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Kwang Jang and Amy Jang v. 1st United Bank

July 19, 2012

KWANG JANG AND AMY JANG, PLAINTIFFS,
v.
1ST UNITED BANK, FORMERLY REPUBLIC FEDERAL BANK, N.A., FORMERLY HEMISPHERE NATIONAL BANK, ET AL.
DEFENDANTS.



ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

This matter comes before the Court on Defendants 1st United Bank, formerly Republic Federal Bank, N.A., formerly Hemisphere National Bank, Mortgage Electronic Registration Systems, Inc. ("MERS") and U.S. Bank, N.A., as trustee for Morgan Stanley Mortgage Loan Trust 2006-1 AR's (collectively "Defendants") Motion to Dismiss (Doc. #12) Plaintiffs Amy and Kwang Jang's ("Plaintiffs") Complaint (Doc. #2), pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiffs oppose Defendants' motion.*fn1

For the reasons set forth below, Defendants' Motion to Dismiss 2 is granted. 3 4

I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

This action arises out of a non-judicial foreclosure of real 6 property located at 840 Wedgewood Court in West Sacramento, 7 California ("Subject Property"). See Plaintiffs' Complaint, Doc. 8 #2 ("Comp.") at ¶¶ 1, 42, 48-49. In November 2005, Plaintiffs 9 borrowed an unspecified amount from an unspecified lender, which was secured by the Subject Property. Id. at ¶¶ 22. Plaintiffs subsequently defaulted on the loan sometime in November 2009, after their March 2009 application for a loan modification was rejected. Id. at ¶¶ 25-28, 33. Plaintiffs received a letter regarding their default, and they subsequently applied again for a loan modification. Id. at ¶¶ 33-38. Although Plaintiffs were told by "Yuriko" at 1st United Bank that they had been approved for a modification, the modified payments were even higher than the existing payments Plaintiffs already could not afford. Id. at ¶¶ 38-39. Plaintiffs' continued requests to the bank, to reduce the principle owed, were denied. Id. at ¶ 40. Sometime in January or February 2011, various defendants began the foreclosure process. Id. at ¶¶ 42-61.

Through this suit, Plaintiffs "are seeking to discover who owns their home and has the authority to modify it [sic]." Comp. at ¶ 21. Plaintiffs allege Defendants "failed, refused and/or neglected to work with [them] in any reasonable way to avoid foreclosure . . . ," and "purposefully deceived" them in wrongfully foreclosing on the Subject Property; for these reasons, Plaintiffs allege they are entitled to equitable and monetary relief on their 2 nine asserted causes of action. Id. at ¶¶ 193-197. 3

On May 1, 2012, this Court issued an Order to Show Cause 4 regarding Plaintiffs' failure to serve named Defendants First 5 American Title and Cal-Western Reconveyance Corporation. Doc. #26. 6

Because Plaintiffs did not respond to this Court's Order, on May 7 14, 2012, this Court Ordered First American Title and Cal-Western 8 Reconveyance Corporation dismissed from this action pursuant to 9 Federal Rule of Civil Procedure 4(m).

II. OPINION

A. Legal Standard

A party may move to dismiss an action for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). In considering a motion to dismiss, the court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322 (1972). Assertions that are mere "legal conclusions," however, are not entitled to the assumption of truth. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To survive a motion to dismiss, a plaintiff needs to plead "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. Dismissal is appropriate where the plaintiff fails to state a claim supportable by a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

Upon granting a motion to dismiss for failure to state a 2 claim, the court has discretion to allow leave to amend the 3 complaint pursuant to Federal Rule of Civil Procedure 15(a). 4

"Dismissal with prejudice and without leave to amend is not 5 appropriate unless it is clear . . . that the complaint could not 6 be saved by amendment." Eminence Capital, L.L.C. v. Aspeon, Inc., 7 316 F.3d 1048, 1052 (9th Cir. 2003). 8

B. Motion to Dismiss*fn2

1. Federal Claims for ...


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