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Robert Van Ryzin, et al. v. Citimortgage

March 22, 2013

ROBERT VAN RYZIN, ET AL.
v.
CITIMORTGAGE, INC.



The opinion of the court was delivered by: Honorable Philip S. Gutierrez, United States District Judge

CIVIL MINUTES - GENERAL

O

Present: The Honorable Philip S. Gutierrez, United States District Judge

Wendy K. Hernandez Not Present n/a Deputy Clerk Court Reporter Tape No. Attorneys Present for Plaintiff(s): Attorneys Present for Defendant(s): Not Present Not Present Proceedings: (In Chambers) Order Granting Defendant's Motion to Dismiss

Pending before the Court is Defendant CitiMortgage, Inc.'s ("Defendant" or "CitiMortgage") motion to dismiss Plaintiffs Robert Van Ryzin and Lisa Van Ryzin's ("Plaintiffs") Complaint. See Dkt. # 7. The Court finds the matter appropriate for decision without oral argument. See Fed. R. Civ. P. 78(b); L.R. 7-15. Having read and considered the moving and opposing papers, the Court GRANTS the motion to dismiss.

Background

This action arises out of the foreclosure of Plaintiffs' home. Plaintiffs borrowed $304,053.22 from Citicorp Trust Bank, FSB on November 12, 2005, for the purchase of a residential property (the "Property") in Murietta, California, and the Deed of Trust was recorded on November 30, 2005. See Defendant CitiMortgage's Request for Judicial Notice ("RJN"), Ex.

A. Citicorp Trust Bank, FSB was named as the lender and Verdugo Trustee Service Corporation was named as the trustee. Id. On April 24, 2012, Citibank, N.A., as successor in interest by merger to Citicorp Trust Bank, FSB, executed an Assignment of Deed of Trust, assigning the beneficial interest to U.S. Bank National Association ("U.S. Bank, N.A."). RJN, Ex. B. The Assignment of Deed of Trust was recorded on May 1, 2012. On May 7, 2012, Plaintiffs received a letter from BSI Financial Services, Inc. ("BSI") notifying them that U.S. Bank, N.A. had replaced Citibank, N.A. as the creditor on their loan. NOR, Ex, A, Ex. 1. The letter also indicated that BSI had replaced Defendant as the loan servicer. Id. On June 26, 2012, Fidelity National Title Company ("Fidelity"), on behalf of U.S. Bank, N.A., recorded a Notice of Default, which included a Notice of Default declaration that the requirements of California Civil Code § 2923.5 had been met. RJN, Ex. C. On September 27, 2012, U.S. Bank, N.A. recorded a Substitution of Trustee, substituting Fidelity as Trustee. See Defendant CitiMortgage's Supplemental Request for Judicial Notice ("Supp. RJN"), Ex. A. That same day, Fidelity recorded a Notice of Trustee's Sale, with a sale date scheduled for October 17, 2012. RJN, Ex. D. Fidelity then conveyed the Property to Wilmington Trust, N.A., as successor trustee to Citibank, N.A., as trustee for Lehman XS Trust, Mortgage Pass-Through Certificates, Series 2006-17. RJN, Ex. E.

This action was filed on December 13, 2012, in state court. See NOR, Ex. A. It was removed on January 14, 2013. See NOR. Plaintiffs allege claims for breach of contract, injunctive relief, cancellation of instruments, and violation of California Civil Code § 2923.5. See NOR, Ex. Aat ¶¶ 18-37. Plaintiffs' claims are based on allegations that Defendant improperly recorded a Notice of Default and Notice of Trustee's Sale on the Property when it did not have the authority to do so. Id. at ¶¶ 6, 9-10. Plaintiffs also claim that Defendant sold the Property at a trustee's sale on December 7, 2012, even though it did not have authority to do

Id. ¶ 12. Defendant filed the pending motion to dismiss, arguing that Plaintiffs cannot state a claim for relief because all of Plaintiffs' claims are based on the mistaken belief that Defendant recorded the foreclosure notices and sold the Property when in fact, the foreclosure notices were recorded after Defendant had already disassociated itself from the Property. Mot. 1:18-25.

Legal Standard

A. Motion to Dismiss

Pursuant to Rule 12(b)(6), a defendant may move to dismiss a cause of action if the plaintiff fails to state a claim upon which relief can be granted. In evaluating the sufficiency of a complaint under Rule 12(b)(6), courts must be mindful that the Federal Rules of Civil Procedure require that the complaint merely contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Although detailed factual allegations are not required to survive a Rule 12(b)(6) motion to dismiss, a complaint that "offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" Ashcroft v. ...


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