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Hamid Akbari; Seyedah Vida Amjadi-Zanjani v. Aztec Foreclosure Corporation; One West Bank

June 26, 2012



This case, in which plaintiffs are proceeding pro se, is before the undersigned pursuant to Eastern District of California Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). Defendants Aztec Foreclosure Corporation ("Aztec") and OneWest Bank, FSB ("OneWest") move to dismiss plaintiffs' complaint. Dckt. Nos. 8, 16. Plaintiffs move to strike Aztec's reply brief, and also request leave to file an amended complaint if the motions to dismiss are granted. Dckt. No. 20; see also Dckt. No. 13 at 7-8, Dckt. No. 22 at 15-16. For the reasons stated herein, plaintiffs' motion to strike is denied and the plaintiffs' federal claim should be dismissed without leave to amend, and the remaining state law claims should be dismissed without prejudice pursuant to 28 U.S.C. § 1367.

I. Background

Plaintiffs challenge the foreclosure sale of their property in Vallejo, California (the "subject property"). On February 14, 2008, plaintiffs obtained a loan from Gateway Bank, FSB ("Gateway") to refinance the subject property. Compl. ¶ 8, Ex. B; Aztec's Req. for Jud. Notice, Dckt. No. 9, Ex. 1; OneWest's Req. for Jud. Notice, Dckt. No. 16-1, Exs. A, B.*fn1

According to OneWest, the loan was then transferred to IndyMac Bank, FSB ("IMB") in February 2008. OneWest's Mot. to Dismiss, Dckt. No. 16, at 2. Then, in July 2008, IMB failed and was seized by the Federal Office of Thrift Supervision ("OTS"), the OTS appointed the Federal Deposit Insurance Corporation ("FDIC") as Receiver for IMB, and IMB's assets were transferred to the newly chartered IndyMac Federal Bank, FSB ("IMFB"), for which the FDIC was appointed as Conservator. See July 11, 2008 FDIC Press Release, "FDIC Establishes IndyMac Federal Bank, FSB as Successor to IndyMac Bank, F.S.B., Pasadena, California," available at*fn2

On March 19, 2009, IMFB was closed and the FDIC was appointed as Receiver. Certain assets of IMFB were transferred from the FDIC to OneWest under a Loan Sale Agreement.*fn3 See March 19, 2009 Loan Sale Agreement between the FDIC as Receiver for IMFB and OneWest, available at The Loan Sale Agreement provides that FDIC, as the receiver, retains liability arising out of acts or omissions that occurred prior to March 19, 2009, and that OneWest specifically does not assume liability for any claims properly brought against the receiver. Id., § 2.01(d) (stating that OneWest did not obtain "any liabilities or obligations of the Seller attributable to an act, omission or circumstances that occurred or existed prior to [March 19, 2009] other than the Assumed Liabilities" and did not obtain "any liability or indebtedness of the Seller for contingent liabilities or liabilities in respect of any injury to any Person or property").

On May 4, 2011, the beneficial interest in the deed of trust was assigned to OneWest pursuant to an assignment deed of trust, which was recorded in Solano County on May 11, 2011. Dckt. No. 9, Ex. 3; Dckt. No. 16-1, Ex. D. On May 9, 2011, Aztec, as trustee under the deed of trust, executed a "Notice of Default and Election to Sell," which was recorded on May 11, 2011. Compl. ¶ 20, Ex. D; Dckt. No. 9, Ex. 2; Dckt. No. 16-1, Ex. E. On July 13, 2011, OneWest substituted Aztec as the trustee under the deed of trust; the substitution was recorded on August 10, 2011. Compl., Ex. E; Dckt. No. 9, Ex. 4; Dckt. No. 16-1, Ex. F.

Thereafter, on August 4, 2011, Aztec issued a "Notice of Trustee's Sale," noticing the sale for September 1, 2011; the notice was recorded on August 10, 2011. Compl. ¶ 20, Ex. E; Dckt. No. 9, Ex. 5; Dckt. No. 16-1, Ex. G. On August 9, 2011, OneWest assigned the beneficial interest in the deed of trust to OWB REO, LLC, and recorded the assignment on October 6, 2011. Dckt. No. 9, Ex. 6. On October 4, 2011, Aztec executed a "Trustee's Deed Upon Sale," conveying all interest in the property to OWB REO, LLC; the Trustee's Deed Upon Sale was recorded on October 6, 2011. Dckt. No. 9, Ex. 7; Dckt. No. 16-1, Ex. H.

Plaintiff filed this action on August 23, 2011, alleging claims for violations of the Truth in Lending Act ("TILA"), 15 U.S.C. §§ 1601 et seq.; fraud/attempted fraud; defective/void deed of trust and void promissory note contracts; intentional infliction of emotional distress; and conditions precedent. Compl., Dckt. No. 1. Defendants Aztec and OneWest move to dismiss the complaint pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6) for failure to state a claim. Dckt. Nos. 8, 16.

II. Motion to Strike

Plaintiffs move to strike all portions of Aztec's reply brief pursuant to Rule 12(f), arguing that the allegations therein "are insufficient to support claims, redundant, immaterial, impertinent, and a sham pleading against plaintiffs intended to waste this court's time." Dckt. No. 20 at 2. Rule 12(f) authorizes the court to order stricken from any pleading "any redundant, immaterial, impertinent, or scandalous matter." A matter is immaterial if it "has no essential or important relationship to the claim for relief or the defenses being pleaded." Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev'd on other grounds by 510 U.S. 517 (1994).

A matter is impertinent if it consists of statements that do not pertain to and are not necessary to the issues in question. Id. Redundant matter is defined as allegations that "constitute a needless repetition of other averments or are foreign to the issue." Thornton v. Solutionone Cleaning Concepts, Inc., 2007 WL 210586 (E.D. Cal. Jan. 26, 2007) (citing Wilkerson v. Butler, 229 F.R.D. 166, 170 (E.D. Cal. 2005)). Finally, a matter is scandalous if it improperly casts a derogatory light on a party or other person. Skadegaard v. Farrell, 578 F. Supp. 1209, 1221 (D.N.J. 1984); Talbot v. Robert Matthews Distributing Co., 961 F.2d 654, 665 (7th Cir. 1992). As with motions to dismiss for failure to state a claim, when ruling upon a motion to strike, the court must view the pleading under attack in the light more favorable to the pleader. Lazar v. Trans Union LLC, 195 F.R.D. 665, 669 (C.D. Cal. 2000); Multimedia Patent Trust v. Microsoft Corp., 525 F. Supp. 2d 1200, 1207 (S.D. Cal. 2007). Motions to strike are generally viewed with disfavor, and will usually be denied unless the allegations in the pleading have no possible relation to the controversy, and may cause prejudice to one of the parties. See 5A C. Wright & A. Miller, Federal Practice and Procedure: Civil 2d 1380; see also Hanna v. Lane, 610 F. Supp. 32, 34 (N.D. Ill. 1985).

Here, plaintiffs have not addressed this standard nor have they shown that any portion of the brief is redundant, immaterial, impertinent, or scandalous. Aztec was authorized to file a reply brief under Local Rule 230(d) and plaintiffs have provided no explanation for why the brief should be stricken. Accordingly, plaintiffs' motion to strike that brief, Dckt. No. 20, is denied.

III. Motions to Dismiss

Aztec and OneWest move to dismiss plaintiff's complaint under Rule 12(b)(6) for failure to state a claim. Dckt. ...

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