This matter came before the court on May 4, 2012, for hearing of defendants' motions to dismiss pro se plaintiff Robert Wooten's amended complaint. Attorney Steven Son appeared telephonically for defendants Ocwen Loan Servicing, LLC ("Ocwen") and Western Progressive, LLC ("Western Progressive"), attorney Feather Baron appeared telephonically for defendant Countrywide Home Loans ("CHL") and plaintiff appeared in person at the hearing on his own behalf. Oral argument was heard and the motions were taken under submission.
In his amended complaint plaintiff alleges as follows. Beginning in 1994 through 2002 plaintiff had two home loans from CHL in connection with two different properties. (Am. Compl. (Doc. No. 27) at 4.*fn2 ) In 2002, plaintiff sought a third loan from CHL to purchase a residence located at 1637 W. Houston in Stockton, California, and was told that he would first have to "divest himself of the two existing properties prior to obtaining a new loan." (Id. at 5.) By the time plaintiff sold the two properties, however, 1637 W. Houston was no longer for sale. (Id.) Plaintiff located a similar residence for sale in the 2400 block of W. Houston. (Id.) Plaintiff then sought a loan but CHL denied plaintiff's application. (Id.) Plaintiff's realtor referred plaintiff to a loan broker who was able obtained a loan for plaintiff. (Id.) Surprisingly in light of CHL's denial of his previous application, the loan plaintiff in fact procured was from CHL. (Id.)
In May of 2005, plaintiff refinanced his CHL loan through SDI Financial with a loan obtained from defendant Argent Mortgage Company, LLC ("Argent").*fn3 (Id. at 6.) Plaintiff entered into the loan agreement with Argent believing that if he paid on the loan for two years without any late payments he would be able to again refinance his loan at a lower interest rate. (Id.) In 2007, after two years of timely loan payments, plaintiff contacted Argent to inquire about the refinancing process and was told that Argent was not refinancing any loans at that time. (Id.) In August of 2007, defendant Ocwen Loan Servicing, LLC began servicing plaintiff's loan. (Id. at 7.) In 2008, the adjustable rate on plaintiff's loan adjusted upwards, costing plaintiff seven to eight hundred dollars per month in additional mortgage payments. (Id. at. 6-7.) Eventually plaintiff defaulted on his loan and foreclosure proceedings commenced. (Doc. No. 2-2 at 72.)
On June 6, 2011, plaintiff filed his original complaint in the San Joaquin County Superior Court, alleging claims for (1) negligent misrepresentation, (2) fraudulent concealment, (3) intentional misrepresentation, (4) violation of California Civil Code § 2923.5, (5) violation of California Business & Professions Code § 17200, (6) breach of contract and (7) violation of the Racketeer Influenced and Corrupt Organization Act (" RICO"), 18 U.S.C. § 1961 et seq., against CHL, Western Progressive, Ocwen, Citigroup and Argent Mortgage. On June 23, 2011, plaintiff obtained an ex parte order from the San Joaquin County Superior Court enjoining the foreclosure proceedings. (Doc. No. 2-2.) Subsequently, on July 6, 2011, defendants Western Progressive and Ocwen removed the action to federal court based on plaintiff's federal RICO claim. (Doc. No. 2.)
Following the filing of the original complaint, and before removal of
the action to this court, plaintiff executed a loan modification
agreement with Ocwen. (Doc. No. 8 at 1.) The pending trustee's sale
was cancelled. (Id. at 2.) On February 1, 2012, the undersigned
dismissed plaintiff's complaint and granted him leave to file an
amended complaint. (Doc. No. 26.) Plaintiff filed his amended
complaint on March 2, 2012. (Am. Compl. (Doc. No. 27.)) Defendant CHL
filed a motion to dismiss on March 16, 2012. (Doc. No. 31.) That same
day defendants Ocwen and Western Progressive also filed a motion to
dismiss. (Doc. No. 34.) Plaintiff filed an opposition to CHL's motion
to dismiss on April 5, 2012. (Pl.'s Opp.'n (Doc. No. 37.)) Plaintiff
has not filed an opposition to Ocwen's motion to dismiss.*fn4
CHL filed a reply to plaintiff's opposition on April 26,
2012. (Doc. No. 38.)
The purpose of a motion to dismiss pursuant to Rule 12(b)(6)*fn5 is to test the legal sufficiency of the complaint. N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). "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). A plaintiff is required to allege "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). "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." Ashcroft v. Iqbal, 556 U.S. 662,___, 129 S. Ct. 1937, 1949 (2009).
In determining whether a complaint states a claim on which relief may be granted, the court accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). In general, pro se complaints are held to less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, the court need not assume the truth of legal conclusions cast in the form of factual allegations. United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). While Rule 8(a) does not require detailed factual allegations, "it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation." Iqbal, 129 S. Ct. at 1949. A pleading is insufficient if it offers mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555. See also Iqbal, 129 S. Ct. at 1950 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."). Moreover, it is inappropriate to assume that the plaintiff "can prove facts which it has not alleged or that the defendants have violated the . . . laws in ways that have not been alleged." Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).
In ruling on the motion, the court is permitted to consider material which is properly submitted as part of the complaint, documents that are not physically attached to the complaint if their authenticity is not contested and the plaintiff's complaint necessarily relies on them, and matters of public record. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001).
The minimum requirements for a civil complaint in federal court are as follows: A pleading which sets forth a claim for relief . . . shall contain (1) a short and plain statement of the grounds upon which the court's jurisdiction depends . . . , (2) a short and plain statement of the claim showing that the pleader is ...