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Angela Margis v. U.S. Bank

January 18, 2013

ANGELA MARGIS, PLAINTIFF,
v.
U.S. BANK, N.A., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER & FINDINGS AND RECOMMENDATIONS

Plaintiff, who proceeds pro se, filed this action along with an application to proceed in forma pauperis on July 16, 2012. Dkts. 1, 3. Before the court could screen the complaint and rule on plaintiff's motion pursuant to 28 U.S.C. § 1915, defendant Sand Canyon Corporation f/k/a Option One Mortgage Corporation ("Sand Canyon") moved to dismiss the complaint. Dkt. 5.*fn1

Plaintiff has submitted an affidavit making the showing required by 28 U.S.C. § 1915(a)(1). Accordingly, the request to proceed in forma pauperis will be granted.

The motion to dismiss was originally noticed for hearing on September 20, 2012. Dkt. 9. Upon review of the motion and plaintiff's opposition to it (dkt. 11), the court determined that oral argument would not be of material assistance and so vacated the hearing and submitted the motion on the record on September 13, 2012 (dkt. 12).

After reviewing the papers in support of and in opposition to defendant's motion, the court's record in this matter, and the applicable law, the court now FINDS AS FOLLOWS: BACKGROUND

Because the factual allegations contained in the complaint which give rise to this action are sparse, the background facts are also taken from defendant's motion to dismiss and the exhibits attached thereto.*fn2 On July 21, 2005, plaintiff obtained two loans secured by the real property located at 125 Oak Avenue, Woodland, California 95695 ("the property"). See Dkts. 1 at 5; 5 at 3; 6-1; 6-2. Both loans were subsequently assigned to Sand Canyon on or about December 14, 2005. See Dkts. 1 at 5-6; 5 at 4. On April 30, 2008, plaintiff entered into a loan modification agreement with defendant whereby the terms of the larger of the two loans were altered as set forth therein. See Dkt. 6-5. Plaintiff received a notice of default with respect to that loan "on or around mid June 2009." Dkts. 1at 10; 6-6. In December 2009, that loan was assigned to defendant U.S. Bank National Association ("U.S. Bank"). See Dkts. 1 at 10; 5 at 4. Eventually, the property was foreclosed-upon and sold at a trustee's sale on December 27, 2011. Dkt. 6-8.

Plaintiff's original complaint, filed on July 16, 2012, alleges violations of the federal Truth in Lending Act ("TILA"), 15 U.S.C. § 1640 et seq., the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2605 et seq., and a host of state law claims including breach of contract, fraud, deceit, collusion, forgery, perjury, negligence, slander, intentional infliction of emotional distress and unfair competition, Bus.& Prof. Code § 17200. See Dkt. 1.

The gravamen of plaintiff's allegations appear to be that all loan documents which she signed in connection with securing the two loans were fraudulent, false, illegal, and null and void.

Before either defendant was properly served with the complaint, Sand Canyon filed a motion to dismiss on August 8, 2012. Dkt. 5. Plaintiff opposed the motion on September 5, 2012 but never completed service on defendant U.S. Bank. Without notice or leave of this court, plaintiff filed a First Amended Complaint ("FAC") on September 21, 2012 including more factual allegations than contained in the original complaint. Dkt. 13.

DISCUSSION

Defendant U.S. Bank, N.A.

As noted above, plaintiff names U.S. Bank as an additional defendant to this action. Dkt. 1. A review of the record reveals that U.S. Bank has never been served with the complaint. Nor has this defendant joined in Sand Canyon's motion or filed its own motion to dismiss. Nonetheless, the court will consider the motion to dismiss as equally applicable to this defendant who stands in the same position of liability as Sand Canyon. See Abagninin v. AMVAC Chemical Corp., 545 F.3d 733, 742-43 (9th Cir. 2008) (dismissing with prejudice non-served defendants who were in a similar position to other defendants and where plaintiff could not allege essential elements of the action applicable to all defendants).

Defendant's Request for Judicial Notice

Defendant requests that the court take judicial notice of eight documents: (1) both deeds of trust executed on July 21, 2005 secured by the property at 125 Oak Avenue, Woodland, California 95695 (dkts. 6-1; 6-2); (2) the assignments of both deeds of trust on November 14, 2005 (dkts. 6-3; 6-4); (3) the loan modification agreement executed on April 30, 2008 (dkt. 6-5); (4) the notice of default and election to sell under deed of trust dated June 6, 2009 (dkt. 6-6); (5) the assignment of the loan for $352,000.00 to ...


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