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Carl A. Impink v. Bank of America

July 23, 2012


The opinion of the court was delivered by: Barry Ted Moskowitz, Chief Judge United States District Court


Defendants Bank of America, N.A. (erroneously sued as "Bank of America Attn: Document Services [Foreclosure]") and BAC Home Loans Servicing, L.P. ("BACHLS") have filed a motion to dismiss Plaintiff's Amended Complaint. For the reasons set forth herein, the Court GRANTS the motion to dismiss, and DENIES Plaintiff's request for a continuance.


In September 2005, Plaintiff borrowed $400,000 from Universal Savings Bank, F.A., a federal savings bank. (RJN (Doc. 30-2), Ex. A.) According to the terms of the note, the loan's interest rate of 5.25% was fixed for three years, after which the interest rate would adjust annually based on an Index plus 2.25%. (Id.) Plaintiff's loan was secured by a deed of trust on property located at 13970 Olivevista Drive, Jamul, California 91935 (the "Property"). (RJN Ex. E.) The deed of trust names MERS as the beneficiary. (Id.)

On August 18, 2009, a Notice of Default was recorded against the Property by ReconTrust Company, N.A., "as agent for the Beneficiary." (RJN Ex. P.)

On April 1, 2010, MERS recorded an assignment by which MERS transferred its beneficial interest in the Deed of Trust to BACHLS. (RJN Exs. P, Q.)

Plaintiff commenced this matter on January 19, 2011, by filing a complaint (the "Complaint") alleging sixteen separate causes of action based on various alleged misstatements and misrepresentations relating to the underlying loan. On September 6, 2011, the Court entered an order (Doc. 23) dismissing each of Plaintiff's sixteen causes of action for failure to state a claim.


Under Fed. R. Civ. P. 8(a)(2), the plaintiff is required only to set forth a "short and plain statement" of the claim showing that plaintiff is entitled to relief and giving the defendant fair notice of what the claim is and the grounds upon which it rests. Conley v. Gibson, 355 U.S. 41, 47 (1957). A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) should be granted only where a plaintiff's complaint lacks a "cognizable legal theory" or sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988).

When reviewing a motion to dismiss, the allegations of material fact in plaintiff's complaint are taken as true and construed in the light most favorable to the plaintiff. See Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). Although detailed factual allegations are not required, factual allegations "must be enough to raise a right to relief above the speculative level." Bell Atlantic v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007). "A plaintiff's obligation to prove the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged--but it has not show[n] that the pleader is entitled to relief." Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937, 1950 (2009) (internal quotation marks omitted). A complaint filed by a pro se plaintiff is held to less stringent standards than pleadings drafted by attorneys. Haines v. Kerner, 404 U.S. 519, 520-21 (1972).


Plaintiff's amended complaint does nothing to cure the multitude of defects identified by the Court in the September 6, 2011 order dismissing the original Complaint. The entire substantive content of Plaintiff's Amended Complaint is set forth in two numbered paragraphs, which state (verbatim):

1. Amended First Cause of Action- Plaintiff asserts that the lender offered a "predatory loan" with an expectation that the Plaintiff would be forced into a default when the ARM elements of the loan were executed by the lender. The profit potential to the purchasers of said loan fully expected to realize the increased income stream of the ARM loan at the expense of the Plaintiff. Such "bait and switch" tactics of the mortgage broker and lender are exacerbated by the courts acceptance of such practices as a mere "doing business" normally, when it is an obvious perversion of a well established process. By not providing ARM disclosures as required by law, the mortgage broker and lender have conspired to defraud the Plaintiff of his property, which would have been obvious to any knowledgeable buyer. Thus, "elder abuse" applies to this Plaintiff. The causes of action of the original complaint are included herein by reference.

2. Amended Second Cause of Action- Plaintiff asserts that the Defendant/lender is pursuing and unjust enrichment in violation of commercial law. Plaintiff asks the court to set aside the sale, cancel the trustee's ...

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