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Zacharias v. JP Morgan Chase Bank, N.A.

United States District Court, Ninth Circuit

August 29, 2013



SAMUEL CONTI, District Judge.


Plaintiff Reyna U. Zacharias ("Plaintiff") brings this action against JP Morgan Chase Bank, N.A. ("Chase") and Bank of America, N.A. ("BofA") (collectively, "Defendants") in connection with foreclosure proceedings commenced against her San Francisco home. Defendants now move to dismiss Plaintiff's first amended complaint ("1AC"). ECF No. 41 ("MTD"). The Motion is fully briefed and appropriate for resolution without oral argument per Civil Local Rule 7-1(b). ECF Nos. 45 ("Opp'n"), 48 ("Reply"). For the reasons set forth below, the motion to dismiss is GRANTED in part and DENIED in part.


In April 2007, Plaintiff obtained a loan from Washington Mutual Bank, F.A. ("WaMu"), secured by a deed of trust (the "DOT") encumbering her San Francisco home. ECF No. 31 ("1AC") ¶ 9; ECF No. 42 (Request for Judicial Notice ("RJN")) Ex. 1 ("DOT").[1] The DOT identifies WaMu as the beneficiary and indicates that WaMu lent Plaintiff $947, 500. The DOT also identifies California Reconveyance Company ("CRC") as the trustee.

The federal government later closed WaMu and appointed the Federal Deposit Insurance Corporation ("FDIC") as the bank's receiver. See RJN Ex. 2 ("Purchase Agreement"). On September 25, 2008, Chase acquired certain assets and liabilities of WaMu through an asset purchase agreement with the FDIC. Id . On September 21, 2009, an "Assignment of Deed of Trust" was recorded with the San Francisco Assessor-Recorder. 1AC ¶ 10; RJN Ex. 3 ("DOT Assignment"). The document states that Chase, as successor in interest to WaMu, assigned its interest in the DOT to BofA. DOT Assignment.

A notice of default was also recorded on September 21, 2009, indicating that Plaintiff was $13, 873.88 in arrears on her loan payments. RJN Ex. 4. Two notices of trustee's sale were later recorded, the first on December 23, 2009, and the second on November 5, 2012. RJN Exs. 5, 6. According to the second notice, a trustee's sale was scheduled for November 26, 2012, and the unpaid balance and other charges on Plaintiff's loan totaled $1, 082, 141.68. It is unclear whether the trustee's sale has yet occurred.

On November 19, 2012, Plaintiff filed the instant action in California Superior Court and the case was subsequently removed on diversity and federal question grounds. ECF No. 1 Ex. 1 ("Compl."). Plaintiff asserted three causes of action: (1) slander of title, (2) wrongful foreclosure, and (3) violation of the RICO statute. Compl. ¶¶ 15-57. Defendants subsequently filed a motion to dismiss, which the Court granted on February 13, 2013. ECF No. 29. Plaintiffs' RICO claim was dismissed with prejudice, but the Court granted Plaintiff leave to amend her claims for slander of title and wrongful foreclosure.

Plaintiff subsequently filed her 1AC, alleging causes of action for: (1) slander of title; (2) wrongful foreclosure; (3) violation of California Civil Code section 2923.5; (4) violation of the Truth in Lending Act ("TILA"), 15 U.S.C. § 1601; and (5) violation of the California Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code § 17200.[2]


A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) "tests the legal sufficiency of a claim." Navarro v. Block , 250 F.3d 729, 732 (9th Cir. 2001). "Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't , 901 F.2d 696, 699 (9th Cir. 1988). "When 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." Ashcroft v. Iqbal , 556 U.S. 662, 664 (2009). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 663. (citing Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007)). The allegations made in a complaint must be both "sufficiently detailed to give fair notice to the opposing party of the nature of the claim so that the party may effectively defend against it" and "sufficiently plausible" such that "it is not unfair to require the opposing party to be subjected to the expense of discovery." Starr v. Baca , 633 F.3d 1191, 1204 (9th Cir. 2011).


Defendants' motion asserts a number of arguments in favor of dismissing each of Plaintiff's claims. Though Plaintiff has filed an opposition brief, the Court can only assume that Plaintiff's counsel did not draft the brief with Defendants' motion in mind. Large segments of the opposition brief are identical to the opposition brief Plaintiff filed in response to Defendants' previous motion to dismiss. Moreover, Plaintiff ignores most of the arguments asserted by Defendants, while responding to other arguments that Defendants do not make. The brief also goes so far as to defend claims that were never asserted in Plaintiff's pleading and to characterize Defendants' Rule 12(b)(6) motion to dismiss as a state law demurrer. In short, there is little to indicate that Plaintiff's counsel even reviewed Defendants' moving papers before filing their opposition.

In light of Plaintiff's failure to file a coherent opposition, the Court is inclined to agree with most of the arguments raised in Defendants' motion. The Court assumes familiarity with the arguments ...

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