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Rosalia Mariz v. Jp Morgan Chase Bank

October 16, 2012

ROSALIA MARIZ,
PLAINTIFF,
v.
JP MORGAN CHASE BANK, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: M. James LorenzUnited States District Court Judge

ORDER GRANTING MOTION TO DISMISS WITHOUT LEAVE TO AMEND [DOC. 7]

Plaintiff Rosalia Mariz commenced this action against JP Morgan Chase Bank ("JP Morgan") and Laguna Equity Funding, among others. On June 28, 2012, the two defendants removed this action to this Court. This case arises out of the foreclosure of Plaintiff's home in Vista, California. Also, Laguna Equity Funding has since been voluntarily dismissed without prejudice. (Doc. 9.) Defendant JP Morgan now moves to dismiss the Second Amended Complaint ("SAC"). Plaintiff opposes.

The Court found this motion suitable for determination on the papers submitted and without oral argument. See Civ. L.R. 7.1(d.1). (Doc. 11.) For the following reasons, the Court GRANTS WITHOUT LEAVE TO AMEND Defendant's motion to dismiss.

BACKGROUND

On or about December 26, 2007, Plaintiff entered into a mortgage loan with Defendant for $810,000.00 secured by a Deed of Trust ("DOT") for property located at 30159 Disney Lane, Vista, California, 92084 (also defined as the "subject property"). (SAC ¶ 15--16.) On January 7, 2008, the DOT was recorded with the San Diego County Recorder's Office, which lists Defendant as the lender and beneficiary, Plaintiff as the borrower, and Chicago Title as the Trustee. (Id. ¶ 15.)

On June 25, 2009, a Notice of Default and Election to Sell Under Deed of Trust was executed and then recorded with the San Diego County Recorder's Office. (SAC ¶ 24.) Four days later, a Substitution of Trustee was executed, naming NDEX West, LLC as the new trustee, which was recorded sometime thereafter. (Id. ¶ 25.)

In September 2009, the Notice of Trustee's Sale was executed and then recorded. (SAC ¶ 26.) On December 21, 2009, Plaintiff contacted Defendant via mail, and requested a loan-modification arrangement, citing severe hardship. (Id. ¶ 27.) During the period from April 14, 2010 to July 14, 2010, Plaintiff exchanged six emails regarding loan modification and rescission the sale of the subject property with Tiffany Waiyaki from the Home Lending Executive Office for Chase Home Finance. (Id. ¶¶ 29, 31.) Plaintiff alleges that "Tiffany Waiyaki had assured Plaintiff that the sale of the property would not take place, because she was in the process of a loan modification." (Id. ¶ 30.)

However, on May 26, 2010, the subject property was sold at a public auction. (Id. SAC ¶ 28.) On June 3, 2010, a Trustee's Deed Upon Sale was executed and then recorded, which indicates that Southland Home Mortgage, LLC purchased the subject property. (Id.) Then, on June 9, 2010, Tiffany Waiyaki sent Plaintiff an email stating that Defendant was in the process rescinding the sale to Southland but that the process would take time. (Id. ¶ 31; SAC Ex. 7.)

Plaintiff has three remaining claims alleged in her SAC: (1) breach of the implied covenant of good faith and fair dealing; (2) violation of the Truth in Lending Act ("TILA"); and (3) violation of Real Estate Settlement and Procedures Act ("RESPA"). Defendant now moves to dismiss the SAC. Plaintiff opposes.

LEGAL STANDARD

The court must dismiss a cause of action for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). The court must accept all allegations of material fact as true and construe them in light most favorable to the nonmoving party. Cedars-Sanai Med. Ctr. v. Nat'l League of Postmasters of U.S., 497 F.3d 972, 975 (9th Cir. 2007). Material allegations, even if doubtful in fact, are assumed to be true. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). However, the court need not "necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) (internal quotation marks omitted). In fact, the court does not need to accept any legal conclusions as true. Ashcroft v. Iqbal, 556 U.S. 662, - , 129 S. Ct. 1937, 1949 (2009)

"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause action will not do." Twombly, 550 U.S. at 555 (internal citations omitted). Instead, the allegations in the complaint "must be enough to raise a right to relief above the speculative level." Id. "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully."

A complaint may be dismissed as a matter of law either for lack of a cognizable legal theory or for insufficient facts under a cognizable theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984).

Generally, courts may not consider material outside the complaint when ruling on a motion to dismiss. Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). However, documents specifically identified in the complaint whose authenticity is not questioned by parties may also be considered. Fecht v. Price Co., 70 F.3d 1078, 1080 n.1 (9th Cir. 1995) (superceded by statutes on other grounds). Moreover, the court may consider the full text of those documents, even when the complaint quotes only selected portions. Id. It may also consider material ...


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