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Frederick R. Lipscomb and Jlt Roilynee M. Lipscomb v. Mortgage Electronic Registration System

May 14, 2012

FREDERICK R. LIPSCOMB AND JLT ROILYNEE M. LIPSCOMB,
PLAINTIFFS ,
v.
MORTGAGE ELECTRONIC REGISTRATION SYSTEM, INC., ET AL.,
DEFENDANTS.



ORDER VACATING HEARING, ORDER ON DEFENDANTS' MOTION TO DISMISS, ORDER ON MOTION TO EXPUNGE LIS PENDENS, and ORDER CLOSING CASE

(Doc. Nos. 4, 5)

This case stems from a mortgage and subsequent trustee sale of Plaintiffs' real property. Defendants removed this case from the Inyo County Superior Court. Currently set for hearing and decision on May 21, 2012, is Defendants' motion to dismiss and motion to expunge a notice of lis pendens. Pursuant to Local Rule 230(c), Plaintiffs were required to file either an opposition or a notice of non-opposition no later than May 7, 2012. Plaintiffs failed to do so. Due to Plaintiffs' failure to file a timely opposition or notice of non-opposition, they are in violation of the Local Rules. See 230(c). Plaintiffs are not entitled to be heard at oral argument in opposition to the motion. See id.

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 May 21, 2012, hearing and instead issue the following order, which resolves the pending motions.

FACTUAL BACKGROUND *fn1

In April 2007, Plaintiffs obtained a loan in the amount of $70,000, secured by a deed of trust that encumbered property located on 321 Pine Street, Big Pine, California ("the Pine Property"). See RJN Ex. A. Plaintiffs executed a series of refinancing transactions that culminated in a loan from Carnegie Mortgage, LLC, in July 2008 in an amount of $417,000. See RJN Exs. B, C, D.

Beginning in August 2009, Plaintiffs failed to make the monthly loan payments. See RJN Ex. E; Complaint ¶¶ 38, 55. On November 25, 2009, a Notice of Default was recorded which indicated that Plaintiffs were $11,520 in arrears. See RJN Ex. E.

On March 3, 2010, a Notice of Trustee's sale was recorded in the Inyo County Recorder's Office. See RJN Ex. G. On September 20, 2010, the Pine Property was sold at a foreclosure sale to Freddie Mac, who was the highest bidder at the public auction. See RJN Ex. J.

On February 7, 2011, Plaintiffs filed suit in the Inyo County Superior Court alleging state law claims for quiet title and slander of title, fraud, negligent misrepresentation, bad faith, wrongful foreclosure, and violations of 15 U.S.C. § 1692f . See RJN Ex. K. That case was removed to this Court on March 24, 2011. See Court's Docket Doc. No. 1 in Case No. 1:11-CV-497 AWI JLT (hereinafter "the February 2011 Case"). On May 9, 2011, a first amended complaint was filed. See id. at Doc. No. 7. On August 3, 2011, the Court dismissed the entire first amended complaint for failure to state a claim under Rule 12(b)(6). See id. at Doc. No. 15. On August 19, 2011, the Court ordered closure of the case due to Plaintiffs' failure to file an amended complaint within the time ordered by the Court. See id. at Doc. No. 16.

On November 7, 2011, Plaintiffs filed a complaint in the Inyo County Superior Court and recorded a lis pendens against the Pine Property. See RJN Ex. Q; Doc. No. 1. On March 7, 2012, Defendants removed to this Court. See Doc. No. 1.

LEGAL FRAMEWORK

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). 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; see Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. Cal. 2011).

DEFENDANTS' MOTIONS

1. Defendants' Motion To ...


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