing the original complaint. [Doc. No. 8, pp. 5-7.] In addition, Plaintiff's claim that OneWest failed to provide him with a "Mortgage Servicing Transfer Disclosure" [FAC, ¶ 153(b)] lacks merit, because Plaintiff admits he received that document. [FAC, ¶ 124.]

OneWest's alleged lack of communication regarding the loan modification also does not violate RESPA. Under 12 U.S.C. ยง 2605(e), a loan servicer has a duty to respond within 60 days to a Qualified Written Request ("QWR") from the borrower for information relating to the servicing of such loan. The QWR must contain a statement of the reasons the borrow believes the account is in error or provide sufficient detail to the servicer regarding what other information is sought. Id. Here, Plaintiff alleges he sent numerous QWRs to OneWest for loan origination documents, but does not provide copies of any of those ...


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