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Hidalgo v. Aurora Loan Services LLC

United States District Court, Ninth Circuit

August 29, 2013

ARCELI HIDALGO, Plaintiff,
v.
AURORA LOAN SERVICES LLC; TFLG, a law corporation; ERIC G. FERNANDEZ; S. EDWARD SLABACH; SEAN H. VEDROSIAN; VIANA G. BARBU; and DOES 1 through 50, inclusive. Defendants.

ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND COMPLAINT AND RE-SERVE

MARILYN L. HUFF, District Judge.

On July 2, 2013, Defendants TFLG, A Law Corporation, Eric G. Fernandez, S. Edward Slabach, Sean H Vedrosian, and Viana G. Barbu ("TFLG") filed a motion to dismiss Plaintiff Hidalgo's complaint for failure to state a claim. (Doc. No. 6.) On July 30, 2013, Defendant Aurora Loan Services LLC ("Aurora") made a special appearance to file a motion to dismiss Plaintiff's complaint for insufficient service of process. (Doc. No. 12.) On August 28, 2013, the Court submitted the motion on the papers. (Doc. No. 14). To date, Plaintiff has yet to file an opposition to Defendants' motions. For the reasons below, the Court GRANTS Defendants' motions to dismiss without prejudice.

Background

On November 1, 2005, Plaintiff obtained a home mortgage loan from First National Bank of Arizona ("Bank of Arizona") pledging as security property located at 15751 Lofty Trail Drive, San Diego, California. (Doc. No. 1 ("Compl.") ¶¶16, 19, 20.) The deed of trust listed the Bank of Arizona as the lender and MERS Inc. as beneficiary. (Id. ¶19.) In February 2011, Defendant Aurora Loan Services LLC ("Aurora") received Plaintiff's loan by assignment from the Bank of Arizona. (Id. ¶21.)

In December 2012, Aurora, through their counsel, Defendant TFLG, initiated an unlawful detainer action against Plaintiff in California Superior Court in San Diego County. (Id. ¶51.) The Superior Court issued judgment in favor of Aurora on May 30, 2013. (Doc. No. 3, Ex. A at p. 4.) Defendants obtained a writ of execution authorizing the Sheriff or Marshal of the County of San Diego to enforce the judgment. (Id.) The Sheriff served Plaintiff with a notice to vacate by June 13, 2013. (Id. Ex. A at p. 1.)[1]

On June 10, 2013, Plaintiff, proceeding pro se, filed a complaint in this Court for damages for violations of the Real Estate Settlement Practices Act ("RESPA"), 12 U.S.C. § 2605; for violations of the Truth in Lending Act ("TILA"), 15 U.S.C. § 1641; for violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692; and common law claims of lack of standing to foreclose; fraud in the inducement; fraud in the concealment; and for declaratory and injunctive relief.[2] (Compl.) On June 20, 2013, Plaintiff filed an ex parte application for a TRO to stay the eviction and to prevent Defendants from taking possession of the property. (Doc. No. 3.) The Court denied the Plaintiff's request for a TRO after concluding that the Plaintiff failed to show a "fair chance of success on the merits." (Doc. No. 5 at p. 5.) On July 2, 2013, Defendant TFLG filed a motion to dismiss Plaintiff's complaint for failure to state a claim for which relief may be granted. On July 30, 2013, Defendant Aurora filed a motion to dismiss Plaintiff's complaint for insufficient service of process.

Discussion

I. Defendant TFLG's Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6)

A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the pleadings and allows a court to dismiss a complaint upon a finding that the plaintiff has failed to state a claim upon which relief may be granted. See Navarro v. Block 250 F.3d 729 , 732 (9th Cir. 2001). Federal Rule of Civil Procedure 8(a)(2) requires that a pleading stating a claim for relief contain "a short and plain statement of the claim showing that the pleader is entitled to relief." The function of this pleading requirement is to "give the defendant fair notice of what the... claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly 550 U.S. 544 , 555 (2007).

The court may dismiss a complaint as a matter of law for: (1) "lack of cognizable legal theory, " or (2) "insufficient facts under a cognizable legal claim." SmileCare Dental Grp. v. Delta Dental Plan of Cal. 88 F.3d 780 , 783 (9th Cir. 1996) (citation omitted). However, a complaint survives a motion to dismiss if it contains "enough facts to state a claim to relief that is plausible on its face." Twombly 550 U.S. at 570. Nevertheless, the reviewing court need not accept "legal conclusions" as true. Ashcroft v. Iqbal 556 U.S. 662 , 678 (2009). "Factual allegations must be enough to raise a right to relief above the speculative level." Twombly 550 U.S. at 555. It is also improper for the court to assume "the [plaintiff] can prove facts that [he or she] has not alleged." Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters 459 U.S. 519 , 526 (1983). On the other hand, "[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Iqbal 556 U.S. at 679. In deciding a motion to dismiss, the court only reviews the contents of the complaint, accepting all factual allegations as true, and drawing all reasonable inferences in favor of the nonmoving party. al- Kidd v. Ashcroft 580 F.3d 949 , 956 (9th Cir. 2009) (citations omitted).

A. Plaintiff's Federal Claims

I. RESPA

Plaintiff alleges that Defendant TFLG violated the Real Estate Settlement and Procedures ACT ("RESPA"), 12 U.S.C. § 2605. (Compl. ¶¶57-58.) Under RESPA, the servicer of a loan has obligations to make a disclosure to the borrower relating to assignment, sale, or transfer of loan servicing. 12 U.S.C. § 2605(a)-(b). The servicer also has an obligation to respond to borrower inquiries. 12 U.S.C. § 2605(e). For each of these provisions, 12 U.S.C. § 2605(f) imposes liability on servicers that violate RESPA and fail to make the required disclosures. The section provides that "[w]hoever fails to comply with any provision of this section shall be liable to the borrower for each such failure...." 12 U.S.C. § 2605(f)(1).

RESPA defines the term "servicer" as "the person responsible for servicing of a loan (including the person who makes or holds a loan if such person also services the loan)." 12 U.S.C. § 2605(i)(2). RESPA defines the term "servicing" as "receiving any scheduled periodic payments from a borrower pursuant to the terms of any loan, including amounts for escrow accounts described in [12 U.S.C. § 2609], and making payments of principal and interest and such other payments with ...


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