Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Diane Beall Fka Templin v. Quality Loan Service Corp; Onewest Bank


March 28, 2013


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


Presently before the court is Defendant OneWest Bank, FSB's Motion to Dismiss. Having considered the submissions of the parties, the court grants the motion and adopts the following order.*fn1

I. Background

In July 2003, Plaintiff executed a Promissory Note and obtained a home loan, secured by a Deed of Trust, for property located at 16377 Arnold Avenue, Lake Elsinore, California 92530. (Amended Complaint ¶ 7; Defendant's Request for Judicial Notice Ex. 1.) An Assignment of the Deed of Trust to OneWest was recorded on March 10, 2010. (RJN Ex. 2.) In May 2010, OneWest's agent recorded a Notice of Default. (RJN Ex. 3.) In July 2010, OneWest substituted Quality Loan Service Corporation as Trustee. (RJN Ex. 4.) Quality subsequently filed a Notice of Trustee's Sale. (RJN Ex. 5.) The sale has not yet occurred.

In September, 2010, Plaintiff filed an action in the United States District Court for the Southern District of California. See Beall v. Quality Loan Serv. Corp., No. 10-CV-1900 AJB, 2011 WL 2784594 (S.D. Cal. Jul. 15, 2011) (Beall I). Plaintiff alleged twenty causes of action related to the pending foreclosure, . Id. at *1. Ultimately, after extensive motion practice and having allowed Plaintiff to amend her claims twice, the Beall I court dismissed all of Plaintiff's causes of action with prejudice, including claims for violations of the Truth in Lending Act, the Real Estate Settlement Procedures Act, California Business and Professions Code Section 7200, California Civil Code Section 2923.5, and wrongful foreclosure, fraud, quiet title, and declaratory relief. (Beall I, Dkt. Nos. 14, 15, 50, 51.)

On April 4, 2012, Plaintiff filed another complaint, this time in Riverside County Superior Court. Plaintiff subsequently filed an amended complaint ("FAC"), which OneWest removed to this court.*fn2

OneWest now seeks to dismiss the FAC in its entirety.Aside from introductory comments regarding res judicata, however, Plaintiff's opposition only addresses three causes of action (Truth in Lending Act, Declaratory Relief, and Quiet Title).

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. Res Judicata The principle of res judicata "bars litigation in a subsequent action of any claims that were raised or could have been raised in the prior action." Owens v. Kaiser Foundation Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001) (internal quotation and citation omitted). The doctrine applies when there is "(1) an identity of claims, (2) a final judgment on the merits, and (3) identity or privity between parties." Id. (internal quotation omitted).

It appears to the court that the majority of Plaintiff's claims, with three exceptions described below, were either raised during prior proceedings in the Southern District or could have been raised then. The bulk of the claims in both the earlier case and this case are premised on Plaintiff's assertion that the Deed of Trust was never properly assigned to OneWest. The body of Plaintiff's Opposition does not address the res judicata issue. The Opposition's preambulatory language does include a numbered list of reasons why Plaintiff believes this case is different from her earlier case. (Opp. at 3-4.) Of these, however the majority are recitations of the FAC's allegations regarding the provenance of the Deed. Plaintiff's additional contention that her prior counsel suffered from a medical condition that compromised his ability to provide adequate representation was raised before, and addressed by, the court in the earlier case. See Beall I, 2011 WL at *1. Thus, it appears to the court that virtually all of the causes of action alleged in the FAC were already addressed and dismissed by the Southern District, with prejudice, or should have been, but were not, raised in the prior action.

B. Remaining Claims The FAC does allege certain causes of action that were not brought in the earlier litigation. The FAC lists a Fifth Cause of Action for "W[rongful] F[oreclosure] - Violation of P[enal] C[ode] [§] 115.5" and a Sixteenth Cause of Action for "Violation of 42 USC 1983." The court is unable to determine whether these causes of action could have been raised earlier because neither is supported by any factual allegations. There is no mention of a Penal Code violation anywhere beyond the caption of the complaint. California Penal Code Section 115.5 criminalizes false statements to notaries and the filing of false documents related to single family residences. The court presumes that Plaintiff is attempting to suggest that OneWest's allegedly fraudulent recordations constitute criminal behavior. Absent explicit language to the contrary, however, a criminal statute does not give rise to a civil cause of action. See Rodriguez v. U.S. Bank N.A., No. C 12-989 WHA, 2012 WL 3062690 at *4 (N.D. Cal. Jul. 26, 2012.)

The factual basis for Plaintiff's Section 1983 claim is similarly lacking. Plaintiff makes a single reference to Section 1983 within her Business and Professions Code claim. (FAC ¶ 241.) That reference appears to be a cut-and-pasted portion of a treatise or primer discussing an attorney's duty of reasonable inquiry, the relevance of which is unclear to the court. (Id.) Nowhere does the FAC allege that Plaintiff's Constitutional rights have been violated or that any such violation was committed by a person acting under color of state law, as is required to state a claim under 42 U.S.C. § 1983. See Mitchell v. Routh Crabtree Olsen, P.S., No. C 11-03577 JSW, 2012 WL 2792360 at * 2 (N.D. Cal. Jul. 9, 2012).

The Third Cause of Action also alleges Wrongful Foreclosure, this time on the basis that Plaintiff's Debt was discharged in bankruptcy. The body of the FAC does list some facts regarding this claim. Specifically, the FAC alleges that Plaintiff listed the debt as unsecured and listed Defendants as unsecured creditors, that the debt was therefore discharged in her Chapter 7 bankruptcy, and that Defendants did not file a proof of claim. (FAC ¶¶ 31-35.) The FAC does not, however, indicate when these events took place, again rendering it unclear whether this claim could have been brought earlier. Regardless, OneWest argues that Plaintiff listed Defendants as both unsecured and secured creditors. Furthermore, OneWest argues, the dischargeability of a debt is not affected by the way it is scheduled in a Chapter 7 no-assets, no-bar bankruptcy such as Plaintiff's, and the filing of a proof of claim, or lack thereof, is meaningless in such a case. In re Nielsen, 383 F.3d 922, 926-27 (9th Cir. 2004). Plaintiff's opposition does not address Defendant's argument, or the authority cited therein, and is therefore dismissed.*fn3

IV. Conclusion

For the reasons stated above, Defendant's Motion to Dismiss is GRANTED. Plaintiff's claims are dismissed with prejudice.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.