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.

George M. Lara v. Aurora Loan Services LLC

April 16, 2013

GEORGE M. LARA,
PLAINTIFF,
v.
AURORA LOAN SERVICES LLC, ET AL,
DEFENDANTS.



The opinion of the court was delivered by: Hon. Gonzalo P. Curiel United States District Judge

ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS; [Doc. Nos. 44, 45, 46] DENYING AS MOOT DEFENDANT RUZICKA & WALLACE, LLP'S MOTION TO STRIKE [Doc. No. 48]

On July 31, 2012, Plaintiff George Lara filed a first amended complaint ("FAC") against Defendants Aurora Loan Services LLC, Quality Loan Corp.,*fn1 McCarthy & Holthus LLP, Ruzicka & Wallace, LLP, and Mortgage Electronic Registration Systems, Inc. (respectively, "Aurora," "Quality," "McCarthy," "Ruzicka," and "MERS," and collectively "Defendants"). The FAC alleges several causes of action arising out of foreclosure-related events with respect to Plaintiff's real property located at 2180 Valentino Street, San Diego, California 92154. [FAC, Doc. No. 42 ¶ 1.] On August 9, 2012 and August 10, 2012, Defendants filed three motions to dismiss the FAC pursuant to Federal Rules of Civil Procedure 8, 9(b), 12(b)(6), and 19. Ruzicka also filed a motion to strike the FAC pursuant to California's Anti-SLAPP statute. For the reasons set forth below, the Court GRANTS Defendants' motions to dismiss and DENIES AS MOOT Ruzicka's motion to strike.

I.JUDICIAL NOTICE UNDER FED.R.EVID.201(B)

Aurora and MERS, jointly, and Ruzicka separately, filed requests for judicial notice concurrently with their motions to dismiss.*fn2 [Doc. Nos. 44-1 and 47.] Under Federal Rule of Evidence 201(b), judicial notice may be taken offacts that are "not subject to reasonable dispute" because they are "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b).

Here, Aurora and MERS request the Court take judicial notice of (1) Plaintiff's Deed of Trust, recorded in San Diego County Recorder's Office on April 21, 2004; (2) Corporate Assignment of Deed of Trust, recorded in San Diego County Recorder's office on January 31, 2011; (3) Substitution of Trustee for Plaintiff's Deed of Trust, recorded in San Diego County Recorder's Office on February 17, 2011; (4) Notice of Default and Election to Sell Under Deed of Trust, recorded in San Diego County Recorder's Office on February 25, 2011; (5) Notice of Trustee's Sale, recorded in San Diego County Recorder's Office on May 25, 2011; and (6) Trustee's Deed Upon Sale, recorded in San Diego County Recorder's Office on June 24, 2011. [Aurora and MERS Request for Judicial Notice ("RJN") at 2.]

Applying Federal Rule of Evidence 201(b), federal courts routinely take judicial notice of facts contained in publically recorded documents, including Deeds of Trust, Substitutions of Trustee, and Notices of Default because they are matters of public record, and are not reasonably in dispute. See, e.g., Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (quoting MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986)); Lingad v. IndyMac Fed. Bank, 682 F. Supp. 2d 1142, 1146 (E.D. Cal. 2010). Accordingly, the Court finds these publicly recorded documents are not reasonably in dispute, and therefore GRANTS Aurora's and MERS's request for judicial notice.

Ruzicka requests the Court take judicial notice of a state court action from the San Diego County Superior Court. [Ruzicka's RJN at 1.] Ruzicka attached several court records to the request for judicial notice, including the complaint, answer, order granting summary judgment, judgment, and writ of execution. [Id. at 1-2.] On a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss, when a court takes judicial notice of another court's opinion, it may do so "not for the truth of the facts recited therein, but for the existence of the opinion, which is not subject to reasonable dispute over its authenticity." Lee, 250 F.3d at 690(citing S. Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Grp. Ltd., 181 F.3d 410, 426--27 (3rd Cir. 1999)). Accordingly, the Court does not find the existence of the records are reasonably in dispute, and therefore GRANTS Ruzicka's request for judicial notice on that limited basis.

