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Lawrence v. Sadek

United States District Court, Ninth Circuit

October 21, 2013

MARILYN LAWRENCE
v.
DANIEL SADEK et al.

Marilyn Lawrence, Pro Se, Attorneys Present for Plaintiffs.

Charles Meyer, Attorneys Present for Defendant.

CIVIL MINUTES - GENERAL

CHRISTINA A. SNYDER, District Judge.

Proceedings: DEFENDANT ILLEANA PETERSON'S MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT (filed August 7, 2013)

I. INTRODUCTION

On March 6, 2011, pro se plaintiff Marilyn Lawrence filed this action against Daniel Sadek d/b/a/ Quick Loan Funding Inc. ("Quick Loan"), Mortgage Electronic Registration Systems, Inc. ("MERS"), OCWEN Loan Servicing, LLC ("Ocwen"), Executive Trustee Service, LLC d/b/a/ ETS Service, LLC ("ETS Services"), and Illeanna Peterson ("Peterson"), identified as "Lleanna Peterson" in the complaint, as agent for Executive Trustee Service, LLC d/b/a/ ETS Services. On July 24, 2012, plaintiff filed her First Amended Complaint ("FAC"). Plaintiff alleges the following claims for relief: (1) breach of fiduciary duty, (2) fraud, (3) fraudulent misrepresentation, and (4) usury. On February 6, 2013, the Court dismissed with prejudice defendants MERS and Ocwen.

On July 24, 2013, defendant Illeanna Peterson filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). On September 24, 2013, plaintiff filed an opposition, and on September 26, 2013, defendant Illeanna Peterson replied. On October 21, 2013, the Court held a hearing. After considering the parties' arguments, the Court finds and concludes as follows.

II. BACKGROUND

At some time prior to 2006, plaintiff Marilyn Lawrence purchased residential property at 5851 7th Avenue, Los Angeles, CA 90043 ("the property"). On May 3, 2006, plaintiff executed a cash out refinance loan in the amount of $229, 000.00 from non-party Quick Loan ("the loan agreement"), and executed a deed of trust for the property securing the loan. RJN, Ex A. Ocwen acted as the servicer of the loan. FAC, Ex. J. On July 12, 2010, MERS executed an assignment of deed of trust as an agent for Quick Loan, assigning the beneficial interest to U.S. Bank. RJN, Ex. B.

On September 19, 2011, U.S. Bank executed a substitution of Trustee naming ETS Services as the trustee under the deed of trust. RJN, Ex. C. On October 10, 2011, after plaintiff defaulted on her loan obligations, a notice of default was recorded. RJN, Ex. D. At that time, plaintiff was in arrears $50, 017.57. Id . When plaintiff did not cure the default, a notice of trustee's sale was recorded on January 17, 2012. RJN, Ex. E. Defendant Illeanna Peterson, the defendant at issue in this motion, appears to have been the Trustee Sale Officer responsible for noticing the trustee's sale of the property. Id . The property was sold on February 24, 2012 at a Trustee's Sale. RJN, Ex. F.

Essentially, plaintiff alleges that defendants generally failed to advise her that she would be financially incapable to of making payments on her loan. Additionally, plaintiff alleges that her loan application contains false statements about her financial status. Specifically, plaintiff's Uniform Residential Loan Application indicated that plaintiff had an income of $6, 200.00 per month and real property with a fair market value of $440, 000.00 or $455, 000.00. FAC, Ex. A. However, plaintiff alleges that she only had an income of $1, 500.00 per month, and her home was only worth $100, 000.00 to $120, 000.00. FAC at 3, Ex. J.

III. LEGAL STANDARD

A. Motion to Dismiss

A Rule 12(b)(6) motion tests the legal sufficiency of the claims asserted in a 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." Bell Atlantic Corp. v. Twombly , 550 U.S. ...


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