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Gissler v. Citimortgage, Inc.

United States District Court, Ninth Circuit

June 19, 2013

JOHN A. GISSLER, Plaintiff,
v.
CITIMORTGAGE, INC., et al., Defendants.

ORDER 1. GRANTING DEFENDANTS' MOTION TO DISMISS; 2. DENYING DEFENDANTS' MOTION TO STRIKE [Doc. No. 6.]

IRMA E. GONZALEZ, District Judge.

Before the Court are Defendants' motions to dismiss and strike pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(f), respectively. [Doc. No. 6.] For the reasons below, Defendants' motion to dismiss is GRANTED and motion to strike is DENIED.

BACKGROUND

This is a mortgage case. Plaintiff John Gissler asserts claims of wrongful foreclosure, to quiet title, for slander of title, for declaratory relief, and under the Truth in Lending Act and Fair Debt Collections Practices Act, all premised on a purportedly wrongful foreclosure. [Doc. No. 1.] Defendant moves to dismiss all claims and to strike the demand for punitive damages.

DISCUSSION

Even affording every benefit of the doubt, Plaintiff's complaint fails to allege sufficient facts to support any cognizable legal theory. Thus, to the extent and for the additional reasons specified below, Defendants' motion to dismiss is GRANTED. Defendants' motion to strike is procedurally improper and thus DENIED.

I. Motion to Dismiss

Under Federal Rule of Civil Procedure 8(a)(2), "a complaint must contain 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, 677-78 (2009). Motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) test the sufficiency of this required showing. New Mexico State Investment Council v. Ernst & Young LLP, 641 F.3d 1089, 1094 (9th Cir. 2011). "Dismissal is proper when the complaint does not make out a cognizable legal theory or does not allege sufficient facts to support a cognizable legal theory." Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011).

1. Wrongful Foreclosure

Plaintiff's claims premised on California Civil Code sections 2923, [ see Doc. No. 1 at 19], constitute wrongful foreclosure claims. See Small v. Mortgage Electronic Registration Systems, Inc., 2010 WL 3719314, at *14 (E.D. Cal. Sept. 16, 2010). Wrongful foreclosure claims require allegations of credible tender. See Alicia v. G.E. Money Bank, 2009 WL 2136969, at *3 (N.D. Cal. July 16, 2009) ("When a debtor is in default of a home mortgage loan, and a foreclosure is either pending or has taken place, the debtor must allege a credible tender of the amount of the secured debt to maintain any cause of action for wrongful foreclosure."). Plaintiff fails to make any such allegation. [ See Doc. No. 1.] But amendment could potentially cure this deficiency, and thus Plaintiff's wrongful foreclosure claims are DISMISSED WITHOUT PREJUDICE.

2. Quiet Title Claim

So too, a "quiet title action is doomed in the absence of Plaintiffs' tender of the full amount owed." Gjurovich v. Cal., 2010 WL 4321604, at *8 (E.D. Cal. Oct. 26, 2010). Because Plaintiff fails to allege tender, see supra, his quiet title claim is DISMISSED WITHOUT PREJUDICE.

3. Slander of Title Claim

Slander of title claims require "(1) a publication, (2) which is without privilege or justification, (3) which is false, and (4) which causes direct and immediate pecuniary loss." Manhattan Loft, LLC v. Mercury Liquors, Inc., 173 Cal.App.4th 1040, 1050 (2009). Plaintiff does not allege that the notice of default at issue was false, much less how such falsity caused direct and immediate pecuniary loss. [ See Doc. No. 1.] These deficiencies are fatal, s ee Velasco v. Security Nat. Mortg. Co., 823 F.Supp.2d 1061, ...


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