II.BACKGROUND

The Court take the following facts from Plaintiff's FAC.*fn3 According to the FAC, this action arises out of foreclosure-related events with respect to Plaintiff's real property, located at 2180 Valentino Street, San Diego, California 92154 (the "Property"). [FAC ¶ 1.]*fn4 On April 14, 2004, Plaintiff and Griselda Lara borrowed $333,000.00 from Aegis Wholesale Corporation. [Aurora and MERS RJN, Exh. 1.] The Deed of Trust was recorded against the Property and listed "George M. Lara and Griselda P. Lara" as the borrower, "Aegis Wholesale Corporation" as the Lender, and MERS as the nominee for the Lender. [FAC ¶ 11.] Plaintiff contends that "the original loan transaction and application were falsified by the 'lender' . . . as to fair market value of the [P]roperty, the borrower's ability to repay and the prospective terms and fees associated with the loan." [FAC ¶ 27.]

Plaintiff alleges that without express instruction from the Lender, "MERS colluded with Aurora" to facilitate a Corporate Assignment Deed of Trust, thereby transferring all the rights to Aurora. [Id.] Public records indicate that on January 31, 2011, a Corporate Assignment Deed of Trust assigned to Aurora all beneficial interest under Plaintiff's original Deed of Trust. [Aurora and MERS RJN, Exh. 2.] Plaintiff alleges that MERS "did not follow the securitization rules and fraudulently stepped into the shoes of the Securitized Owner." [FAC ¶ 11.] Plaintiff further alleges that employees of Aurora forged documents by falsely signing in place of MERS and utilizing a "robo-signer." [Id.]

On February 17, 2011, "Aurora . . appointed Quality Loan Service Corp. as [the] trustee to enforce the foreclosure." [FAC ¶ 11; Aurora and MERS RJN, Exh. 3.] Plaintiff alleges that Quality and Aurora completed "a fictitious sale" and transferred the Property to Aurora. [FAC ¶ 11.] On February, 22, 2011, Quality caused a Notice of Default to be recorded against the Property. [Aurora and MERS RJN, Exh. 4.]

On May 25, 2011, a Notice of Trustee's Sale was recorded against the Property. [Aurora and MERS RJN, Exh. 5.] On June 17, 2011, the non-judicial foreclosure proceedings concluded with a Deed of Trust Upon Sale for the Property. [Id. at Exh. 6.] Plaintiff alleges that Michelle Nguyen,*fn5 the notary public who notarized the Deed of Trust Upon Sale, was "permanently restrained and enjoined . . . in connection with the purchase or sale of any security." [FAC ¶ 11.] As a result, Plaintiff contends the Deed of Trust Upon Sale is invalid. [Id.]

III.LEGAL STANDARD

A. Rule 12(b)(6) Motion to Dismiss

A Rule 12(b)(6) motion challenges a complaint's compliance with the pleading requirements provided by the Federal Rules of Civil Procedure. Under Rule 8(a)(2), a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." The complaint must give defendant "fair notice of what the claim is and the grounds upon which it rests." Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation and modification omitted); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001) (a Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of [his] entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555 (internal quotation marks, brackets and citations omitted).

In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume the truth of all factual allegations and must construe them in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). However, legal conclusions need not be taken as true merely because they are cast in the form of factual allegations. Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987); W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981), cert, denied, 454 U.S. 1031, 102 (1981). Similarly, "conclusory allegations of law and unwarranted inferences are not sufficient to defeat a motion to dismiss." Pareto v. Fed. Deposit Ins. Corp., 139 F.3d 696, 699 (9th Cir. 1998).

In determining the propriety of a Rule 12(b)(6) dismissal, a court may not look beyond the complaint for additional facts, e.g., facts presented in plaintiff's memorandum in opposition to a defendant's motion to dismiss or other submissions. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003); Parrino v. FHP, Inc., 146 F.3d 699, 705-06 (9th Cir. 1998); see also 2 Moore's Federal Practice, ยง 12.34[2] (Matthew Bender 3d ed.) ("The court may not . . . take into account additional facts asserted in a memorandum opposing the motion to dismiss, because such memoranda do not constitute pleadings under Rule 7(a)"). However, a court may consider ...


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.