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.

Pagtalunan v. E*Trade Bank

United States District Court, Ninth Circuit

July 29, 2013

RENATO PAGTALUNAN, et al., Plaintiffs,
v.
E*TRADE BANK FORMERLY KNOWN AS TELEBANK, Defendant.

ORDER GRANTING MOTION TO DISMISS

PHYLLIS J. HAMILTON, District Judge.

Before the court is the motion of defendant E*Trade Bank ("E*Trade") for an order dismissing the above-entitled action pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Plaintiffs Renato Pagtalunan and Janette Cabautan, who are represented by counsel, filed no opposition to the motion.[1] Having read defendant's papers and carefully considered the arguments and the relevant legal authority, the court hereby GRANTS the motion.

BACKGROUND

In November 2006, plaintiffs borrowed $885, 000 secured by a promissory note and Deed of Trust in connection with a purchase or refinance of residential property located in the County of San Mateo, California ("the property"). The Deed of Trust named plaintiffs as the "borrowers, " and identified Financial Trustee Company as the "trustee, " Reunion Mortgage, Inc. as the "lender, " and Mortgage Electronic Registration System ("MERS") as the "nominee" and the "beneficiary."

From December 2006 until January 2008, plaintiffs made timely loan payments, but subsequently failed to do so. On May 13, 2008, a Notice of Default was recorded in the San Mateo County Recorder's Office by Ndex West LLC. On June 16, 2008, an Assignment of Deed of Trust was recorded, pursuant to which MERS assigned all beneficial interest in the Deed of Trust to defendant E*Trade. A Notice of Trustee's Sale was recorded on August 12, 2008.

On August 18, 2008, October 21, 2008, and December 4, 2008, Renato Pagtalunan filed three separate Chapter 13 petitions in the Bankruptcy Court for the Northern District of California. All three were dismissed by the court for failure to comply with court rules or orders.

On December 4, 2008, plaintiffs filed suit in the Superior Court of California, County of San Mateo, against Reunion Mortgage, Inc., E*Trade, and MERS, asserting causes of action for declaratory relief; breach of the implied covenant of good faith and fair dealing; violations of the Truth in Lending Act ("TILA"), 15 U.S.C. § 1601, et seq.; violations of the Real Estate Settlement Procedures Act ("RESPA"), 24 C.F.R. § 35009.6(a); violation of California Civil Code §§ 1920 and 1921; violation of California Civil Code § 1916.7; rescission/cancellation; unfair and fraudulent business practices, in violation of California Business & Professions Code § 17200; breach of fiduciary duty; quiet title; and injunctive relief.

On January 13, 2009, MERS removed the case to this court, as case No. C-09-0162. Defendants moved to dismiss the complaint for failure to state a claim, and to strike certain allegations in the complaint. The court granted the motion, with leave to amend all but one claim. Plaintiffs filed a first amended complaint on May 7, 2009, and defendants again moved to dismiss for failure to state a claim and to strike allegations. On September 29, 2009, the court granted the motion, dismissing plaintiffs' claims with prejudice, and also entered judgment.

On April 23, 2010, August 25, 2010, October 6, 2011, and December 16, 2011, Renato Pagtalunan filed four additional Chapter 13 petitions with the Bankruptcy Court. All four were dismissed, the most recent dismissal on April 12, 2012.

On December 6, 2012, a Notice of Trustee's Sale was recorded. The Trustee's Sale took place on January 7, 2013.

Plaintiffs filed the complaint in the present action on March 25, 2013. Plaintiffs allege that E*Trade wrongfully commenced foreclosure proceeding, and that major defects in the foreclosure instruments rendered them unlawful. Specifically, plaintiffs assert that the Assignment of Deed of Trust, which assigned all interest in the Deed of Trust from the original beneficiary to E*Trade was/is invalid, because MERS had no interest in the Note or the security instrument, and was thus incapable of assigning the Note or Deed of Trust.

Plaintiffs assert seven causes of action - (1) unfair, unlawful, and fraudulent business practices, in violation of California Business & Professions Code § 17200; (2) cancellation of instruments, pursuant to California Civil Code § 3412; (3) violation of the Truth in Lending Act ("TILA"), 15 U.S.C. § 1641(g); (4) violation of the Federal Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692e; (5) declaratory relief; (6) wrongful foreclosure; and (7) quiet title.

E*Trade now seeks an order dismissing all seven causes of action for ...


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.