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Monreal v. Deutsche Bank National Trust Co.

United States District Court, Ninth Circuit

October 22, 2013

JUANA MONREAL, an Individual, Plaintiff,
v.
DEUTSCHE BANK NATIONAL TRUST COMPANY; GMAC MORTGAGE, LLC; EXECUTIVE TRUSTEE SERVICES LLC D/B/A ETS SERVICES, LLC; ALL PERSONS UNKNOWN CLAIMING ANY LEGAL OR EQUITABLE RIGHT, TITLE, ESTATE, LIEN OR INTEREST IN THE PROPERTY DESCRIBED IN THE COMPLAINT ADVERSE TO PLAINTIFF'S TITLE OR ANY CLOUD ON PLAINTIFF'S TITLE THERETO; AND DOES 1-50, INCLUSIVE, Defendants.

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT AND CLOSING CASE (Doc. No. 20)

ANTHONY J. BATTAGLIA, District Judge.

Presently before the Court is Defendants GMAC Mortgage, LLC ("GMAC"), Executive Trustee Services, LLC, d/b/a ETS Services, LLC ("ETS"), and Mortgage Electronic Registration Systems, Inc. ("MERS") (collectively, "Defendants") motion to dismiss Plaintiff Juana Montreal's ("Plaintiff") First Amended Complaint ("FAC").[1] (Doc. No. 20.) Defendant Deutsche Bank National Trust Company ("Deutsche Bank") filed a notice of joinder in Defendants' motion to dismiss on October 1, 2013.[2] (Doc. No. 26.) In accordance with Civil Local Rule 7.1.d.1, the Court finds the motion suitable for determination on the papers and without oral argument. (Doc. No. 25.) For the reasons set forth below, the Court GRANTS Defendants' motion to dismiss Plaintiff's claims arising under federal law with prejudice, and declines to exercise supplemental jurisdic-tion over the remaining state-law claims. Therefore, the remaining state-law claims are dismissed without prejudice. Accordingly, the Clerk of Court is instructed to enter judgment and close the case.

BACKGROUND

I. Factual Background

On August 17, 2006, Plaintiff borrowed $301, 600.00 ("the Loan") from Suntrust Mortgage, Inc. ("Suntrust") to purchase the property located at 4414 Newton Ave., San Diego, California 92113 ("the Property").[3] (FAC ¶¶ 9, 42.) The Loan was memorialized by a Promissory Note (the "Note") and secured by a Deed of Trust ("Deed of Trust") on the Property. ( Id. at ¶ 42, Ex. B; Doc. No. 21, Ex. 2.) The Deed of Trust named MERS as the beneficiary and Jackie Miller as the trustee.[4] (Doc. No. 21, Ex. 2 at 1.) On August 24, 2012, MERS assigned the beneficial interest in the Deed of Trust ("Assignment of the Deed of Trust") to Deutsche Bank, as trustee for HarborView Mortgage Loan Trust Mortgage Loan Pass-Through Certificates, Series 2006-14. (FAC, Ex. C; Doc. No. 21, Ex. 3.) The Assignment of the Deed of Trust was recorded in the official records of the San Diego County Recorder's Office on August 31, 2012, as Document No. 2012-0527658. ( Id. )

On October 4, 2012, Deutsche Bank substituted ETS as trustee under the Deed of Trust ("Substitution of Trustee"). (FAC, Ex. D; Doc. No. 21, Ex. 4.) The Substitution of Trustee was recorded in the official records of the San Diego County Recorder's Office on November 9, 2012, as Document No. 2012-0701420. ( Id. ) The Substitution of Trustee was signed by Jeannette Piccone as "Authorized Officer." ( Id. ) The Substitution of Trustee was then notarized by John Nitkiewicz, declaring under penalty of perjury that Jeannette Piccone had personally appeared and proven that she had executed the Substitution of Trustee in her authorized capacity. ( Id. )

On November 7, 2012, ETS, as trustee under the Deed of Trust, issued a notice of default and election to sell under the Deed of Trust ("Notice of Default"). (FAC, Ex. E; Doc. No. 21, Ex. 5.) The Notice of Default was signed by Maricela Miseroy as "Trustee Sale Officer." ( Id. ) The Notice of Default stated that as of November 7, 2012, Plaintiff was in default in the amount of $29, 987.00. ( Id. ) The Notice of Default also informed Plaintiff that she must contact Deutsche Bank to arrange for payment in order to stop foreclosure of the Property. ( Id. ) The Notice of Default was recorded in the official records of the San Diego County Recorder's Office on November 9, 2012, as Document No. 2012-0701421. ( Id. )

