MARIA BARBARITA H. RODRIGUEZ, an individual, Plaintiff,
BANK OF NEW YORK MELLON, et al., Defendants.
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS [Dkt. No. 14]
GONZALO P. CURIEL, District Judge.
On August 7, 2013, Plaintiff Maria Barbarita H. Rodriguez ("Plaintiff") filed a complaint ("Complaint") against defendants The Bank of New York Mellon fka The Bank of New York, as Trustee for the Benefit of Certificateholders CWALT, Inc., Alternative Loan Trust 2007-HY6, Mortgage Pass-Through Certificates, Series 2007-11Y6 (erroneously sued as Bank of New York Mellon) ("BNYM"); Bank of America, N.A.; Mortgage Electronic Registration Systems, Inc. (erroneously sued as Mortgage Electronic Registration System, Inc.); Merscorp Holdings, Inc.; ReconTrust Company, N.A., "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 1-10 (collectively, "Defendants"). On September 13, 2013, Defendants filed a motion to dismiss, (Dkt. No. 14), pursuant to Federal Rule of Civil Procedure 12(b)(6), and a request for judicial notice, (Dkt. No. 15). The motion has been fully briefed. (Dkt. Nos. 19, 20.) Pursuant to L. Civ. R. 7.1(d)(1), the Court finds the matter suitable for adjudication without oral argument. For the reasons set out below, the Court GRANTS Defendants' Motion to Dismiss the first through seventh, ninth, and tenth causes of action in Plaintiff's Complaint without prejudice.
On May 9, 2007, Plaintiff completed a loan ("Loan") for the property located at 1921 Rue Michelle, Chula Vista, California, XXXXX-XXXX ("Property"), in the amount of $444, 000.00. (RJN, Ex. A at 1-3.) The Loan was secured by a deed of trust ("Deed of Trust") and a mortgage note ("Note"). (Dkt. No. 1, "Compl." ¶¶ 39.) The Deed of Trust listed the beneficiary as Mortgage Electronic Registration System ("MERS"); the lender as Countrywide Home Loans, Inc. dba America's Wholesale Lender; and the trustee as ReconTrust Company, N.A. ("ReconTrust"). (RJN, Ex. A at 2.)
On December 7, 2009, the San Diego County Recorder's Office recorded a "Corporation Assignment of Deed of Trust" ("Assignment") against the Property. (RJN, Ex. B.) Signed by "Regina Myles, Assistant Secretary" and notarized by notary public "Janet L. Koch, " the Assignment purported to assign and transfer all beneficial interest under the Deed of Trust to BNYM. (Id.) Plaintiff alleges the following defects in the Assignment: (1) Regina Myles is not an employee of MERS (Compl. ¶ 56); (2) neither Regina Myles nor MERS had legal authority to execute the Assignment (id.); (3) the Assignment was not properly notarized (Compl. ¶¶ 57-66). Due to these defects, Plaintiff alleges the Assignment is not legally valid and that BNYM has no legal or equitable right, title, or interest in Plaintiff's mortgage or Deed of Trust. (Compl. ¶¶ 68-69.)
Plaintiff alleges the identity of the beneficiary under Plaintiff's note or Deed of Trust is currently unknown to Plaintiff. (Id. ¶ 74.) Plaintiff alleges making payments in excess of $75, 000.00 to BNYM, in error, in response to BNYM monthly billing statements. (Id. ¶ 84.)
On December 16, 2011, the San Diego County Recorder's Office recorded a "Notice of Default and Election to Sell Under Deed of Trust" ("Notice of Default") which stated that Plaintiff was in default on the Loan in the amount of $89, 172.27 as of 12/15/2011. (RJN, Ex. C.) The Notice of Default stated that "[t]o find out the amount [Plaintiff] must pay, or to arrange for payment to stop the foreclosure, " Plaintiff had to contact BNYM, "c/o Bank of America, N.A." (Id. at 2.) Bank of America N.A. concurrently recorded a "California Declaration" dated December 9, 2011 declaring that "Pamela A. Lacy, MTG Servicing Specialist I" attempted "with due diligence to contact the borrower in accordance with California Civil Code Section 2923.5." (Id. at 4.) Plaintiff alleges attempting to contact Bank of America, N.A., ReconTrust, and BNYM to discuss options to cure the default, only to be redirected to other parties. (Compl. ¶ 89.) Plaintiff alleges she was not contacted by a loan servicer during the fourteen days following the Notice of Default. (Id. ¶ 90.)
