Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

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

Jose A. Alexander Jr., An Individual, and v. Bank of America N.A

April 15, 2013

JOSE A. ALEXANDER JR., AN INDIVIDUAL, AND VELDA P. ALEXANDER, AN INDIVIDUAL,
PLAINTIFFS,
v.
BANK OF AMERICA N.A.;
COUNTRYWIDE HOME LOANS, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Barry Ted Moskowitz, Chief Judge United States District Court

ORDER GRANTING MOTION TO DISMISS THIRD AMENDED COMPLAINT

Defendants Countrywide Bank FSB (now known as Bank of America, N.A.) ("Countrywide" or "BANA") and The Bank of New York Mellon f/k/a The Bank of New York, as Trustee for the Certificate Holders, CWALT, Inc. Alternative Loan Trust 2006-17T1, Mortgage Pass-Through Certificates, Series 2006-17T1 ("BNYM") (collectively "Defendants"), have filed a motion to dismiss Plaintiffs' Third Amended Complaint ("TAC"). For the reasons discussed below, Defendants' motion is GRANTED.

I. FACTUAL BACKGROUND

In March 2006, Plaintiffs Jose and Velda Alexander obtained two loans in order to refinance their property at 2352 White Wing Drive, Jamul, CA 91935 ("Property"). (TAC ¶¶ 12, 21, 22.)

The first loan was in the amount of $646,000. The Deed of Trust identifies the lender as Countrywide Home Loans, Inc., the trustee as ReconTrust Company, N.A., and the beneficiary as MERS "acting solely as nominee for Lender and Lender's successors and assigns." (Def. RJN Ex. 1.) In September 2011, MERS assigned its beneficial interest under the Deed of Trust to BNYM. (Def. RJN Ex. 2.)

The second loan was in the amount of $500,000. The Deed of Trust on the second loan identifies the lender as Countrywide Bank, N.A., the trustee as ReconTrust Company N.A., and the beneficiary as MERS "acting solely as nominee for Countrywide Bank, N.A." (Def. RJN Ex. 3.)

On October 3, 2011, ReconTrust recorded a notice of default under the Deed of Trust on the first loan. (Def. RJN Ex. 4.) On January 6, 2012, ReconTrust recorded a Notice of Trustee's Sale. (Def. RJN Ex. 5.)

Plaintiffs commenced this action on January 12, 2012, in the Superior Court of the County of San Diego. On February 16, 2012, Defendants removed the action to federal court.

On March 21, 2012, Plaintiffs filed a First Amended Complaint ("FAC"). In an order filed on August 13, 2012, the Court granted Defendants' motion to dismiss the FAC for failure to state a claim and also granted Defendants' motion to expunge lis pendens. The Court gave Plaintiffs "one more opportunity to amend their complaint."

On August 29, 2012, Plaintiffs filed their Second Amended Complaint ("SAC"). In an order filed on December 17, 2012, the Court granted Defendants' motion to dismiss the SAC for failure to state a claim. The Court granted Plaintiffs "one final chance to file an amended complaint."

On December 28, 2012, Plaintiffs filed their Third Amended Complaint. The Third Amended Complaint adds defendants MERS and Countrywide Home Loans, Inc., and asserts claims for (1) intentional misrepresentation; (2) declaratory relief; (3) violations of Cal. Bus. & Prof. Code § 17200; (4) fraud; and (5) accounting.

II. STANDARD

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) should be granted only where a plaintiff's complaint lacks a "cognizable legal theory" or sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988). When reviewing a motion to dismiss, the allegations of material fact in plaintiff's complaint are taken as true and construed in the light most favorable to the plaintiff. See Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). Although detailed factual allegations are not required, factual allegations "must be enough to raise a right to relief above the speculative level." Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007). "A plaintiff's obligation to prove 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." Id. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

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