The opinion of the court was delivered by: Honorable Percy Anderson, United States District Judge
Present: The Honorable PERCY ANDERSON, UNITED STATES DISTRICT JUDGE
Paul Songco Not Reported N/A
Deputy Clerk Court Reporter Tape No.
Attorneys Present for Plaintiffs: Attorneys Present for Defendants:
Proceedings: IN CHAMBERS - COURT ORDER
Before the Court is a Motion to Dismiss the First Amended Complaint, filed by defendant Aurora Loan Services, LLC ("Defendant"). Plaintiff Avedis Barsoumian, as trustee for the Avedis & Maria Barsoumian Family Trust, has filed an Opposition. Pursuant to Rule 78 of the Federal Rules of Civil Procedure and Local Rule 7-15, the Court finds this matter is appropriate for decision without oral argument. The hearing calendared for December 3, 2012 is vacated, and the matter taken off calendar.
Plaintiff was the owner of the real property located at 4240 Artesia Boulevard, Torrance, CA 905041 (the "Property"). The Property is commercial property from which Plaintiff runs a carpeting business. On December 7, 2006, Plaintiff obtained a $1,885,000.00 loan from GreenPoint Mortgage Funding, Inc., secured by a Deed of Trust to the Property. Shortly thereafter, Defendant began servicing Plaintiff's commercial loan. At some point prior to 2009, Plaintiff defaulted on their loan obligations and a Notice of Trustee's Sale was recorded on October 16, 2009. In early 2010, Plaintiff received a loan modification from U.S. Bank, N.A., who had become the owner of the Note and Mortgage by assignment, and the Notice of Trustee's sale was rescinded. Plaintiff again defaulted on his loan obligations and a Notice of Default was recorded on November 9, 2011. Plaintiff alleges that after falling behind on his payments that second time, he contacted Defendant to negotiate a loan modification plan. Defendant, merely the servicer of the loan, responded that it did not have the authority to grant a forbearance or negotiate any modification. After Plaintiff failed to cure that second default, a Notice of Trustee's Sale was again recorded on February 10, 2012, indicating that the Property would be sold at a non-judicial foreclosure sale on March 8, 2012. The Property was eventually sold at a trustee's sale on March 22, 2012. The trustee's deed upon sale was recorded on April 12, 2012
On March 19, 2012, Plaintiff filed this action in Los Angeles Superior Court, alleging the following claims (1) rescission (i.e. wrongful foreclosure); (2) breach of contract; (3) fraud; and (4) violation of the Truth in Lending Act ("TILA"), 15 U.S.C. § 1601 et seq. Defendant removed the action to this Court on May 21, 2012, on the basis of diversity jurisdiction and federal question jurisdiction. 28 U.S.C. §§ 1331, 1332. Sometime after the filing of the Complaint, the purchaser of the Property filed an unlawful detainer action in Los Angeles Superior Court seeking to eject Plaintiff from the Property. On July 11, 2012, Plaintiff filed a Petition for Temporary Restraining Order, seeking to enjoin Plaintiff's eviction. The Court denied Plaintiff's Petition on July 23, 2012.
On September 26, 2012, in response to Defendant's Motion to Dismiss the Complaint, Plaintiff filed the First Amended Complaint ("FAC"). The allegations in the First Amended Complaint mirrored those in the original Complaint in all material respects. Defendant now moves to dismiss the First Amended Complaint.
Having considered the parties' submissions, and for the reasons that follow, the Court grants Defendant's Motion and dismisses the ...