On March 26, 2012, the San Diego County Recorder's Office recorded a "Notice of Trustee's Sale" which stated that ReconTrust, as "duly appointed trustee pursuant to the [Deed of Trust], " would sell the Property held under the Deed of Trust at public auction on April 17, 2012. (RJN, Ex. D.) The Notice of Trustee's Sale, signed by "Sunita Narayanan, Asst Vice President" of ReconTrust, stated that the obligation secured by the property to be sold "plus reasonable estimated costs, expenses and advances" was $542, 138.55. (Id.)
On June 19, 2012, Plaintiff filed a complaint in California Superior Court against BNYM, ReconTrust, BAC Home Loans Servicing, LP (formerly Countrywide Home Loans Servicing, LP), "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 1-10. (RJN, Ex. E.) The complaint sought declaratory and compensatory relief as well as punitive damages for the fractionalization and securitization of Plaintiff's loan which allegedly made Plaintiff's promissory note unenforceable. (Id. at 5-8.)
On October 2, 2012, Plaintiff filed a first amended complaint. (RJN, Ex. F.) On March 8, 2013, Judge Judith F. Hayes granted defendants' unopposed demurrer to the first amended complaint with prejudice, due to Plaintiff's failure to "state sufficient facts to constitute the claims asserted therein" and failure to demonstrate that reasonable amendment could be made due to Plaintiff's failure to file a written opposition to the demurrer. (RJN, Ex. G.)
On August 7, 2013, Plaintiff filed the U.S. District Court Complaint in the above-captioned matter. (Dkt. No. 1.) Plaintiff alleges ten causes of action, for: (1) Declaratory relief under 28 U.S.C. §§ 2201, 2202; (2) Cancellation of a voidable contract under Rev. & Tax Code §§ 23304.1, 23305A and Cal. Corp. Code §§ 191(C)(7); (3) Quasi-contract; (4) Negligence; (5) Violation of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq.; (6) Violation of the California Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code § 17200, et seq.; (7) Accounting; (8) Cancellation of Instruments; (9) Quiet Title; and (10) to enjoin the trustee's sale. (Id.)
Plaintiff alleges Defendants attempted to collect Plaintiff's mortgage payments despite knowledge that Defendants "were not acting on behalf of the current pecuniary beneficiary" of Plaintiff's note and the Deed of Trust. (Compl. ¶ 96.) Plaintiff further alleges that Defendants failed to properly credit payments made by Plaintiff, incorrectly calculated interest on Plaintiff's accounts, and failed to accurately debit fees. (Compl. ¶ 97.) Plaintiff alleges readiness and willingness to "unconditionally tender [Plaintiff's] obligation" under the Deed of Trust. (Compl. ¶¶ 112-116.)
On September 13, 2013, Defendants filed the present motion to dismiss. (Dkt. No. 14.) Defendants argue Plaintiff's claims are barred by res judicata due to the dismissal of Plaintiff's state court action with prejudice. (Dkt. No. 14 at 3-6, 10-11.) Defendants further argue Plaintiff's causes of action fail to state a claim. (Id. at 6-7, 11-18.)
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of a complaint. Navarro v. Block , 250 F.3d 729, 732 (9th Cir. 2001). Dismissal is warranted under Rule 12(b)(6) where the complaint lacks a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc. , 749 F.2d 530, 534 (9th Cir. 1984); see Neitzke v. Williams , 490 U.S. 319, 326 (1989) ("Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law."). Alternatively, a complaint may be dismissed where it presents a cognizable legal theory yet fails to plead essential facts under that theory. Robertson , 749 F.2d at 534. While a plaintiff need not give "detailed factual allegations, " a plaintiff must plead sufficient facts that, if true, "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 545 (2007). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Twombly , 550 U.S. at 547). A claim is facially plausible when the factual allegations permit "the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id . In other words, "the non-conclusory factual content, ' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Service , 572 F.3d 962, 969 (9th Cir. 2009). "Determining whether a complaint states a plausible claim for relief will... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal , 556 U.S. at 679.
