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Kathleen Givant v. Vitek Real Estate Industries Group

July 13, 2012

KATHLEEN GIVANT,
PLAINTIFF,
v.
VITEK REAL ESTATE INDUSTRIES GROUP, INC. DBA VITEK MORTGAGE GROUP, A CALIFORNIA CORPORATION; EVERHOME MORTGAGE COMPANY, A FLORIDA CORPORATION; AND ALL PERSONS OR ENTITIES UNKNOWN CLAIMING ANY LEGAL OR EQUITABLE RIGHT, TITLE, ESTATE, LIEN OR INTEREST IN THE PROPERTY DESCRIBED IN THIS COMPLAINT ADVERSE TO PL'S TITLE THERETO, AND DOES 1-2 INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

MEMORANDUM AND ORDER

Defendants Vitek Real Estate Industries Group, Inc. ("Vitek") and Everhome Mortgage Company ("Everhome") have each filed a Motion to Dismiss Plaintiffs' First Amended Complaint (ECF No. 14) pursuant to Fed. R. Civ. P. 12(b)(6).*fn1 For the reasons that follow, both Vitek's and Everhome's Motions to Dismiss (ECF Nos. 19 and 29) are GRANTED with leave to amend.*fn2

BACKGROUND*fn3

Plaintiff Kathleen Givant ("Givant") alleges that she was the owner of real property in The Sea Ranch,*fn4 California (the "Property"), which she states she owned free and clear and which was appraised for $1,180,000. (FAC, ¶ 10, 11, 14.) In November 2007, Givant contacted an agent for Vitek, a home mortgage lender, seeking a loan to provide capital for a new business venture. (Id. at ¶ 12.) ///

On November 6, 2007, Vitek's agent, Robert Turietta ("Turietta"), prepared a Loan Document Worksheet indicating that Givant would be eligible for an Adjustable Rate Loan in the amount of $767,000. (Id. at ¶ 13.) Givant alleges that she informed Turietta that her income was approximately $10,000 a month and that her expenses included a $3,600 a month mortgage payment. (FAC, ¶ 15.) Givant states that throughout the loan application process she was never told to provide documentation of her income and expenses and she claims she never filled out any loan application documents. (Id.)

On or about February 26, 2008, Givant obtained a thirty-year Adjustable Rate Mortgage from Vitek, secured by a Deed of Trust in the amount of $767,000 for the Subject Property.*fn5 (Id. at ¶ 11.) Givant contends that she was pressured to quickly close the deal without having the opportunity to thoroughly examine the agreement. (Id. at ¶ 15-16.) She alleges that a number of terms were not disclosed to her, including the amount of the loan, the terms of the loan, and the information regarding her employment and salary listed in the loan document. (Id. ¶ 17.)

Although Givant contends that she never signed her loan application, she admits she signed the final loan documents, albeit under time pressure. (Id. ¶¶ 17-19, 33, 36.) Notably, the final loan agreement pages include, on each page, a handwritten signature of Kathleen Givant, or the handwritten initials "KM," as well as the date, handwritten as February 26, 2008. (See FAC, Exhibit D (loan documents).)

These pages include the information regarding Givant's income and expenses, as well as the terms of the loan. (Id.)

In April 2010, after falling behind on her payments, Givant defaulted on her loan. (Id. at ¶ 20.) In May 2010, she states that she applied for a loan modification, through the Home Affordable Modification Program ("HAMP"), with Everhome by means of an authorized third party but claims Everhome never subsequently offered her a loan modification. (Id. at ¶ 21.)

On December 13, 2010, Vitek recorded a Notice of Default on the Property. (Id. at ¶ 22.) The Notice of Default stated that, as of December 12, 2010, Givant's loan was in default in the amount of $46,693.53. (Id.) In May 2011, Givant alleges that Everhome advised her that the bank would consider payment in the sum of $40,000 to postpone the foreclosure sale. (Id. at ¶ 24.) She alleges that after she obtained the $40,000, the bank revoked its offer and demanded she pay approximately $90,000. (Id.)

On April 13, 2011, Vitek recorded a Notice of Trustee's Sale, which was set for May 9, 2011, but was thereafter continued to June 12, 2011. (Id.) The Trustee's Sale was set for January 12, 2012. (Id. at ¶ 23.)*fn6 On August 30, 2011, Givant states she sent Everhome a "qualified written request" letter pursuant to the Real Estate Settlement Procedures Act ("RESPA")

(12 U.S.C. §§ 2601, et seq.), but Everhome did not thereafter respond to her letter. (FAC ¶¶ 59-63.)

On November 3, 2011, Givant filed a complaint in California State Court alleging, inter alia, fraud, violation of Civil Code Section 2932.5, cancellation of instruments, quiet title, breach of contract, violation of RESPA, breach of covenant of good faith and fair dealing, violation of the Truth-In-Lending Act ("TILA")

(15 U.S.C. §§ 1601, et seq.), rescission, predatory lending in violation of California's Business and Professions Code § 17200, unfair and deceptive business act practices and preliminary and permanent injunction arising out of a mortgage loan refinance transaction. (Notice of Removal, ECF No. 1, Ex. 1, p. 1.)

The action was thereafter removed to this Court on the basis of federal question jurisdiction over Givant's TILA and RESPA causes of action, and supplemental jurisdiction over her state law claims. (Id. at ¶ 6.)

Givant filed her First Amended Complaint on January 13, 2012. (See FAC, ECF 14.) On January 13, Vitek filed its Motion to Dismiss (ECF No. 19) and On February 28, Everhome filed its Motion to Dismiss (ECF No. 29.)*fn7

STANDARD FOR 12(b)(6) MOTION TO DISMISS

On a motion to dismiss for failure to state a claim under Rule 12(b)(6), 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, 554-55 (2007) (internal citations and quotations omitted). Though "a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, 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. at 555 (internal citations and quotations omitted).

A plaintiff's factual allegations must be enough to raise a right to relief above the speculative level. Id. (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-36 (3d ed. 2004) ("The pleading must contain something more. . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action")).

Moreover, "Rule 8(a)(2) . . . requires a 'showing,' rather than a blanket assertion of entitlement to relief. 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." Twombly, 550 U.S. at 555, n.3 (internal citations omitted). A pleading must contain "only enough facts to state a claim to relief that is plausible on its face." Id. at 570; see also Ashcroft v. Iqbal, 556 U.S. 662, 677-679 (2009). If the "plaintiffs . . . have not ...


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