On February 12, 2013, Omar Solorzano, as authorized agent for ETS, recorded a Notice of Trustee's Sale ("Notice of Trustee's Sale"). (FAC, Ex. F; Doc. No. 21, Ex. 6.) The Notice of Trustee's Sale was recorded in the official records of the San Diego County Recorder's Office on February 15, 2013, as Document No. 2013-0103723. ( Id. ) The Notice of Trustee's Sale set a foreclosure sale date of March 12, 2013, and informed Plaintiff that the total amount of the unpaid balance on the underlying obligation, plus reasonable estimated costs, expenses, and advances, was currently $360, 222.88. ( Id. ) On March 14, 2013, after the Property was sold at auction, ETS executed a trustee's deed ("Trustee Deed") indicating that the Property had been sold to Aslan Residential I, LLC ("Aslan Residential"). (Doc. No. 21, Ex. 7.) The Trustee Deed was recorded in the official records of the San Diego County Recorder's Office on March 29, 2013, as Document No. 2013-0200241. ( Id. )

II. Procedural History

Plaintiff filed the original Complaint on March 28, 2013, fifteen days after the Property was sold to Aslan Residential. (Doc. No. 1.) The original Complaint contained ten causes of action, including: (1) violation of California's Unfair Competition Law ("UCL"), Bus. & Prof. Code § 17200; (2) intentional misrepresentation; (3) negligent misrepresentation; (4) fraudulent concealment; (5) quiet title; (6) declaratory relief; (7) violation of the Truth in Lending Act ("TILA"), 15 U.S.C. § 1601; (8) violation of the Home Ownership and Equity Protection Act ("HOEPA"), 15 U.S.C. § 1639; (9) violation of the Real Estate Settlement Procedures Act ("RESPA") 12 U.S.C. §§ 2601; and (10) violation of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692. ( Id. )

On June 4, 2013, the Court granted Defendants' motion to dismiss the original Complaint. (Doc. No. 16.) The Court dismissed the first cause of action (UCL), second cause of action (intentional misrepresentation), third cause of action (negligent misrepresentation), fourth cause of action (fraudulent concealment), part of the seventh cause of action (TILA damages claim), eighth cause of action (RESPA), and the ninth cause of action (HOEPA damages claim) with leave to amend. (Doc. No. 16 at 23.) The Court dismissed the fifth cause of action (quiet title), sixth cause of action (declaratory relief), part of the seventh cause of action (TILA rescission claim), and tenth cause of action (FDCPA) without leave to amend. (Doc. No. 16 at 24.) Plaintiff was further instructed that any new claims or parties may not be added without leave of court. ( Id. ) Plaintiff filed the FAC on July 8, 2013. (Doc. No. 18.) The FAC alleges four causes of action against Deutsche Bank, GMAC, ETS, and MERS, including: (1) violation of the UCL; (2) negligent misrepresentation; (3) violation of RESPA; and (4) violation of HOEPA. ( Id. )

LEGAL STANDARD

I. Motion to Dismiss

Dismissal is appropriate under Federal Rule of Civil Procedure 12(b)(6) when a plaintiff's allegations fail "to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). In ruling on a motion to dismiss, the court must "accept all material allegations of fact as true and construe the complaint in a light most favorable to the non-moving party." Vasquez v. L.A. Cnty., 487 F.3d 1246, 1249 (9th Cir. 2007). However, courts are not "bound to accept as true a legal conclusion couched as a factual allegation." Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009).

A Rule 12(b)(6) 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. 1990). To survive a motion to dismiss, a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Plausibility does not equate to probability, but it requires "more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 664. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Dismissal of claims that fail to meet this standard should be with leave to amend unless it is clear that amendment could not possibly cure the complaint's deficiencies. See Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1296 (9th Cir. 1998).

DISCUSSION

The FAC alleges two claims arising under federal law, RESPA and HOEPA, and two claims arising under state law, negligent misrepresentation and violation of the UCL. The Court's subject matter jurisdiction is premised on federal question jurisdiction over the claims arising under federal law, and supplemental jurisdiction over the pendent state-law claims.[5] Accordingly, because the Court finds Plaintiff has failed to state a viable cause of action under either RESPA or HOEPA, even after being given an opportunity to amend her pleadings, the Court dismisses the federal causes of action with prejudice, and declines to exercise supplemental jurisdiction over the remaining state-law claims. As a result, the Court does not address the merits of Plaintiffs' state-law causes of action.

I. Claims Arising Under Federal Law

A. Violation of RESPA

Plaintiff's third cause of action alleges that defendants Deutsche Bank, GMAC, ETS, and MERS violated RESPA by placing loans with consumers for the purpose of unlawfully increasing, or otherwise obtaining, yield spread fees and sums in excess of what would have been lawfully earned. (Doc. No. 18 ¶ 126.) Defendants move to dismiss this claim on the basis that Plaintiff has not made any material alterations to the factual allegations in the original Complaint, which was dismissed by the Court for failing ...


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