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Annette Britton Cordero v. Bank of America N.A.

February 14, 2013

ANNETTE BRITTON CORDERO, PLAINTIFF,
v.
BANK OF AMERICA N.A., AS SUCCESSOR BY MERGER TO BAC HOME LOANS SERVICING, LP, F/K/A COUNTRYWIDE HOME LOANS SERVICING, LP, DEFENDANTS.



The opinion of the court was delivered by: Dean D. Pregerson United States District Judge

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

[Dkt. No. 9]

Presently before the court is Defendant Bank of America's Motion to Dismiss. Having considered the submissions of the parties, the court grants the motion and adopts the following order.

I. Background

On March 15, 2006, Angela Britton Del Rio (Ms. Del Rio) and her late husband executed a $650,000 promissory note in favor of Instant Capital Funding Group, Inc. for the purchase of property at 17031 Paulette Place, Granada Hills, California. (First Amended Complaint ¶1.)

The loan was secured by a Deed of Trust listing Mortgage Electronic Registration Systems, Inc. ("MERS") as beneficiary. (Id., Ex. F.) Plaintiff, as Attorney in Fact for Ms. Del Rio, alleges that the loan was later transferred and securitized.*fn1 (FAC ¶¶ 17, 21.) On September 22, 2010, MERS executed an Assignment ("the Assignment") of all beneficial interest in the Deed to Defendant's predecessor in interest. (FAC ¶ 40.)

The Assignment was recorded by MERS Assistant Secretary Flor Valerio on October 6. (Id.)

On September 24, 2010, Defendant's agent recorded a Notice of default against Plaintiff's property. (FAC ¶ 41.) Defendant's agent recorded a Notice of Trustee's Sale on July 29, 2011. Plaintiff's First Amended Complaint alleges that the September 22 Assignment of her note and Deed to Defendant was void, and that the Notice of Default and Notice of Trustee's Sale are therefore deficient. (FAC ¶ 30.)

The FAC alleges ten causes of action for declaratory relief, quasi contract, violations of the Fair Debt Collection Practices Act ("FDCPA"), Truth in Lending Act ("TILA"), and Real Estate Settlement Procedures Act ("RESPA"), an accounting, breach of contract, breach of the implied covenant of good faith and fair dealing, unfair business practices, and violation of California Civil Code Sections 2923.5 and 2924. Defendant now moves to dismiss the FAC in its entirety.

II. Legal Standard

A complaint will survive a motion to dismiss when it contains "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). When considering a Rule 12(b)(6) motion, a court must "accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff." Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). Although a complaint need not include "detailed factual allegations," it must offer "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678. Conclusory allegations or allegations that are no more than a statement of a legal conclusion "are not entitled to the assumption of truth." Id. at 679. In other words, a pleading that merely offers "labels and conclusions," a "formulaic recitation of the elements," or "naked assertions" will not be sufficient to state a claim upon which relief can be granted. Id. at 678 (citations and internal quotation marks omitted).

"When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement of relief." Id. at 679. Plaintiffs must allege "plausible grounds to infer" that their claims rise "above the speculative level." Twombly, 550 U.S. at 555. "Determining whether a complaint states a plausible claim for relief" is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679.

III. Discussion

A. Quasi-Contract Plaintiff's cause of action for quasi-contract is premised upon the allegation that Defendant was not entitled to receive Plaintiff's loan payments because the Assignment was invalid. (FAC ΒΆΒΆ 66-69.) Defendant argues that even if Plaintiff is correct that Bank of America lacks a beneficial interest in her Deed, Defendant was entitled to collect payments as the servicer of Plaintiff's loan. (Mot. at 7; Reply at 12-13.) Plaintiff's opposition focuses solely on Defendant's lack of beneficial interest, without addressing the loan servicer argument. Furthermore, the FAC itself alleges that Defendant is Plaintiff's loan ...


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