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Bank of New York Mellon, As Indenture Trustee For Encore Credit Receivables Trust 2005-1 v. Peggy Gomez; David Alan Boucher; North American Title; Expedia Lending

March 11, 2013

BANK OF NEW YORK MELLON, AS INDENTURE TRUSTEE FOR ENCORE CREDIT RECEIVABLES TRUST 2005-1, PLAINTIFF,
v.
PEGGY GOMEZ; DAVID ALAN BOUCHER; NORTH AMERICAN TITLE; EXPEDIA LENDING GROUP; ALL PARTIES WITH ANY RIGHT, TITLE, OR INTEREST IN THE REAL PROPERTY AT 16225 DOUBLEGROVE STREET, LA PUENTE, CALIFORNIA; AND DOES 1 THROUGH 25, DEFENDANTS.



The opinion of the court was delivered by: Otis D. Wright, II United States District Judge

O

ORDER DENYING DEFENDANTS' MOTIONS TO DISMISS [9], [16]

I.INTRODUCTION

Defendants Boucher and Expedia Lending Group filed almost identical motions to dismiss Plaintiff Bank of New York Mellon's Complaint. (ECF Nos. 9, 16.) The Court finds that Defendants have not shown that Plaintiff failed to properly state a claim in its Complaint. The Court therefore DENIES the motions to dismiss.*fn1

II.FACTUAL BACKGROUND

On December 29, 2004, Joseph Cisneros and Defendant Peggy Gomez took out a $350,200 loan on the property located at 16225 Doublegrove Street, La Puente, California 91744. (Compl. ¶¶ 8, 11.) The loan was secured by a Deed of Trust, which was recorded in the Los Angeles County Recorder's Office. (Id. ¶ 11.)

Gomez and Cisneros fell behind on their payments. (Id. ¶ 12.) On August 8, 2011, a Notice of Default was recorded against the property. (Id.) On May 30, 2012, the property was sold at a non-judicial foreclosure sale. (Id. ¶ 14.) Plaintiff successfully bid on the property and received a Trustee's Deed Upon Sale. (Id.)

Boucher claimed to be Plaintiff's authorized agent and on August 22, 2012, executed an allegedly fraudulent Grant Deed, transferring all interest in the property from Plaintiff to Gomez. (Id. ¶ 19.) Along with the Grant Deed, Boucher executed a Notice for the Partial Cancellation of Debt by Set-Off, which states that Plaintiff transferred the property to Gomez in partial satisfaction of a $4.9 million debt owed to Gomez and Cisneros by Plaintiff. (Id. Ex. F.) Plaintiff vehemently denies having transferred any interest in the property back to Gomez. (Id. ¶ 21.)

On August 24, 2012, Gomez executed a Short Form Deed of Trust and Assignment of Rents in favor of Expedia, with Defendant North American Title as trustee. (Id. ¶ 27; Ex. G.)

On December 11, 2012, Plaintiff instituted this action, alleging causes of action for: (1) cancellation of the various instruments; (2) quiet title; (3) slander of title; and (4) declaratory relief. Boucher and Expedia now move to dismiss the Complaint.

III.LEGAL STANDARD

Dismissal under Rule 12(b)(6) can be based on "the lack of a cognizable legal theory" or "the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A complaint need only satisfy the minimal notice pleading requirements of Rule 8(a)(2)-a short and plain statement-to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6). Porter v. Jones, 319 F.3d 483, 494 (9th Cir. 2003); Fed. R. Civ. P. 8(a)(2).

For a complaint to sufficiently state a claim, its "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). While specific facts are not necessary so long as the complaint gives the defendant fair notice of the claim and the grounds upon which the claim rests, a complaint must nevertheless "contain 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).

Iqbal's plausibility standard "asks for more than a sheer possibility that a defendant has acted unlawfully," but does not go so far as to impose a "probability requirement." Id. Rule 8 demands more than a complaint that is merely consistent with a defendant's liability-labels and conclusions, or formulaic recitals of the elements of a cause of action do not suffice. Id. Instead, the complaint must allege sufficient underlying facts to provide fair notice and enable the defendant to defend itself effectively. Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). The determination whether a complaint satisfies the ...


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