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Ngo v. Green Tree Servicing, LLC

United States District Court, S.D. California

March 13, 2014

THANG M. NGO, Plaintiff,
GREEN TREE SERVICING, LLC, et al., Defendants.


THOMAS J. WHELAN, District Judge.

Pending before the Court is Defendant Green Tree Servicing's motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), and request for judicial notice. Plaintiff Thang M. Ngo opposes the motion. The request for judicial notice is unopposed.

The Court decides the matter on the papers submitted and without oral argument under Civil Local Rule 7.1(d)(1). The Court GRANTS Defendant's request for judicial notice [Doc. 6], and for the following reasons GRANTS Defendant's motion to dismiss [Doc. 5].


On October 4, 2002, Thang M. Ngo obtained a loan in the amount of $396, 000 with a monthly mortgage payment of $1, 683.83. (" Compl. " [Doc. 1-2], ¶ 24.) At some point, Bank of America became the servicer of Plaintiff's loan. ( Id. at ¶ 25.) Plaintiff made on-time monthly payments until August 2012, when losses at her nail-salon business rendered her unable to make the payments. ( Id. at ¶¶ 24, 26.) From August 2012 through March 2013, Plaintiff repeatedly requested assistance from Bank of America, which was denied in part because the loan was being transferred to Defendant Green Tree. ( Id. at ¶ 26.)

In April 2013, Defendant became the servicer of Plaintiff's loan. ( Compl. at ¶ 26; RJN [Doc. 6], Ex. C [Doc. 6-4].) On May 6, 2013, following a request from Plaintiff, Defendant offered her a Trial Period Plan ("TPP") which increased her monthly payments from $1, 683.83 to $2, 103.94. ( Compl., ¶¶ 26-27.) Despite multiple requests from Plaintiff, Defendant offered her no further options. ( Id. at ¶ 27.)

On December 6, 2013, Plaintiff filed a civil action in the San Diego County Superior Court alleging the following six causes of action: (1) breach of contract; (2) constructive fraud; (3) promissory estoppel; (4) negligence; (5) negligent misrepresentation; and (6) violation of Business and Professions Code §§ 17200, et seq. Defendant subsequently removed the case to this Court based on federal diversity jurisdiction. ( Removal Notice [Doc. 1], ¶ 7.) Defendant now moves to dismiss the Complaint. Plaintiff opposes.


The court must dismiss a cause of action for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) tests the complaint's sufficiency. See N. Star Int'l v. Ariz. Corp. Comm'n. , 720 F.2d 578, 581 (9th Cir. 1983). All material allegations in the complaint, "even if doubtful in fact, " are assumed to be true. Id . The court must assume the truth of all factual allegations and must "construe them in light most favorable to the nonmoving party." Gompper v. VISX, Inc. , 298 F.3d 893, 895 (9th Cir. 2002); see also Walleri v. Fed. Home Loan Bank of Seattle , 83 F.3d 1575, 1580 (9th Cir. 1996).

As explained by the Supreme Court, "[w]hile 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 Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007) (internal citations omitted). Instead, the allegations in the complaint "must be enough to raise a right to relief above the speculative level." Id . A complaint may be dismissed as a matter of law either for lack of a cognizable legal theory or for insufficient facts under a cognizable theory. Robertson v. Dean Witter Reynolds, Inc. , 749 F.2d 530, 534 (9th Cir. 1984).

Generally, courts may not consider material outside the complaint when ruling on a motion to dismiss. Hal Roach Studios, Inc. v. Richard Feiner & Co. , 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). However, courts may consider documents specifically identified in the complaint whose authenticity is not questioned by parties. Fecht v. Price Co. , 70 F.3d 1078, 1080 n.1 (9th Cir. 1995) (superceded by statutes on other grounds). Moreover, courts may consider the full text of those documents, even when the complaint quotes only selected portions. Id . Courts may also consider material properly subject to judicial notice without converting the motion into one for summary judgment. Barron v. Reich , 13 F.3d 1370, 1377 (9th Cir. 1994) (citing Mack v. S. Bay Beer Distribs., Inc. , 798 F.2d 1279, 1282 (9th Cir. 1986), abrogated on other grounds by Astoria Fed. Sav. and Loan Ass'n v. Solimino , 501 U.S. 104 (1991)).


A. Plaintiff has failed to state a claim for breach of contract.

Plaintiff's first cause of action alleges Defendant Green Tree breached the Servicer Participation Agreement ("SPA") to which Plaintiff claims to be a third-party beneficiary, by failing to follow the Home Affordable Refinance Program ("HAMP") guidelines allegedly required therein. ( Compl., ¶¶ 13, 30.) Plaintiff also claims that under California Civil Code § 1549, she can enforce the SPA ...

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