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Velez v. Bank of America

United States District Court, N.D. California, San Jose Division

April 11, 2014

DAVID G. VELEZ, Plaintiff,
v.
BANK OF AMERICA, et al., Defendants.

ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS (RE: DKT NOS. 73, 75)

PAUL S. GREWAL, Magistrate Judge.

Defendants Bank Of America, N.A., WaMu Series 2007-OA3 Trust, J.P. Morgan Chase Bank, California Reconveyance Company, and Mortgage Electronic Registration Systems, Inc. (collectively, "Defendants") filed a motion to dismiss the original complaint, which the court granted on December 18, 2013, identifying several fundamental flaws with Plaintiff David G. Velez' legal theory. On January 17, 2014, Velez filed an amended complaint, which Defendants now seek to dismiss by two separate motions. Velez opposes. The parties appeared for hearing. Because the same fundamental flaws that mandated dismissal of the first complaint remain in this version, the court GRANTS the motions.

I. BACKGROUND

The court draws the following facts, taken as true for the purposes of the motion to dismiss, from Velez' complaint and from the documents judicially noticed.[1]

On November 8, 2006, Velez obtained a loan from Plaza Home Mortgage, Inc., ("Plaza Home"). At that time, Velez signed a Deed of Trust ("DOT") against 2180 Wynfair Ridge Way, San Jose, CA 95138 ("the Property") to secure a Promissory Note ("Note") in the amount of $1, 500, 000 as part of the loan agreement.[2] The Note listed "Mortgage Electronic Registration Systems" ("MERS") as beneficiary and was recorded on November 15, 2006.[3]

On January 31, 2009, MERS recorded a transfer of the DOT and Note to LaSalle Bank ("LaSalle"), as Trustee for Washington Mutual Mortgage Pass-Through Certificates WMALT Series 2007-OA3 Trust.[4]

On February 3, 2009, a Substitution of Trustee was recorded in connection with the DOT, substituting in CRC as Trustee.[5] On the same day, CRC requested the recording of a Notice of Default and Election to Sell Under Deed of Trust, which was recorded on the same day.[6]

On October 12, 2011, CRC requested and recorded the first of three Notice of Trustee's Sale in connection with the DOT.[7] The sales were scheduled for November 12, 2010, April 1, 2011, and November 2, 2011, but have not yet taken place.

On June 20, 2013, Velez filed this suit, alleging violations of both state and federal laws connection with the foreclosure process on his home.[8]

On July 30, 2013, Defendants moved to dismiss Velez' complaint, a request which the court granted on December 18, 2013, with leave to file an amended complaint.[9]

II. LEGAL STANDARDS

Under Rule 8, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief."[10] If a plaintiff fails to proffer "enough facts to state a claim to relief that is plausible on its face, " the complaint may be dismissed for failure to state a claim upon which relief may be granted.[11] A claim is facially plausible "when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."[12] Accordingly, under Fed.R.Civ.P. 12(b)(6), which tests the legal sufficiency of the claims alleged in the complaint, "[d]ismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory."[13]

On a motion to dismiss, the court must accept all material allegations in the complaint as true and construe them in the light most favorable to the non-moving party.[14] The court's review is limited to the face of the complaint, materials incorporated into the complaint by reference, and matters of which the court may take judicial notice.[15] However, the court need not accept as true allegations that are conclusory, unwarranted deductions of fact, or unreasonable inferences.[16]

"Dismissal with prejudice and without leave to amend is not appropriate unless it is clear... that the complaint ...


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