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Blanca Valero v. Bank of America Home Loans

November 29, 2012



This case, in which plaintiffs are proceeding pro se, is before the undersigned pursuant to Eastern District of California Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). Defendants move to dismiss plaintiffs' second amended complaint for lack of subject matter jurisdiction and, alternatively, failure to state a claim. Dckt. No. 15. For the reasons stated herein, the undersigned recommends that the motion be granted.


On April 26, 2012, plaintiffs filed a complaint against defendants, alleging wrongful foreclosure and objecting to defendants' unlawful detainer action. Dckt. No. 1. Plaintiffs asserted claims for breach of contract, fraud and racketeering, usury and racketeering, and fraud, and contended that this court has subject matter jurisdiction because defendants violated plaintiffs' seventh amendment right to a trial by jury, as well as plaintiffs' fifth and fourteenth amendment rights. Id. at 2, 5-6. Defendants moved to dismiss that complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), arguing that this court lacks jurisdiction and that the complaint fails to state a claim upon which relief may be granted. Dckt. No. 6.

Plaintiffs originally filed an opposition to the motion to dismiss on August 14, 2012. Dckt. No. 7. However, because the opposition was late and did not respond to many of the specific arguments made in the motion to dismiss, plaintiffs were directed to file a revised opposition in which they were to respond to the specific arguments set forth in the motion to dismiss. Dckt. No. 9.

Plaintiffs then filed a further opposition on August 29, 2012. Dckt. No. 11. Also on August 29, 2012, plaintiffs filed a first amended complaint. Dckt. No. 12. However, because plaintiffs were not entitled to amend their complaint as a matter of course and did not have the stipulation of all parties for leave to amend, the amended complaint was construed as a motion to amend pursuant to Federal Rule of Civil Procedure 15(a)(2) and that motion was granted. Dckt. No. 13. Accordingly, plaintiffs were instructed to file a second amended complaint and defendants' motion to dismiss was denied as moot. Id.

On September 17, 2012, plaintiffs filed a second amended complaint. Dckt. No. 14. The complaint asserts that jurisdiction is based upon plaintiffs' Seventh Amendment rights, as well as plaintiff's Fifth and Fourteenth Amendment rights. Id. at 2. The second amended complaint states claims for violation of 42 U.S.C. § 1983, 18 U.S.C. § 241, wrongful foreclosure, and a violation of plaintiffs' "human rights and due process," and vaguely alleges that defendants violated 18 U.S.C. §§ 1341 and 1343. Id. at 6-7.

According to the second amended complaint, plaintiffs obtained a $424,000.00 home loan from Countrywide Home Loans, currently known as Bank of America Home Loans. Id. at 3. Plaintiffs allege, however that defendant "only lent credit and not lawful money of the United States" in violation of 42 U.S.C. § 1983. Id. Plaintiffs contend that the defendants violated "the rule of servicing and the strict rules of foreclosure" by engaging in "unsafe and unsound servicing practices that have caused the plaintiff an unlawful and wrongful foreclosure." Id. at 4. Plaintiffs allege that Countrywide Home Loans, currently known as Bank of America Home Loans, made a false representation and engaged in fraud "as it merely transferred some book entries and never intended to redeem this check in lawful money of the United States but did illegally represent, induce the plaintiff to believe otherwise . . . ." Id. Plaintiffs assert that this also led "to the illegal securitization of plaintiffs' deed of trust" and that "[t]he bank did not disclose the fact that after it sold the Note the bank, (Lender), and Servicer gave up all rights, Title, and Interest but is acting illegally in the servicing capacity to foreclose upon the plaintiffs." Id. at 5. Plaintiffs also allege that the Bank of New York Mellon committed illegal "securitization violations" and initiated a "wrongful foreclosure claim and a breach of payments from a debt when there is no debt in bankruptcy." Id. Plaintiffs contend that their property in Woodland, California entered foreclosure on September 22, 2011, and that plaintiffs received an eviction notice on February 2, 2012. Id. at 6. Plaintiffs claim that the substituted trustee, Recontrust Company, N.A. filed a fraudulent and misleading "Affidavit of Indebtedness, Ownership of Accounts" in violation of § 1983, 18 U.S.C. § 1621, and plaintiff's human rights and due process rights. Id.


A. Legal Standards Under 12(b)(6)

To survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint must contain more than a "formulaic recitation of the elements of a cause of action"; it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "The pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id. (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235- 236 (3d ed. 2004)). "[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, -- U.S. ---, 129 S. Ct. 1937, 1949 (2009) (quoting 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.

In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the party opposing the motion, and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S. 869 (1969). The court will "'presume that general allegations embrace those specific facts that are necessary to support the claim.'" Nat'l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 256 (1994) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)).

The court may consider facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider facts which may be judicially noticed, Mullis v. U.S. Bankr. Ct., 828 F.2d at 1388, and matters of public record, including pleadings, orders, and other papers filed with the court. Mack v. South Bay Beer Distribs., 798 F.2d 1279, 1282 (9th Cir. 1986).

B. Pro Se Standards

The court is mindful of plaintiffs' pro se status. Pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Unless it is clear that no amendment can cure its defects, a pro se litigant is entitled to notice and an opportunity to amend the complaint before dismissal. Lopez v. Smith, 203 F.3d 1122, 1127-28 (9th Cir. 2000); Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987). The court must construe the pleadings of a pro se litigant liberally. Bretz v. Kelman, 773 F.2d 1026, 1027 n. 1 (9th Cir. 1985). However, that liberal interpretation may not supply essential elements of a claim that are not plead. Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992); Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir.1982). Furthermore, "[t]he court is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn ...

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