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Bailey v. Nationstar Mortgage, LLC

United States District Court, E.D. California

August 29, 2014

JAMES BAILEY, Plaintiff,
v.
NATIONSTAR MORTGAGE, LLC, et al., Defendants.

FINDINGS AND RECOMMENDATION

CRAIG M. KELLISON, Magistrate Judge.

Plaintiff, proceeding pro se, brings this civil action related to the foreclosure of his property. This action was removed to this court from the Shasta County Superior Court on October 17, 2013. Pending before the court is defendants' motion to dismiss (Doc. 6). The hearing on the motion was taken off calendar pursuant to Local Rule 230(g) as no timely opposition was filed. Plaintiff filed a late opposition, which has been considered.

I. Background

This foreclosure action was removed from state court to this court by the defendants. The complaint alleges claims of wrongful foreclosure, intentional infliction of emotional distress, slander of title, quiet title, fraud and rescission; plaintiff is seeking injunctive and declaratory relief.

Plaintiff alleges in his complaint, with attached exhibits[1] showing, he executed a deed of trust with Home Savings of America, on or about August 31, 2006, which was recorded on September 26, 2006, in Shasta County. On June 28, 2012, a corporate assignment of deed of trust and a substitution of trustee were each recorded in Shasta County. On June 28, 2012, a notice of default and a substitution of trustee were each recorded. Then on March 14, 2013, an assignment of deed of trust and a notice of trustee's sale[2] were each recorded, also in the Shasta County Recorder's Office.

II. Motion to Dismiss

A. Motion

Defendants filed the motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(6). The defendants argue plaintiffs claims fail as a matter of law and are not sufficiently plead. Plaintiff concedes some of his claims are defective, but challenges the motion to dismiss others.

B. Standards

In considering a motion to dismiss, the court must accept all allegations of material fact in the complaint as true. See Erickson v. Pardus , 551 U.S. 89, 93-94 (2007). The court must also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer v. Rhodes , 416 U.S. 232, 236 (1974); see also Hosp. Bldg. Co. v. Rex Hosp. Trustees , 425 U.S. 738, 740 (1976); Barnett v. Centoni , 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All ambiguities or doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen , 395 U.S. 411, 421 (1969). However, legally conclusory statements, not supported by actual factual allegations, need not be accepted. See Ashcroft v. Iqbal , 129 S.Ct. 1937, 1949-50 (2009). In addition, pro se pleadings are held to a less stringent standard than those drafted by lawyers. See Haines v. Kerner , 404 U.S. 519, 520 (1972). "Although a pro se litigant... may be entitled to great leeway when the court construes his pleadings, those pleadings nonetheless must meet some minimum threshold in providing a defendant with notice of what it is that it allegedly did wrong." Brazil v. United States Dept of Navy , 66 F.3d 193, 199 (9th Cir. 1995).

Rule 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief" in order to "give the defendant fair notice of what the... claim is and the grounds upon which it rests." Bell Atl. Corp v. Twombly , 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson , 355 U.S. 41, 47 (1957)). However, in order to survive dismissal for failure to state a claim under Rule 12(b)(6), a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Id. at 555-56. The complaint must contain "enough facts to state a claim to relief that is plausible on its face." Id. at 570. "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." Iqbal , 129 S.Ct. at 1949. "The plausibility standard is not akin to a probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id . (quoting Bell Atl. Corp. , 550 U.S. at 556). "Where a complaint pleads facts that are merely consistent with' a defendant's liability, it stops short of the line between possibility and plausibility for entitlement to relief." Id . (quoting Bell Atl. Corp. , 550 U.S. at 557).

To determine whether a complaint states a claim upon which relief can be granted, the court generally may not consider materials outside the complaint and pleadings. See Cooper v. Pickett , 137 F.3d 616, 622 (9th Cir. 1998); Branch v. Tunnell , 14 F.3d 449, 453 (9th Cir. 1994). The court may, however, consider: (1) documents whose contents are alleged in or attached to the complaint and whose authenticity no party questions, see Branch , 14 F.3d at 454; (2) documents whose authenticity is not in question, and upon which the complaint necessarily relies, but which are not attached to the complaint, see Lee v. City of Los Angeles , 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials of which the court may take judicial notice, see Barron v. Reich , 13 F.3d 1370, 1377 (9th Cir. 1994).

Finally, leave to amend must be granted "[u]nless it is absolutely clear that no amendment can cure the defects." Lucas v. Dep't of Corr. , 66 F.3d 245, 248 (9th Cir. 1995) (per curiam); see also Lopez v. Smith , 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc).

C. Discussion

1. Wrongful Foreclosure

Plaintiff alleges in his complaint that the defendants failed to provide proper notice during the foreclosure process, the assignments were fraudulent and not perfected, that the foreclosure documents were fabricated, and that he had ...


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