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Diane Cahill v. Bank of America

June 28, 2012

DIANE CAHILL, PLAINTIFF,
v.
BANK OF AMERICA, NA, ET AL., DEFENDANTS.



FINDINGS & RECOMMENDATIONS

On June 28, 2012, the court held a hearing on defendants' motion to dismiss and motion to strike. Plaintiff appeared in pro per. Margarita Calpotura appeared by telephone for defendants. On review of the filings, discussion of plaintiff and counsel, and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

A. Procedural History

This action was filed on June 22, 2011 and is proceeding on a first amended complaint ("FAC") dated November 22, 2011. Plaintiff sets forth eight claims related to the foreclosure of real property located at 209 Blagdon Court, Roseville, California 95747 ("the Subject Property"). Plaintiff's claims are for (1) fraud, (2) violations of the Financial Accounting Standards Number 140 ("FAS No. 140") and the Fair Debt Collections Practices Act ("FDCPA"), 15 U.S.C. §§ 1692-1692p; (3) wrongful disclosure; (4) lack of standing to conduct a non-judicial foreclosure; (5) violation of the Truth in Lending Act ("TILA") 15 U.S.C. §§ 1601 et seq.; (6) fraudulent misrepresentation; (7) set aside foreclosure; and (8) breach. Doc. No. 10. Plaintiff seeks declaratory relief, injunctive relief, compensatory damages, punitive damages and rescission.

On screening the FAC, the court found it to state claims against defendants Bank of America, N.A. ("Bank of America"), ReconTrust Company ("ReconTrust"), Mortgage Electronic Registration Systems ("MERS"), American Home Mortgage Corp., and, finally, FEPRS, LLC.*fn1 Doc. No. 11.

On May 7, 2012, defendants Bank of America, MERS and ReconTrust filed the instant motion to dismiss and a motion to strike. Plaintiff opposes both motions.

B. Allegations from the FAC and Judicially Noticed Facts*fn2

On September 22, 2004, plaintiff obtained a home loan mortgage from American Home Mortgage Corp. in the amount of $287,900.00. See Request for Judicial Notice ("RJN"), Ex. A. A Deed of Trust ("DOT") was filed with the Placer County Recorder's Office on September 30, 2004. Id. The DOT identified Fidelity National Title Company as the Trustee and MERS as the Beneficiary. Id.

On June 5, 2009, a Substitution of Trustee was filed in the Placer County Recorder's Office naming ReconTrust as the Trustee, in place of Fidelity National Title Company. RJN, Ex. B.

On August 6, 2008, ReconTrust filed a "Notice of Default and Election to Sell Under Deed of Trust" with the Placer County Recorder's Office. RJN, Ex. C.

On April 7, 2011, MERS executed a Corporation Assignment of Deed of Trust, assigning all beneficial interest under the DOT to BAC Home Loans Servicing LP (formerly known as Countywide Home Loans Servicing LP). RJN, Ex. D. This Assignment was recorded with the Placer County Recorder's Office on April 12, 2011. Id.

In an undated letter to plaintiff, Bank of America confirmed that on July 1, 2011, its subsidiary, BAC Home Loans Servicing LP, transferred the servicing of home loans to its parent company, Bank of America, N.A. FAC, Ex. H.

On July 1, 2011, Bank of America sent plaintiff a Notice of Default. See FAC, Ex. D.

On July 29, 2011, plaintiff responded to Bank of America by sending it a correspondence entitled "Dispute of Debt and Notice of Default." FAC, Ex. D. In the letter, plaintiff alleged that Bank of America is not the holder of the DOT and sought verification from Bank of America that it was a real party in interest. Id.

On June 14, 2011, ReconTrust recorded a Notice of Trustee's Sale. RJN, Ex. G. Per this Notice, the Subject Property was sold through a foreclosure sale on July 22, 2011, and a Trustee's Deed Upon Sale was recorded on August 8, 2011. Id., Ex. H. The Subject Property was sold to defendant FEPRS, LLC. Id.

LEGAL STANDARDS

The purpose of a motion to dismiss pursuant to Rule 12(b)(6) 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, 555, 127 S. Ct. 1955, 1974 (2007). Thus, a ...


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