United States District Court, S.D. California
LEE I. JUREWITZ, Plaintiff,
BANK OF AMERICA, N.A., a Corporation; and DOES 1 through 10, inclusive, Defendants
For Lee I. Jurewitz, an individual, Plaintiff: Octavio Cardona-Loya, II, LEAD ATTORNEY, Golden & Cardona-Loya, LLP, Chula Vista, CA.
For Bank of America, N.A., a Corporation, Defendant: J. Owen Campbell, LEAD ATTORNEY, Andrew Alexander Wood, Severson & Werson, Irvine, CA.
WILLIAM Q. HAYES, United States District Judge.
The matter before the Court is the Motion to Dismiss Plaintiff's Complaint, filed by Defendant Bank of America, N.A. (" Bank of America" ). (ECF No. 3).
On November 8, 2012, Plaintiff filed a Complaint in San Diego County Superior Court. (ECF No. 1-1). The Complaint states: " This action arises out of Defendant Bank of America's unlawful foreclosure proceedings against Plaintiff's property in violation of the Consent Judgment signed by Bank of America with Federal and State governments." Id. ¶ 1. The Complaint alleges that Defendant services Plaintiff's loan, and Plaintiff has applied for a loan modification. Id. ¶ ¶ 5, 7. The Complaint alleges that Defendant " is 'dual tracking,' meaning Bank of America continues foreclosure efforts at the same time [Plaintiff] is in review for a foreclosure-preventing option or appealing a denial of a modification request." Id. ¶ 12. The Complaint alleges that, in April of 2012, Defendant entered into a Consent Judgment with the United States and 49 state attorneys general, which prohibits Defendant from dual tracking. Id. ¶ ¶ 14, 16. The Complaint alleges causes of action for " breach of written contract: Consent Judgment," negligence by breaching a duty to exercise care in complying with the Consent Judgment, and unlawful and unfair acts in violation of California Business & Professions Code § 17200. Id. at 13.
On December 10, 2012, Defendant removed the action to this Court alleging federal question and diversity jurisdiction. (ECF No. 1). On December 17, 2012, Defendant filed the Motion to Dismiss. (ECF No. 3). On January 11, 2013, Plaintiff filed an opposition to the Motion to Dismiss. (ECF No. 4). On January 18, 2012, Defendant filed a reply. (ECF No. 5).
II. Standard of Review
Federal Rule of Civil Procedure 12(b)(6) permits dismissal for " failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). " A pleading that states a claim for relief must contain ... a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Dismissal under Rule 12(b)(6) is appropriate where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory. See Balistreri v. Pac. Police Depot, 901 F.2d 696, 699 (9th Cir. 1990).
" [A] plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell A. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Fed.R.Civ.P. 8(a)(2)). When considering a motion to dismiss, a court must accept as true all " well-pleaded factual allegations." Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). However, a court is not " required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). " In sum, for a complaint to survive a motion to dismiss, the non-conclusory factual content, and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quotations omitted).
of the Parties