Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Monica Grajeda v. Bank of America

October 9, 2012

MONICA GRAJEDA,
PLAINTIFF,
v.
BANK OF AMERICA, N.A., ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Irma E. Gonzalez United States District Judge

ORDER: 1. GRANTING DEFENDANTS' MOTION PREJUDICE; TO DISMISS WITHOUT [Doc. No. 4] 2. DENYING PLAINTIFF'S REQUEST FOR AN RESPOND AS MOOT. EXTENSION OF TIME TO [Doc. No. 8]

Before the Court is Defendants' motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), [Doc. No. 4], and Plaintiff's request for an extension of time to respond, [Doc. No. 8]. For the reasons below, Defendants' motion is GRANTED and Plaintiff's request is DENIED.

BACKGROUND

This is a mortgage case. On June 12, 2012, Plaintiff Monica Grajeda, proceeding pro se, filed a complaint in San Diego County Superior Court alleging state law claims for wrongful foreclosure, slander of title, cancellation of instruments, negligence, fraud, declaratory relief, unfair business practices under California Business and Professions Code § 17200, and to quiet title. [Doc. No. 1 Ex. A.] On July 11, 2012, Defendant Federal Home Loan Mortgage Corporation ("Freddie Mac") timely removed to this court as a agency of the United States under 28 U.S.C. §§ 1345 and 1442. [See Doc. No. 1 at 2.] On July 23, 2012, Defendants filed the present motion to dismiss for failure to sate a claim, [Doc. No. 8.]. Though no opposition has been filed, on August 23, 2012, Plaintiff filed a declaration requesting an extension of time to retain counsel, respond to Defendants' motion to dismiss, and prepare an amended complaint. [Doc. No. 8.]

LEGAL STANDARD

Under Federal Rule of Civil Procedure 8(a)(2), "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). Motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) test the sufficiency of this required showing. New Mexico State Investment Council v. Ernst & Young LLP, 641 F.3d 1089, 1094 (9th Cir. 2011). "Dismissal is proper when the complaint does not make out a cognizable legal theory or does not allege sufficient facts to support a cognizable legal theory." Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011). And though pro se complaints enjoy "the benefit of any doubt," Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010), Rule 8 still "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678.

DISCUSSION

Even affording every benefit of the doubt, Plaintiff's complaint fails to allege sufficient facts to support any cognizable legal theory. Thus, to the extent and for the additional reasons specified below, Defendants' motion to dismiss is GRANTED. Further, because leave to amend is granted with ample time to retain counsel if necessary, Plaintiff's request for an extension of time is DENIED as moot.

1. Wrongful Foreclosure Claim

Wrongful foreclosure claims require allegations of credible tender. See Alicia v. G.E. Money Bank, 2009 WL 2136969, at *3 (N.D. Cal. July 16, 2009) ("When a debtor is in default of a home mortgage loan, and a foreclosure is either pending or has taken place, the debtor must allege a credible tender of the amount of the secured debt to maintain any cause of action for wrongful foreclosure."). Plaintiff makes no such allegation, [see Doc. No. 1-1], and thus her claim must be dismissed. Alicia, 2009 WL 2136969, at *3. But this failure could potentially be cured through amendment, and thus Plaintiff's wrongful foreclosure claim is DISMISSED WITHOUT PREJUDICE.

2. Quiet Title Claim

So, too, a "quiet title action is doomed in the absence of Plaintiffs' tender of the full amount owed." Gjurovich v. Cal., 2010 WL 4321604, at *8 (E.D. Cal. Oct. 26, 2010). Plaintiff fails to allege tender, see supra, and thus her claim to quiet title fails. Gjurovich, 2010 WL 4321604, at *8. But because this may be cured, Plaintiff's claim to quiet title is DISMISSED WITHOUT PREJUDICE.

3. Slander of Title Claim

Slander of title claims require "(1) a publication, (2) which is without privilege or justification, (3) which is false, and (4) which causes direct and immediate pecuniary loss." Manhattan Loft, LLC v. Mercury Liquors, Inc., 173 Cal.App.4th 1040, 1050 (2009). Plaintiff makes no allegation that the notice of default at issue was false; to the contrary, the complaint plainly states that Plaintiff "fell behind on her mortgage payment" before the "Notice of Default [] was entered," which appears to concede the truth of the subject publication. [Doc. No. 1-1 at 4] This deficiency is fatal here, see Velasco v. Security Nat. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.