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Mona Lisa Villagomez v. Jpmorgan Chase Bank

July 25, 2012


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


Pending before the Court is the "Motion to Dismiss Pursuant to Rule 12(b)(6)" (Doc. 10), filed by Defendants JPMorgan Chase Bank N.A. ("JPM") and Quality Loan Service Corporation ("QLS") (collectively, "Defendants"). For the reasons set forth herein, the Court DISMISSES Plaintiff's complaint without prejudice.


On September 20, 2006, Plaintiff and her husband borrowed $337,500.00 from Washington Mutual Bank, FA. (Doc. 10-2, Defendants' "Request for Judicial Notice" ("RJN"), Ex. A.) The loan was secured by a Deed of Trust on property located at 6010 San Miguel Road, Bonita, California 91902 (the "Property"). (Id.) The Deed of Trust identifies the "Lender" as "Washington Mutual Bank, FA." (Id.) The Deed of Trust identifies the Trustee as "California Reconveyance Company, a California Corp[.]" (Id.)

On July 26, 2010, a Notice of Default and Election to Sell was recorded. (RJN, Ex. B.) The Notice of Default was issued by Quality Loan Service Corp., as "agent for beneficiary[.]" The notice informed Plaintiff and her husband that they were in default in the amount of all principal and interest payments due on the loan since May 1, 2009 (for a total sum of $32,086.58), and explained that payments should be made to "JPMorgan Chase Bank, N.A.[,] C/O Quality Loan Service Corp." (Id.) The Notice of Default was accompanied by a "Declaration of Compliance" stating:

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 as required by Cal.

Civ. Code Section 2923.5. Thirty days or more have elapsed since these due diligence efforts were completed. (Id.) The Declaration of Compliance also certified "under penalty of perjury under the laws of the State of California that the above is true and correct," was signed by John Gilvarry on behalf of JPM, and was dated July 16, 2010. (Id.)

On September 8, 2010, JPM caused to be recorded a Substitution of Trustee, stating that it was the present beneficiary under the Deed of Trust, and substituting QLS as trustee. (RJN, Ex. C.) On March 11, 2011, QLS caused to be recorded a Notice of Trustee's Sale, setting the date of sale for April 4, 2011. (RJN, Ex. D.) On April 4, 2011, the Property was sold at a public foreclosure auction to Federal Home Loan Mortgage Corporation (the "Grantee"). (RJN, Ex. E.) On April 13, 2011, QLS caused to be recorded a Trustee's Deed Upon Sale, which granted and conveyed title to the Property to the Grantee. (Id.)

In her verified complaint, filed in the Superior Court of California, County of San Diego, on March 29, 2011, Plaintiff alleges that the Notice of Default was defective, that QLS did not have the authority to conduct a valid foreclosure sale on the Property, and that the Deed of Trust contained non-disclosures and omissions. (RJN, Ex. F.) Plaintiff asserts the following claims: (1) violation of California Civil Code § 2923.5; (2) fraud; (3) intentional misrepresentation; (4) violation of California Civil Code § 2923.6; (5) violation of California Civil Code § 1572; (6) violation of California Business and Professions Code § 17200; (7) violation of Truth in Lending Act ("TILA"), 15 U.S.C. § 1601 et seq.


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).


Defendants have moved to dismiss Plaintiff's complaint on several grounds. The Court ...

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