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Title: Olasumbo Titilola Ajetunmobi v. Clarion Mortgage Capital

July 17, 2012

TITLE: OLASUMBO TITILOLA AJETUNMOBI
v.
CLARION MORTGAGE CAPITAL, INC., ET AL.



The opinion of the court was delivered by: Present: The Honorable David O. Carter, Judge

O

CIVIL MINUTES -- GENERAL

Julie Barrera N/A Courtroom Clerk Court Reporter ATTORNEYS PRESENT FOR PLAINTIFF: ATTORNEYS PRESENT FOR DEFENDANT: None Present None Present

PROCEEDINGS: (IN CHAMBERS): ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

Before the Court is a Motion to Dismiss (the "Motion") filed by Defendants Countrywide Home Loans, Inc., Bank of America, N.A., Mortgage Electronic Registration Systems, Inc., and ReconTrust Company, N.A. (collectively "Defendants"). Mot. (Dkt. 5). The Court finds the matter appropriate for decision without oral argument. Fed R. Civ. P. 78; Local R. 7-15. After considering the moving, opposing, and replying papers, the Court GRANTS the Motion.

I. Background

A. Loan Origination and Initial Transfers and Assignments

Plaintiff Olusumbo Ajetunmobi ("Plaintiff") signed a loan agreement and promissory note (the "Note") on February 23, 2007 to purchase a property located at 6728 Stanford Way, Whittier, CA 90601 (the "Subject Property"). Compl. Ex. A (Dkt. 1) at 1, 3. The Deed of Trust securing Plaintiff's loan names Defendant Clarion Mortgage Capital, Inc. ("Clarion") as the lender and names Defendant Mortgage Electronic Registration Systems, Inc. ("MERS") as the beneficiary. Id. at 1. Soon after the loan agreement was signed in February 2007, Defendant Clarion purportedly transferred Plaintiff's note to Defendant Countrywide. Compl. (Dkt. 1) ¶ 18.

Plaintiff alleges that she was not provided with the disclosures required by federal regulations either at the time of the loan origination or the transfer to Defendant Countrywide Home Loans, Inc. ("Countrywide"). As a result, she alleges that the conveyance of the Subject Property to Defendant Countrywide was never formalized and that therefore neither Defendant Countrywide nor its successors or assigns have a valid claim on the Subject Property. Id. ¶¶ 19-22.

B. Defendant Bank of America's Involvement

In September 2009, Plaintiff started receiving daily phone calls from representatives of Defendant Bank of America, N.A. ("BANA"). Id. ¶ 23. Plaintiff also received demand notices and a Notice of Intent to Accelerate that all stated, "[BANA] services your home loan on behalf of the holder of your note." Compl. Ex. B, B-1, B-2, C (Dkt. 1). Contemplating a loan modification, Plaintiff requested documents disclosing Defendant BANA's interests in her loan and the name of the noteholder. Compl. (Dkt. 1)

¶ 26; Compl. Ex. D (Dkt. 1).

In July 2011, Plaintiff received a letter from Defendant BANA informing her that the servicing of her loan would transfer from Defendant BAC Home Loan Servicing, LP ("BAC") to Defendant BANA. Compl. (Dkt. 1) ¶ 29. The letter listed Defendant Wells Fargo Bank, N.A. ("Wells Fargo") as the noteholder on whose behalf Defendant BANA was servicing the loan. Compl. Ex. F (Dkt. 1) at 2. The letter specifically stated that Defendant BANA did not own the loan. Id. Plaintiff alleges she relied on this representation and decided to wait to receive a Notice of Assignment of the loan to Defendant Wells Fargo before starting loan modification proceedings. Compl. (Dkt. 1) ¶ 31.

In December 2011, Plaintiff received a copy of an Assignment of Deed of Trust from Defendant BANA showing that Defendant MERS had conveyed the Subject Property to Defendant BANA in September 2011. Compl. (Dkt. 1) ¶ 32; Compl. Ex. G (Dkt. 1). Then, in January 2012, Plaintiff received a notice from Defendant BANA showing that Defendant ReconTrust Company, N.A. ("ReconTrust") had been substituted as holder of the Deed of Trust for Defendant BANA. Compl. (Dkt. 1) ¶ 33; Compl. Ex. H (Dkt. 1).

C. The Instant Motion

Plaintiff filed her complaint with this Court on April 12, 2012. Plaintiff alleges that Defendants BANA, BAC and MERS committed fraudulent acts and violated disclosure laws. Specifically, Plaintiff alleges that Defendant BANA falsely represented that Defendant Wells Fargo owned the loan, that Defendants BANA and BAC falsely represented that they serviced the loan, that Defendants BANA fraudulently concealed the fact that it was claiming rights to the loan, and that Defendants Countrywide, BANA, BAC, and MERS violated the Truth in Lending Act ("TILA") by failing to make certain required disclosures regarding the parties with interest in her loan. Compl. (Dkt. 1) ¶¶ 41, 46, 47, 52, 61. On the basis of these claims, Plaintiff also brings claims for civil conspiracy to defraud, quiet title and cancellation of a deed of trust, violations of California Business and Professions Code sections 17200 et seq., and injunctive and declaratory relief. Id. ¶¶ 51-53, 67, 74-77, 81.

Defendants BANA, MERS, Countrywide, and ReconTrust filed a Motion to Dismiss on May 10, 2012 in which they argue that Plaintiff's complaint should be dismissed because, inter alia, Plaintiff has not tendered the entire amount owing on the loan, Plaintiff has not alleged the elements of fraud with sufficient particularity, and Plaintiff cannot demonstrate that her TILA claims are not time-barred. Mot. (Dkt. 5). Defendant also has made a request that the Court take judicial notice of a number of documents, including two Deeds of Trust, an Assignment of Deed of Trust, a Notice of Default, a Substitution of Trustee, and a Notice of Trustee's Sale.*fn1

II.Legal Standard

Under Federal Rule of Civil Procedure 12(b)(6), a complaint must be dismissed when a plaintiff's allegations fail to set forth a set of facts which, if true, would entitle the complainant to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (holding that a claim must be facially plausible in order to survive a motion to dismiss). The pleadings must raise the right to relief beyond the speculative level; a plaintiff must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555(citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). On a motion to dismiss, this court accepts as true a plaintiff's well-pled factual allegations and construes all factual inferences in the light most favorable to the plaintiff. Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). The court is not required to accept as true legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678.

In evaluating a Rule 12(b)(6) motion, review is ordinarily limited to the contents of the complaint and material properly submitted with the complaint. Clegg v. Cult Awareness Network, 18 F.3d 752, 754 (9th Cir. 1994); Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc.,896 F.2d 1542, 1555 n.19 (9th Cir. 1990). Under the incorporation by reference doctrine, the court may also consider documents "whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading." Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994), overruled on other grounds by 307 F.3d 1119, 1121 (9th Cir. 2002).

A motion to dismiss under Rule 12(b)(6) can not be granted based upon an affirmative defense unless that "defense raises no disputed issues of fact." Scott v. Kuhlmann, 746 F.2d 1377, 1378 (9th Cir. 1984). For example, a motion to dismiss may be granted based on an affirmative defense where the allegations in a complaint are contradicted by matters properly subject to judicial notice. Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010). In addition, a motion to dismiss may be granted based upon an affirmative defense where the complaint's allegations, with all inferences drawn in Plaintiff's favor, nonetheless show ...


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