United States District Court, S.D. California
MARK L. MATCHYNSKI, JR., Plaintiff,
OCWEN LOAN SERVICING, et al., Defendants.
ORDER DISMISSING COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED [DKT NOS. 39, 40, 41]
ROGER T. BENITEZ, District Judge.
On August 19, 2013, Plaintiff Mark L. Matchynski commenced this foreclosure-related action by filing a Complaint. On January 16, 2014, this Court granted a Motion to Dismiss this case in its entirety without prejudice. (Docket No. 37). On February 3, 2014, Plaintiff filed a First Amended Complaint (FAC). (Docket No. 38).
Before this Court are three Motions to Dismiss filed by Defendant Pacific City Bank (Docket No. 39), Defendant Advantage Title (Docket No. 40), and Defendants Federal National Mortgage Association, Mortgage Electronic Registration System Inc. (MERS), and Ocwen Loan Servicing (Ocwen). (Docket No. 41). For the reasons stated below, the Motions to Dismiss are GRANTED and this Complaint is DISMISSED WITH PREJUDICE in its entirety.
According to the FAC, Plaintiff owns property in San Diego, California ("Subject Property"). He alleges that he tendered a promissory note to a corporate bank in exchange for a "bank check note." (FAC ¶ 13). He states that he transferred all "ownership, equity, and rights" in the property to the "MM Balboa Arms Trust" on March 12, 2013, with Plaintiff as trustee. ( Id. ¶¶ 16-17).
Plaintiff alleges that he sent a letter to Ocwen Loan Servicing on July 15, 2013, in which he asked to inspect his original promissory note. ( Id. ¶ 18). He states that they replied by sending a copy of the original note. ( Id. ¶ 19). He alleges that Ocwen cannot produce the original note because they collateralized it or "cashed it like a check" at the Federal Reserve Bank. ( Id. ¶ 20). He contends that they are required to produce the note, and do not qualify for any exceptions to that rule under the Uniform Commercial Code. ( Id. )
Plaintiff states that on December 19, 2013, he sent a "Qualified Written Request" (QWR) to Ocwen and Federal National Mortgage Association (FNMA). ( Id. ¶ 21). Ocwen allegedly provided an "improper" response on December 26, 2013, asserting that it had been determined that he did not submit a proper QWR under RESPA guidelines, and that Ocwen was not required to comply with QWR timelines. ( Id. ¶ 22). FNMA has not responded. ( Id. ¶ 24). Plaintiff states that he sent a second QWR to Ocwen on January 22, 2014, but the has not received a response. ( Id. ¶¶ 23, 25). Plaintiff states that a servicer is required to provide the information requested or explain why the information is unavailable or cannot be obtained. ( Id. ¶ 27).
Plaintiff also claims that his original mortgage note and deed of trust are void ab initio because no lawful money was lent in consideration for them, reiterating claims raised in his original complaint about banks impermissibly lending credit. ( Id. ¶ 29; see Compl.)
In the FAC, Plaintiff asserts violations of Real Estate Settlement Procedures Act (RESPA), reasserts his quiet title cause of action, and requests a permanent injunction.
Under Federal Rule of Civil Procedure 12(b)(6), a district court may grant a motion to dismiss if, taking all factual allegations as true, the complaint fails to state a plausible claim for relief on its face. FED. R. CIV. P. 12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556-57 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (requiring plaintiff to plead factual content that provides "more than a sheer possibility that a defendant has acted unlawfully"). Under this standard, dismissal is appropriate if the complaint fails to state enough facts to raise a reasonable expectation that discovery will reveal evidence of the matter complained of, or if the complaint lacks a cognizable legal theory under which relief may be granted. Twombly, 550 U.S. at 556.
A. Plaintiff Fails to State a Claim for a RESPA Violation
Plaintiff claims that Defendants Ocwen and FNMA did not properly respond to his QWR letters of December 19 and January 22. ( Id. ¶¶ 31, 32). No other Defendants were named in the cause of action. ( See FAC; Docket Nos. 43, 44, ...