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Brink v. Alternative Loan Trust 2006-39Cb

United States District Court, E.D. California

May 8, 2014

DAVID L. BRINK, Plaintiff,


DALE DROZD, Magistrate Judge.

This matter came before the court on January 24, 2014, for hearing of defendant's motion to dismiss plaintiff's amended complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff David Brink, proceeding pro se in this action, appeared telephonically on his own behalf. Attorney Rachel Wintterle appeared telephonically on behalf of the defendant The Bank of New York Mellon fka Bank of New York as Trustee for the Certificate Holders of the CWALT Inc., Alternative Loan Trust 2006-39CB, Mortgage Pass-Through Certificates, Series 2006-39CB (erroneously sued as Alternative Loan Trust 2006-39CB and Bank of New York Mellon).

Upon consideration of the arguments on file and at the hearing, and for the reasons set forth below, the undersigned will recommend that defendant's motion to dismiss be granted.


Plaintiff David Brink commenced this action on May 2, 2013, by paying the required filing fee and filing a complaint. (Dkt. No. 1.) On November 5, 2013, plaintiff requested leave to file an amended complaint, (Dkt. No. 28), along with a proposed amended complaint naming as defendants The Bank of New York Mellon, ("BNYM"), and New Penn Financial dba Resurgent Mortgage Servicing, Inc.[1] (Dkt. No. 29.) On November 13, 2013, plaintiff's request for leave to file the amended complaint was granted and the amended complaint filed November 5, 2013, was deemed the operative complaint. (Dkt. No. 30.)

On November 25, 2013, defendant BNYM filed the motion to dismiss now pending before the court. (Dkt. No. 31.) Plaintiff filed an opposition on December 9, 2013, (Dkt. No. 33), and defendant filed a reply on January 8, 2014. (Dkt. No. 34.)


I. Legal Standards Applicable to Motions to Dismiss Pursuant to Rule 12(b)(6)

The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal sufficiency of the complaint. N. Star Int'l v. Ariz. Corp. Comm'n , 720 F.2d 578, 581 (9th Cir. 1983). "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). A plaintiff is required to allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007). "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." Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009).

In determining whether a complaint states a claim on which relief may be granted, the court accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding , 467 U.S. 69, 73 (1984); Love v. United States , 915 F.2d 1242, 1245 (9th Cir. 1989). In general, pro se complaints are held to less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner , 404 U.S. 519, 520-21 (1972). However, the court need not assume the truth of legal conclusions cast in the form of factual allegations. United States ex rel. Chunie v. Ringrose , 788 F.2d 638, 643 n.2 (9th Cir. 1986). While Rule 8(a) does not require detailed factual allegations, "it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation." Iqbal , 556 U.S. at 678. A pleading is insufficient if it offers mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Twombly , 550 U.S. at 555. See also Iqbal , 556 U.S. at 676 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."). Moreover, it is inappropriate to assume that the plaintiff "can prove facts which it has not alleged or that the defendants have violated the... laws in ways that have not been alleged." Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters , 459 U.S. 519, 526 (1983).

In ruling on a motion to dismiss brought pursuant to Rule 12(b)(6), the court is permitted to consider material which is properly submitted as part of the complaint, documents that are not physically attached to the complaint if their authenticity is not contested and the plaintiff's complaint necessarily relies on them, and matters of public record. Lee v. City of Los Angeles , 250 F.3d 668, 688-89 (9th Cir. 2001).


In his amended complaint plaintiff alleges that the "[d]efendants are strangers to a Deed of Trust and Note claiming a right or interest to Plaintiff[s] home via an ex post facto assignment of a Deed of Trust.... to a New York Trust years after the Trust's closing date...." (Am. Compl. (Dkt. No. 29) at 2.)[2] Additionally, the amended complaint alleges as follows. On or about October 28, 2011, an "Assignment of Deed of Trust... was executed in California and recorded in Sacramento County Record's Office on November 1, 2011...." ( Id. at 12.) The assignment was executed by Mortgage Electronic Registrations Systems, Inc., ("MERS"), and purported to transfer to the Alternative Loan Trust 2006-39CB, ("Trust"), which was controlled by defendant BNYM acting as the trustee, the deed of trust to plaintiff's home. (Id.) "[U]nder color of this assignment, " defendants are now "threatening an imminent taking of plaintiff's property." (Id.)

However, the assignment of plaintiff's deed of trust did not "comport with the requirements" of the Trust's Pooling and Servicing Agreement, ("PSA"), and the law of the state of New York, which governed the Trust. ( Id. at 13.) Specifically, the Trust's closing date was November 30, 2006, and thus the October 28, 2011 transfer of plaintiff's deed to the Trust came "years after the closing date of the trust." ( Id. at 15.) Moreover, "[a]ccording to the PSA only the depositor may make assignments to the trust, " (id. at 13), ...

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