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Bruce Alan Martineau v. Federal Home Loan Mortgage

July 2, 2012

BRUCE ALAN MARTINEAU, PLAINTIFF,
v.
FEDERAL HOME LOAN MORTGAGE, INC.; OCWEN LOAN SERVICING LLC; TAYLOR, BEAN & WHITAKER CORPORATION; ALL PERSONS UNKNOWN, CLAIMING ANY RIGHT OR INTEREST IN REAL PROPERTY LOCATED AT 1435 HOLLENCREST DRIVE, WEST COVINA, CALIFORNIA 91791, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Otis D. Wright, II United States District Judge

JS-6

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS [7]

Before the Court is Defendants Federal Home Loan Mortgage Corp and Ocwen Loan Servicing, LLC's motion to dismiss Plaintiff Bruce Martineau's First Amended Complaint ("FAC").*fn1 (ECF No. 7.) For the following reasons, Defendants' motion to dismiss is GRANTED.

I.BACKGROUND

Martineau obtained a $414,000 mortgage on March 20, 2008 for his West Covina property. (Def.'s Req. for Judicial Notice ("RJN") Ex. A.) On August 1, 2009, Plaintiff defaulted on the loan. (RJN Ex. C.) Although Martineau attempted to repair the default and sought a loan modification, Defendants ultimately did not modify his loan. (Compl. ¶ 12.) The deed was then assigned to Ocwen, who foreclosed the property on September 8, 2011. (RJN Exs. B, F.) Martineau's complaint lists six claims, centered on Defendants' conduct during the loan modification and foreclosure processes. These six claims may be classified as follows:

 violations under the California Foreclosure Prevention Act ("CFPA") (Claims 1, 2, and 5);  violations under California Civil Code section 2923.6 (Claim 3);  violations under California Commercial Code section 3301, et seq. (Claim 4);  breach of duty of good faith and fair dealing. The Court addresses these categories of claims in turn.

II.LEGAL STANDARD

Dismissal under Rule 12(b)(6) 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 complaint need only satisfy the minimal notice pleading requirements of Rule 8(a)(2)-a short and plain statement-to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6). Porter v. Jones, 319 F.3d 483, 494 (9th Cir. 2003); Fed. R. Civ. P. 8(a)(2). For a complaint to sufficiently state a claim, its "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). While specific facts are not necessary so long as the complaint gives the defendant fair notice of the claim and the grounds upon which the claim rests, a complaint must nevertheless "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Iqbal's plausibility standard "asks for more than a sheer possibility that a defendant has acted unlawfully." Id. Rule 8 demands more than a complaint that is merely consistent with a defendant's liability-labels and conclusions, or formulaic recitals of the elements of a cause of action do not suffice. Id. The determination whether a complaint satisfies the plausibility standard is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679.

When considering a Rule 12(b)(6) motion, a court is generally limited to the pleadings and must construe "[a]ll factual allegations set forth in the complaint . . . as true and . . . in the light most favorable to [the plaintiff]." Lee v. City of L.A., 250 F.3d 668, 688 (9th Cir. 2001). Conclusory allegations, unwarranted deductions of fact, and unreasonable inferences need not be blindly accepted as true by the court. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). Yet, a complaint should be dismissed only if "it appears beyond doubt that the plaintiff can prove no set of facts" supporting plaintiff's claim for relief. Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999).

As a general rule, leave to amend a complaint that has been dismissed should be freely granted. Fed. R. Civ. P. 15(a). However, leave to amend may be denied when "the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency." Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir.1986); see Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000).

III.DISCUSSION

A.Violations of the California Foreclosure Prevention Act Martineau alleges Defendants violated the CFPA by:

 not offering relief "via Loan Modification or other vehicle" (Claim 1, FAC ¶ 15);  failing "to allow an additional 90 days" to work out a new loan arrangement (Claim 2, FAC ¶ 16); and as a result of these violations,  ...


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