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Barry Halajian, An Individual v. Deutsche Bank National Trust Company

February 13, 2013

BARRY HALAJIAN, AN INDIVIDUAL
PLAINTIFF,
v.
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR GSAMP TRUST 2005-HE4, MORTGAGE PASS- THROUGH CERTIFICATES, SERIES ) 2005-HE4, A NEW YORK CORPORATION; JP MORGAN CHASE BANK N.A., A NATIONAL BANKING ASSOCIATION INCORPORATED IN NEW YORK; NDEX WEST LLC, A DELAWARE LIMITED LIABILITY COMPANY; AND WHITNEY K. COOK, AN INDIVIDUAL RESIDING IN OHIO; ALL PERSONS KNOWN OR UNKNOWN CLAIMING AN INTEREST IN 4917 E. SOONER DR., FRESNO, CALIFORNIA 93727; AND DOES 1-20 INCLUSIVE, DEFENDANTS.



ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS TO DISMISS (Docs. 30, 32.)

Plaintiff, acting through counsel, brings a second action before this Court seeking injunctive relief, declaratory relief, and damages relating to real property at 4917 East Sooner Ave, Fresno, California. (See 1:12-cv-00798-LJO-SMS.) Plaintiff seeks to enjoin his eviction from his Fresno County residence ("property") after a trustee's sale from the property by bringing six causes of action: (1) a violation of California Civil Code section 2923.5, (2) Wrongful Foreclosure, (3) Lack of Privity of Contract, (4) Quiet Title, (5) Fraud and (6) Declaratory and Injunctive Relief.

Defendants Deutsche Bank National Trust Company and Whitney K. Cook have filed motions to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Defendants and Plaintiff both provided documents to the Court in support of their pleadings of which the Court has taken judicial notice.

For the reasons stated herein, the Court grants in part and denies in part Defendants' Motions to Dismiss for failure to state a viable claim.

I.

BACKGROUND*fn1

On May 18, 2005, Halajian borrowed $175,200.00 from lender Fremont Investment & Loan, signing an adjustable-rate note in which he promised to repay the lender no later than June 1, 2035. The loan was secured by a deed of trust for Halajian's property at 4917 East Sooner Avenue, Fresno, California. Halajian agreed to the terms and covenants of the deed of trust, executing it at the same time as the note. The deed of trust named Fremont General Credit Corporation as the Trustee, and designated Mortgage Electronic Registration Systems, Inc., (MERS) as the nominee for Fremont Investment & Loan, its successors and assigns, to serve as the beneficiary of the deed of trust.

On June 28, 2010, Mortgage Electronic Registration Systems, Inc., as nominee for Fremont Investment & Loan, assigned to Deutsche Bank National Trust Company, as Trustee for GSAMP Trust 2005-HE4, Mortgage Pass-Through Certificates, Series 2005-HE4, all beneficial interest in the deed of trust and note executed by Halajian.

On May 17, 2010, ServiceLink, a Division of Chicago Title Company, on behalf of Chase Home Finance, L.L.C., and its agent NDEX West, LLC, filed a notice of default and intention to sell the property as a result of Halajian's failure to make required loan payments beginning February 1, 2010, and thereafter.

On March 7, 2011, Deutsche Bank filed an unlawful detainer action against Halajian in Fresno County Superior Court (Case No. 11CECL01998). See Deutsche Bank Nat'l Trust Co. v. Halajian, 2012 WL 1076218 at *1 (E.D. Cal. March 29, 2012) (No. 1:12-cv-00447-LJO-GSA).

On April 28, 2011, Deutsche Bank moved for summary judgment in the unlawful detainer action; Halajian did not oppose the motion. Id. The Superior Court granted the motion and entered judgment on May 5, 2011. Id. A writ of execution for restitution of the property issued on June 2, 2011. Id. On June 10, 2011, Halajian moved to set the judgment aside or, in the alternative, stay execution of judgment. Id. On June 13, 2011, the Superior Court denied the motion to set aside the judgment but stayed the writ of execution. Id. After a second motion to set aside the judgment was denied, Halajian appealed to the state appellate court on June 20, 2011.