In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume the truth of all factual allegations and must construe all inferences from them in the light most favorable to the nonmoving party. Thompson v. Davis , 295 F.3d 890, 895 (9th Cir. 2002); Cahill v. Liberty Mut. Ins. Co. , 80 F.3d 336, 337-38 (9th Cir. 1996). Legal conclusions, however, need not be taken as true merely because they are cast in the form of factual allegations. Ileto v. Glock, Inc. , 349 F.3d 1191, 1200 (9th Cir. 2003); W. Mining Council v. Watt , 643 F.2d 618, 624 (9th Cir. 1981). When ruling on a motion to dismiss, the court may consider the facts alleged in the complaint, documents attached to the complaint, documents relied upon but not attached to the complaint when authenticity is not contested, and matters of which the court takes judicial notice. Lee v. Los Angeles , 250 F.3d 668, 688-89 (9th Cir. 2001).
A. Judicial Notice
Defendants seeks judicial notice of seven documents: (1) a deed of trust recorded in the San Diego County Recorder's Office as document number XXXX-XXXXXXX on May 14, 2007; (2) a corporation assignment of deed of trust recorded in the San Diego County Recorder's Office as document number XXXX-XXXXXXX on December 7, 2009; (3) a notice of default recorded in the San Diego County Recorder's Office as document number XXXX-XXXXXXX on December 16, 2011; (4) a notice of trustee's sale recorded in the San Diego County Recorder's Office as document number XXXX-XXXXXXX on March 26, 2012; (5) a complaint filed in Rodriguez v. Bank of New York et al., No. 37-2012-00099212-CU-OR-CTL before the California Superior Court on June 19, 2012; (6) a first amended complaint filed in the same case on October 2, 2012; and (7) a minute order from proceedings before Judge Judith F. Hayes on March 8, 2013 at 10:30 a.m. in Rodriguez v. Bank of New York et al., No. 37-2012-00099212-CU-OR-CTL. (Dkt. No. 15.)
Under Federal Rule of Evidence 201(b), a district court may take notice of facts not subject to reasonable dispute that are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Fed.R.Evid. 201(b); see also Lee v. City of Los Angeles , 250 F.3d 668, 689 (9th Cir. 2001) (noting that the court may take judicial notice of undisputed matters of public record), overruled on other grounds by Galbraith v. County of Santa Clara , 307 F.3d 1119, 1125-26 (9th Cir. 2002). Courts have routinely taken judicial notice of records filed with the county recorder as well as pleadings filed with the state court. See e.g., Reyna Pasta Bella, LLC v. Visa USA, Inc. , 442 F.3d 741, 746 n. 6 (9th Cir. 2006); Liebelt v. Quality Loan Serv. Corp. , 2011 WL 741056, at *6 n. 2 (N.D. Cal. 2011); Reynolds v. Applegate, 2011 WL 560757, at *1 n. 2 (N.D. Cal. 2011); Giordano v. Wachovia Mortg., FSB , 2010 WL 5148428, at *1 n. 2 (N.D. Cal. 2011). Here, Plaintiff does not object to Defendants' Request for Judicial Notice, and the documents are publically recorded documents or publically available state court filings. Thus, the Court finds that the accuracy of these documents cannot reasonably be questioned. Accordingly, the Court hereby takes judicial notice of Exhibits 1-7.
B. Res Judicata
Defendants contend Plaintiff's claims are precluded by the doctrine of res judicata because Plaintiff has already litigated the same claims in state court in Superior Court Case No. 37-2012-00099212-CU-OR-CTL filed on June 19, 2012. (RJN, Ex. E.) The state court sustained Defendants' demurrer to the first amended complaint without leave to amend and entered a judgment of dismissal with prejudice on March 8, 2013. (RJN, Ex. G.) Defendants argue Plaintiff's current claims either were or could have been litigated in the prior state court action, so the resolution of Plaintiff's claims in state court bars this action. (Dkt. No. 14 at 4-6, 10-11.) Plaintiff responds only that Defendants' res judicata arguments are a "red herring" and ...