FINDINGS & RECOMMENDATIONS
On September 27, 2012, the court held a hearing on defendants' June 25, 2012 motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) and motion to strike pursuant to Federal Rule of Civil Procedure 12(f). Robert Hale appeared in pro per. Plaintiff Catherine Hale did not make an appearance. Tim Ceperley appeared for defendants World Savings Bank ("World Savings") and Golden West Savings Association Service Company ("Golden West"). This action was referred to the undersigned pursuant to Local Rule 302(c)(21). On review of the motions, pleadings filed in support and opposition, and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:
On May 31, 2012, Robert and Catherine Hale (collectively, "plaintiffs") initiated this action against defendants Golden West, World Savings, and Does 1-20, setting forth the following claims related to real property located at 3243 Congressional Circle, Fairfield, California 94534 ("the Subject Property"): wrongful foreclosure, fraud, quiet title, declaratory relief, and violations of the Real Estate and Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2601, et seq., the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, and the Truth In Lending Act ("TILA"), 15 U.S.C. § 1641(g). Plaintiffs seek damages and injunctive relief.
At the hearing on this matter, Robert Hale averred that non-judicial foreclosure proceedings have not yet been initiated as to the Subject Property. Instead, plaintiffs have received "notices of pre-foreclosure" from Wells Fargo Bank and, previously, from Wachovia Bank.*fn1 As of the date of the hearings, plaintiffs continue to reside at the Subject Property.
2. Allegations in Plaintiffs' Complaint
On February 20, 2004, plaintiffs executed a promissory note for $551,000.00 with World Savings in order to purchase the Subject Property. Defs.' Req. for Judicial Notice ("RJN"), Ex. A.*fn2 A Deed of Trust ("DOT") was filed with the Solano County Recorder's Office on February 27, 2004, and identifies World Savings as the Beneficiary and Golden West as the Trustee. Id., Ex. B. Plaintiffs identify Defendant Doe 6 as the Servicer of the loan. Compl. at 3, ¶ 9.
Plaintiffs' claims are premised on two general theories. First, plaintiffs assert that none of the defendants can show proper receipt or possession of either the Promissory Note or Deed of Trust, and, as such, do not have a perfected and secured claim in the Subject Property. Next, plaintiffs allege that defendants violated the express terms of the Pooling and Servicing Agreement ("PSA") governing the securitization of plaintiffs' mortgage.
On June 25, 2012, defendants filed a motion to dismiss and a motion to strike.
Plaintiffs filed an opposition on August 16, 2012.
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal sufficiency of the complaint. N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). "Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901
F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1974 (2007). Thus, a defendant's Rule 12(b)(6) motion challenges the court's ability to grant any relief on the plaintiff's claims, even if the plaintiff's allegations are true.
In determining whether a complaint states a claim on which relief may be granted, the court accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989).
The court is permitted to consider material properly submitted as part of the complaint, documents not physically attached to the complaint if their authenticity is not contested and the complaint necessarily relies on them, and matters of public record. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001). Matters of public record include pleadings and other papers filed with a court. Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986). The court need not accept as true conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
Finally, a federal court has an independent duty to assess whether federal subject matter jurisdiction exists, whether or not the parties raise the issue. See United Investors Life Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960, 967 (9th Cir. 2004) (stating that "the district court had a duty to establish subject matter jurisdiction over the removed action sua sponte, whether the parties raised the issue or not"); accord Rains v. Criterion Sys., Inc., 80 F.3d 339, 342 (9th Cir. 1996). Federal district courts are courts of limited jurisdiction that "may not grant relief absent a constitutional or valid statutory grant of jurisdiction," and "[a] federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears." A--Z Int'l v. Phillips, 323 F.3d 1141, 1145 (9th Cir. 2003) (citations and quotation marks omitted). The court must sua sponte dismiss a case for lack of subject matter jurisdiction. See ...