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James R. Mcdonald v. Capital One

May 15, 2012


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


On January 9, 2012, Plaintiff James R. McDonald, proceeding pro se, filed suit against Defendants JP Morgan Chase Bank, N.A., Capital One, N.A., and Quality Loan Service Corporation, in San Diego County Superior Court alleging various causes of action arising out of proceedings to foreclose upon real property located in Santee, California. Defendant Capital One timely removed the action to federal court on April 6, 2012, and now moves to dismiss Plaintiff's claims.*fn1 See Doc. Nos. 1, 5. Plaintiff filed an opposition to the motion, to which Capital One replied. See Doc. Nos. 6, 8. For the reasons set forth below, the Court GRANTS Capital One's motion.


This action arises out of events surrounding the foreclosure proceedings against Plaintiff's real property located at 1704 Bellamont Pass, Unit 36, Santee, California, 92071 ("the subject property"). Plaintiff alleges that on or about November 27, 2007, he entered into a mortgage loan agreement with non-party B.F. Saul Mortgage Company to purchase the subject property. Based thereon, Plaintiff executed a six month Adjustable Rate Note promising to pay the sum of $335,289.00. On or about September 12, 2011, an unknown employee of nominal Defendant Quality Loan Service Corporation executed on behalf of the alleged Beneficiary a Notice of Default stating that the payments were due to former Defendant JP Morgan Chase Bank, N.A. Based on this limited recitation of relevant facts, Plaintiff claims further that:

[T]he NOTE was invalid and unenforceable due to the intentional and willful violations including but not limited to: provisions contained in the Truth In Lending Act 15 U.S.C. §§ 1601, 1640 etc. et seq.; Regulation Z 1 226 etc. et seq. by failing and/or refusing to provide plaintiff with two copies of the "Notice to Cancel" ; California Civil Code § 2924b etc. et seq., California Civil Code §§§ 2924b(a), 2924b(d), 2924b(e) by failing and/or refusing to mail the Notice of Default within ten business days to Plaintiffs, by failing and/or refusing to post and mail the Notice of Default; by failing and/or refusing to mail Plaintiffs the Notice of Default within one month pursuant to California Civil Code § 2924b; by failing and/or refusing to properly set the sale date pursuant to California Civil Code § 29241b; by failing and/or refusing to publish the Notice of Sale twenty days prior to the date set for sale pursuant to California Civil Code § 2924f(b); by failing and/or refusing to record the Notice of Sale pursuant to California Civil Code § 2924g(d).

See Complaint ¶ 18. Plaintiff asserts eight causes of action against all named Defendants, including Capital One, for: (1) violation of Section 1611 of the Truth in Lending Act, codified at 15 U.S. C. § 1601 et seq. ("TILA"); (2) violation of Section 2605 of the Real Estate Settlement Procedures Act, codified 26 U.S.C. § 2601 et seq. ("RESPA"); (3) violation of the Home Ownership and Equity Protection Act of 1994, codified at 15 U.S.C. § 1602 ("HOEPA").; (4) violation of the Fair Debt Collections Practices Act, codified at 15 U.S.C. § 1692 et seq. (the "FDCPA"); (5) breach of fiduciary duty; ( 6) breach of covenant of good faith and fair dealing; (7) fraud; and (8) violation of California Civil Code Section § 2923.6.


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 pro se 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). Additionally, 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).


Defendant Capital One moves to dismiss Plaintiff's claims pursuant to Federal Rules of Civil Procedure 12(b)(6) and 8(a). Although Plaintiff opposes the motion, Plaintiff fails to address the deficiencies raised in Capital One's motion to dismiss. Rather, Plaintiff's opposition merely recites the legal standards governing motions to dismiss and concludes, with no supporting argument, that his allegations are sufficient to state a claim.

A. Rule 8(a)

As a preliminary matter, Plaintiff's claims against Capital One fail to satisfy the notice pleading standard set forth in Federal Rule of Civil Procedure 8(a). As Capital One correctly points out, Plaintiff's complaint mentions Capital One only twice. At the outset of the complaint, Plaintiff identifies Capital One "as the investor." See Complaint ¶ 2. Thereafter, the complaint refers to Capital One once more, alleging that Capital One acted with other defendants to record a defective Assignment of Deed of Trust, assigning the beneficial interest in the Deed of Trust to Capital One. Id. ¶ 80; Ex. B.

Plaintiff has not met the pleading standard required by Rule 8 because he fails to provide sufficient factual information to support any of his eight claims against Capital One. Indeed, Plaintiff has utilized a form complaint without properly tailoring the claims to the facts of this case. The result is a complaint which primarily lists legal conclusions. Although the federal rules allow for a flexible pleading policy, particularly with regard to a plaintiff appearing pro se, a complaint must still provide fair notice of the claims and must allege enough facts to state the elements of each claim plainly and succinctly. FED. R. CIV. P. 8(a)(2). "A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of cause of action will not do.' Nor does a complaint suffice if it tenders 'naked assertions' devoid of 'further factual enhancements.'" Iqbal, 129 S.Ct. at 1949, quoting Twombly, 550 U.S. at 555, 557.

Accordingly, Plaintiff's claims against Capital One are subject to dismissal pursuant to Federal ...

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