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Glenn W. Bever v. Cal-Western Reconveyance Corp.

June 22, 2012




On Sept. 20, 2011, Glenn Bever ("Plaintiff") filed a complaint against Defendants CitiMortgage, Inc. ("Citi"), Mortgage Electronic Registration Services ("MERS") and Cal-Western Reconveyance Corp. ("Cal-Western") (collectively, "Defendants"). Plaintiff also filed an ex parte motion for a temporary restraining order to enjoin Defendant Cal-Western from selling Plaintiff's home in Clovis, Cal. (the "Property"). Based upon evidence presented by Plaintiff that Defendants failed to comply with Cal. Civ. Code § 2923.5, the temporary restraining order was granted on Oct. 26, 2011.

On Oct. 12, 2011, Defendants Citi and MERS filed a motion to dismiss Plaintiff's claim pursuant to Fed. R. Civ. P. 12(b)(6).*fn1


In his complaint, Doc. 1, Plaintiff alleges a number of irregularities and violations by Defendants in the foreclosure process. Plaintiff claims violations of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq., and the Real Estate Settlement Procedures Act (RESPA), 12 U.S.C. § 2605 et seq. Plaintiff also makes claims under California common law of unjust enrichment, fraud, and injurious falsehood, and seeks to quiet title to the Property.

Plaintiff first alleges under the FDCPA that Cal-Western failed, in a "loan payment confirmation" letter dated June 13, 2010,*fn2 to state the name of the creditor to whom the debt was owed and Plaintiff's right to dispute the debt within 30 days, in violation of 15 U.S.C. § 1692g(a)(2). Doc. 1 ¶¶ 74-75. Plaintiff also includes a verification request he sent to Cal-Western, which cites a letter from Cal-Western dated June 15, 2011, including the statement that "This letter is an attempt to collect a debt." Id. at 27. Plaintiff also alleges that Cal-Western failed to verify the debt as requested by Plaintiff and failed to cease collection after the request, in contravention of § 1692g(b). Id. ¶¶ 79-81. Plaintiff further claims -- apparently in connection to the Notice of Default -- that Cal-Western violated §§ 1692e and 1692f because it did not actually possess the promissory note for the Deed and therefore deceptively and unfairly sought collection of the debt. Id. ¶¶ 82-85. Plaintiff seeks unspecified damages. Id. ¶ 86.

Plaintiff alleges under RESPA that Citi responded to a Qualified Written Request in an untimely and inadequate manner, thus violating 12 U.S.C. § 2605(e). Id. ¶¶ 88-89.

Under a theory of unjust enrichment, Plaintiff seems to allege that federal bailout dollars or other means have been used to repay Plaintiff's loan, and that collection of Plaintiff's debt by Defendants would therefore unjustly enrich them. Id. ¶¶ 92-96.

Plaintiff further alleges that MERS acted to conceal its true identity and purpose, thereby inducing Plaintiff into a fraudulent loan. Id. ¶ 98. Plaintiff also appears to challenge MERS' authority to make an assignment to Citi and claims that MERS knew the assignment would wrongly divest Plaintiff of title to the Property. Id. ¶¶ 99-100.


A claim may be dismissed under Fed. R. Civ. P. 12(b)(6) if the claim states no cognizable legal theory or alleges insufficient facts to support a valid allegation. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

For purposes of the 12(b)(6) motion, all well-pleaded allegations are accepted as true and are construed in the light most favorable to the non-moving party. Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031-32 (9th Cir. 2008). A well-pleaded allegation contains sufficient facts to state a claim that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (U.S. 2007). Allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences do not meet this standard and need not be accepted as true. Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010).

A. Judicial Notice -- Generally, the court considers only the complaint and attached documents in deciding a motion to dismiss, but the court may also take judicial notice of matters of public record without converting the motion into a motion for summary judgment. Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001). Defendants Citi and Cal-Western have requested judicial notice of officially recorded documents. These documents include the deed of trust (the "Deed") executed on the Property by Plaintiff and his wife on June 4, 2003, which lists the trustee as Carriage Escrow, Inc. ("Carriage") and the beneficiary as MERS. Doc. 13-2 at 4; Doc. 32 at 4. Defendants further included the assignment of the Deed to Citi by MERS on behalf of lender First Pacific Financial, Inc. ("First Pacific"), recorded on May 27, 2011. Doc. 13-2 at 26; Doc. 32 at 23. Cal-Western includes the document, dated June 1, 2011, and recorded June 28, 2011, that substitutes Cal-Western as trustee under the Deed. Doc. 32 at 27. Defendants also requested notice of a Notice of Default and Notice of Default and Election to Sell, both recorded on June 3, 2011. Doc. 13-2 at 23-24; Doc. 32 at 30-31. A Notice of Trustee's Sale, recorded on Sept. 5, 2011, was also ...

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