Id. On June 22, 2011, Halajian moved to stay enforcement of the judgment pending appeal. Id. On June 28, 2011, the Superior Court granted the motion to stay.

Halajian filed a new appeal on October 26, 2011. Id.

On February 27, 2012, Deutsche Bank filed another unlawful detainer complaint against Halajian (12CECL01530). Id. On March 23, 2012, Halajian removed the case to federal court (Case No. 1:12-cv-00447-LJO-GSA). Id. The District Court remanded the action to Fresno County Superior Court on April 17, 2012.*fn2 On or about May 10, 2012, the Fresno County Superior Court entered judgment in favor of Deutsche Bank. Doc. 13-2.

On May 15, 2012, Halajian filed a complaint in propria persona with the District Court against Deutsche Bank National Trust Co., NDEX West LLC, JP Morgan Chase Bank N.A., and Whitney K. Cook. Halajian v. Deutsche Bank Nat'l Trust Co. (Case No. 1:12-cv-00798-LJOSMS). On May 31, 2012 the District Court, on its own motion, dismissed with prejudice Halajian's complaint, calling the pleading "an ill-conceived attempt at legal sleight of hand." Id.

Doc.2.

II.

LEGAL STANDARD Under Federal Rule of Civil Procedure 12(b)(6), a claim may be dismissed because of a plaintiff's "failure to state a claim upon which relief can be granted." A Rule 12(b)(6) dismissal is proper where there is either a "lack of a cognizable legal theory" or "the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988); see also Graehling v. Village of Lombard, Ill., 58 F.3d 295, 297 (7th Cir. 1995). "When a federal court reviews the sufficiency of a complaint, before the reception of any evidence either by affidavit or admissions, its task is necessarily a limited one. The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheurer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683 (1974); Gilligan v. Jamco Development Corp., 108 F.3d 246, 249 (9th Cir. 1997)."[A] complaint should not be dismissed unless 'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Hartford Fire Insurance Co. v. California, 509 U.S. 764, 811, 113 S.Ct 2891 (1993).

The court must also assume that "general allegations embrace those specific facts that are necessary to support the claim." Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 889 (1990). Thus, the determinative question is whether there is any set of "facts that could be proved consistent with the allegations of the complaint" that would entitle plaintiff to some relief. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002). However, courts will not assume that plaintiffs "can prove facts which [they have] not alleged, or that the defendants have violated . . . laws in ways that have not been alleged." Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). Further, although they may provide the framework of a complaint, legal conclusions are not accepted as true and "[t]hreadbare recitals of elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949-50 (2009); see also Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003).

In deciding whether to dismiss a claim under Rule 12(b)(6), the Court is generally limited to reviewing only the complaint. "There are, however, two exceptions ... First, a court may consider material which is properly submitted as part of the complaint on a motion to dismiss .... If the documents are not physically attached to the complaint, they may be considered if the documents' authenticity is not contested and the plaintiff's complaint necessarily relies on them. Second, under Fed. R. Evid. 201, a court may take judicial notice of matters of public record." Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001). The Ninth Circuit later gave a separate definition of "the 'incorporation by reference' doctrine, which permits us to take into account documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the plaintiff's pleading." Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005). Moreover, "judicial notice may be taken of a fact to show that a complaint does not state a cause of action." Sears, Roebuck & Co. v. Metropolitan Engravers, Ltd., 245 F.2d 67, 70 (9th Cir. 1956); see Estate of Blue v. County of Los Angeles, 120 F.3d 982, 984 (9th Cir. 1997).*fn3 "[A] court may not look beyond the complaint to a plaintiff's moving papers, such as a memorandum in opposition to a defendant's motion to dismiss. Facts raised for the first time in opposition papers should be considered by the court in determining whether to grant leave to amend or to dismiss the complaint with or without prejudice." Broam v. Bogan, 320 F.3d 1023, 1026 n.2 (9th Cir. 2003), citations omitted.

If a Rule 12(b)(6) motion to dismiss is granted, claims may be dismissed with or without prejudice, and with or without leave to amend."[A] district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (quoting Doe. v. United States, 58 F.3d 494, 497 (9th Cir. 1995)). In other words, ...


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