The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
Plaintiff Chris R. Longhurst ("Plaintiff") brings this action against Defendant JP Morgan Chase Bank ("Defendant") seeking to recover for injuries Plaintiff sustained in connection with Defendant's initiation of foreclosure proceedings as to Plaintiff's residence. Presently before the Court is Defendant's Motion to Dismiss Plaintiff's First Amended Complaint ("FAC") in its entirety. For the following reasons, Defendant's Motion is GRANTED in part and DENIED in part.*fn1
In early 2006, Plaintiff obtained a loan for approximately $286,700 to finance the purchase of a home. Defendant's Request for Judicial Notice("RJN"), Exh. 1.*fn2 The loan was secured by a Deed of Trust ("DOT"), which was recorded with the Shasta County Recorder's Office on March 15, 2006. Id. The DOT identifies Washington Mutual Bank, FA ("WAMU"), as the lender and beneficiary, California Reconveyance Company ("CRC") as the trustee, and Plaintiff as the borrower. Id.
Plaintiff alleges that later, in May of 2006, Plaintiff's loan was securitized into a pass-through trust, namely the WAMU Mortgage Pass Through Certificate Series 2006-PR3 ("Trust"). FAC, ¶ 46. Subsequently, in September of 2008, Defendant acquired certain assets and liabilities of WAMU from the Federal Deposit Insurance Corporation ("FDIC"), which was acting as receiver for WAMU, via a Purchase and Assumption Agreement ("Purchase Agreement"). RJN, Ex. 2. Defendant later assigned all beneficial interest in the DOT to Wells Fargo, N.A. ("Wells Fargo"), as Trustee for the Trust. FAC, Exhs. B, C. Defendant remained the servicer on the loan as well as agent to the beneficiary Wells Fargo.
Plaintiff eventually defaulted on his loan, and, on May 10, 2011, CRC, as trustee, issued a Notice of Default and Election to Sell Under Deed of Trust ("NOD"), which was later recorded in the Shasta County Recorder's Office. FAC, ¶ 43, Ex. A. The NOD indicated Defendant was the entity to contact to arrange payment to avoid foreclosure. Id. Attached to that NOD is a declaration by which Defendant swears "that the mortgagee, beneficiary, or authorized agent tried with due diligence but was unable to contact the borrower to discuss the borrower's financial situation and to explore options for the borrower to avoid foreclosure...." Id. According to Plaintiff, however, that declaration is false, and "[p]rior to 30 days before the NOD was filed, Plaintiff was not contacted in person or by telephone by anyone claiming to be a mortgagee, beneficiary, or authorized agent, in compliance with [California Civil Code § 2923.5], in order to: (a) Assess Plaintiff's financial situation; (b) Explore with Plaintiff options to avoid foreclosure; and (c) Provide the toll-free telephone number made available by the United States Department of Housing and Urban Development (HUD) to find a HUD-certified housing counseling agency." Id., ¶ 21.
In August of 2011, and again the next month, "Notices of Trustee's Sales" were recorded and a trustee's sale as to Plaintiff's property was set for October 6th, 2011. Id., Ex. D. Accordingly, on October 3, 2011, Plaintiff filed his original Complaint in this action attempting to stay the impending sale. Plaintiff thereafter filed his operative FAC, in response to which Defendant filed its instant Motion. Defendant's Motion is now GRANTED in part and DENIED in part.
On a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6),*fn3 all allegations of material fact must be accepted as true and construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Rule 8(a)(2) "requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the...claim is and the grounds upon which it rests.'" Bell. Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A complaint attacked by a Rule 12(b)(6) motion to dismiss does not require detailed factual allegations. Id. However, "a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. (internal citations and quotations omitted). A court is not required to accept as true a "legal conclusion couched as a factual allegation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). The Court also is not required "to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Sciences Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (internal citations and quotations omitted).
"Factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555.
Furthermore, "Rule 8(a)(2)...requires a 'showing,' rather than a blanket assertion, of entitlement to relief." Twombly, 550 U.S. at 556 n.3 (internal citations and quotations omitted). "Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirements of providing not only 'fair notice' of the nature of the claim, but also 'grounds' on which the claim rests." Id. (citation omitted). A pleading must contain "only enough facts to state a claim to relief that is plausible on its face." Id. at 570. If the "plaintiffs...have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed."
Id. However, "a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and 'that a recovery is very remote and unlikely.'" Id. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
A court granting a motion to dismiss a complaint must then decide whether to grant a leave to amend. Leave to amend should be "freely given" where there is no "undue delay, bad faith or dilatory motive on the part of the movant,...undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of the amendment...." Foman v. Davis, 371 U.S. 178, 182 (1962); Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (listing the Foman factors as those to be considered when deciding whether to grant leave to amend). Dismissal without leave to amend is proper only if it is clear that "the complaint could not be saved by any amendment."
Intri-Plex Techs., Inc. v. Crest Group, Inc., 499 F.3d 1048, 1056 (9th Cir. 2007) (internal ...