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Shelley Von Brincken v. Gmac Mortgage

January 24, 2013

SHELLEY VON BRINCKEN, PLAINTIFF,
v.
GMAC MORTGAGE, MORTGAGE ELECTRONIC REGISTRATION SYSTEM, INC., FEDERAL NATIONAL MORTGAGE ASSOCIATION, THE LAW OFFICES OF PITE DUNCAN, LLP., DEFENDANTS.



The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge

ORDER & FINDINGS AND RECOMMENDATIONS

This action arises from a residential mortgage loan obtained by plaintiff on January 14, 2009 for property located in Grass Valley, CA. Plaintiff proceeds pro se in this action, which was referred to the undersigned by E.D. Cal. L.R. 302(c)(21), pursuant to 28 U.S.C. § 636(b)(1). Pending before the undersigned are two motions to dismiss filed by defendants Pite Duncan LLP ("Pite Duncan") (dkt. 8), Mortgage Electronic Registration System, Inc. ("MERS")(dkt. 18) and GMAC Mortgage ("GMAC")(dkt. 18). Also before the undersigned is GMAC's Letter Brief Re: Bankruptcy Stay requesting that the entire action be stayed. Dkt. 23.

Pite Duncan's motion to dismiss (dkt. 8) was originally noticed for hearing on September 26, 2012 and subsequently reset by the court for hearing on October 17, 2012. Dkts. 8, 11. When plaintiff failed to file an opposition, the motion was submitted on the record without oral argument. Dkt. 12. Subsequently, plaintiff filed a belated opposition to the motion on October 10, 2012 ("first opposition"). Dkt. 13. Defendant GMAC filed a Notice of Bankruptcy and Effect of Automatic Stay on October 23, 2012. Dkt. 16. Nevertheless, GMAC and defendant MERS moved to join in Pite Duncan's motion to dismiss (dkt. 17) and also filed their own motion to dismiss on October 26, 2012 (dkt. 18). Plaintiff filed a belated opposition to GMAC and MERS' motions on November 21, 2012 ("second opposition").*fn1 Dkt. 24. All motions remained submitted on the record.

Upon consideration of the briefs in support of and in opposition to the motions to dismiss, and also upon considering GMAC's notice of bankruptcy, the court now FINDS AS FOLLOWS: BACKGROUND

The background facts are taken from the complaint as well as from Pite Duncan's motion to dismiss and the exhibits attached thereto.*fn2 See Dkt. 8. On January 14, 2009, plaintiff executed a promissory note in the amount of $220,000.00 ("the loan"), which was secured by a deed of trust encumbering real property located at 14738 Wolf Rd., Grass Valley, CA 95949 ("the property"). Dkt. 8-3 at 3-4. Defendant GMAC was the lender and servicer of the loan and MERS was the beneficiary who held the right to take any action required of the lender. Dkt. 1 at 7; Dkt. 8-3. Subsequently, plaintiff defaulted on the loan (dkt. 8-3 at 21) and the property was foreclosed-upon and sold to FNMA at a trustee's sale on August 31, 2010 (dkt. 8-3 at 24,27). On October 18, 2010, Pite Duncan (counsel for FNMA), filed an unlawful detainer action against plaintiff in Nevada County Court. Dkt. 8-4 at 2. Thereafter, the parties stipulated that while FNMA was entitled to possession of the property, plaintiff could remain there as an occupant until April 8, 2012. Dkt. 8-4 at 17. But plaintiff did not vacate the property and instead filed Chapter 7 and Chapter 13 Bankruptcy Petitions - both of which have been dismissed (see Register of Actions, Bkrtcy. E.D. Cal., Nos. 12-29795, 12-32776) - along with the instant litigation (dkt. 1).

The complaint, filed on June 25, 2012, alleges violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq., against four defendants. Dkt. 1. The motions to dismiss claim that plaintiff has failed to show: (1) that defendants are debt collectors within the meaning of the FDCPA, and (2) that defendants engaged in debt collection activity. Dkts. 8, 18.

With respect to GMAC's bankruptcy proceedings, GMAC takes the position that despite having filed and joined in motions to dismiss the complaint, those motions cannot be resolved at this time on account of the automatic stay to which GMAC is subject. Dkt. 23 at 1. GMAC further contends that this entire action should be stayed pending resolution of its bankruptcy petition and that it will provide the court with "regular, quarterly updates regarding the status of its bankruptcy case." Dkt. 23 at 1. None of the parties have filed a reply to GMAC's position.

DISCUSSION

Although GMAC provides no explanation for the inconsistency in its position of filing and joining in motions to dismiss on a claim that it does not believe can be presently prosecuted, the court need not resolve this inconsistency. The bases upon which Pite Duncan moves to dismiss the complaint apply equally to all defendants, including GMAC, MERS and FNMA (who has not appeared in this action). This is true because all defendants stand in a position of liability identical to that of Pite Duncan, and resolution of plaintiff's claims can be made by considering the complaint on its face regardless of which defendants move to dismiss. See Silverton v. Dep't of Treasury, 644 F.2d 1341, 1345 (9th Cir. 1981)("A District Court may properly on its own motion dismiss an action as to defendants who have not moved to dismiss where such defendants are in a position similar to that of moving defendants or where claims against such defendants are integrally related."), Columbia Steel Fabricators, Inc. v. Ahlstrom Recovery, 44 F.3d 800, 802 (9th Cir. 1995) (citing to Silverton and upholding sua sponte summary judgment based on res judicata in favor of non-appearing party), 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), McFadden v. Deutsche Bank Nat. Trust Co., 2012 WL 2839810, at *1 (E.D. Cal. 2012) (dismissing non-appearing defendant whose liability was not different from that of appearing defendants).

In considering a motion to dismiss for failure to state a claim upon which relief can be granted, the court must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89, 94 (2007), and construe the pleading in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

In order to avoid dismissal for failure to state a claim a complaint must contain more than "naked assertions," "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim upon which the court can grant relief has facial plausibility. 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." Iqbal, 556 U.S. at 678.

Defendant's Request for Judicial Notice

Pite Duncan asks the court to take judicial notice of ten documents attached to its motion to dismiss. See Dkt. 82. In ruling on a motion to dismiss pursuant to Rule 12(b), the court "may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice." Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007). "A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). Consideration of these documents outside the complaint will not convert the motion into a motion for summary judgment. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir.2003).

Here, the court takes judicial notice of the ten exhibits*fn3 submitted by Pite Duncan because they are all public records whose accuracy cannot reasonably be questioned. See Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986) (abrogated on other grounds) (allowing judicial notice to be taken of records and reports of administrative bodies). Plaintiff ...

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