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P. Pura v. Citimortgage, Inc.

United States District Court, C.D. California

January 2, 2015




Proceedings: (IN CHAMBERS) Order Re: Defendant's Motion to Dismiss (DE 9)

On September 29, 2014, Maria Victoria P. Pura (" Plaintiff") filed a complaint against Citimortgage, Inc. (" Defendant") alleging (1) Violation of Cal. Civ. Code § 2923.7 (" section 2923.7"); (2) Breach of the Implied Covenant of Good Faith and Fair Dealing; (3) Negligent Misrepresentation; (4) Violation of Cal. Civ. Code § 2924.10 (" section 2924.10"); (5) Negligence; and (6) Violation of Cal. Bus. & Prof. Code § 17200 (" section 17200"). Plaintiff's claims arise out of a loan modification application that was submitted to Defendants, requesting modification of a loan on real property located at 2052 Marine Avenue, Gardena, California 90249 (" the Property").

On October 30, 2014, Defendant removed this action on the basis of diversity jurisdiction. Defendant now moves to dismiss the action in its entirety, pursuant to Fed. Rule of Civ. Procedure (" Rule") 12(b)(6).

The federal pleading standard states that " a claim for relief must contain . . . a short and plain statement . . . showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Under Rule 12(b)(6), a party may move to dismiss for failure to state a claim upon which relief can be granted. In deciding a Rule 12(b)(6) motion, the court must assume allegations in the challenged complaint are true, and construe the complaint in the light most favorable to the non-moving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). However, a court need not accept as true unreasonable inferences, unwarranted deductions of fact, or conclusory legal allegations cast in the form of factual allegations. See W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). Furthermore, a pleading must contain sufficient factual matter that, if accepted as true, states a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). A claim is facially plausible when there are sufficient factual allegations to draw a reasonable inference that the defendant is liable for the misconduct alleged. Id.

Here, Plaintiff alleges the following. On November 27, 2006, Plaintiff refinanced the loan on the Property by executing a Deed of Trust, secured by a Note and the Property in the amount of $428, 700.00. (Compl., ¶ 11.) The loan was refinanced with Defendant's predecessor. Id. In 2013, Plaintiff had a material change in her financial circumstances. (Compl., ¶ 12.) On June 22, 2013, Plaintiff submitted a Request for Loan Modification (" RMA") with Defendant. On July 16, 2013, Plaintiff attempted to get a status update on her application. (Compl., ¶ 18.). She heard no word. (Compl., ¶ ¶ 18 and 19.) On August 23, 2013, Plaintiff submitted an updated tax return and bank statements, but failed to receive acknowledged receipt of the documents. (Compl., ¶ 20.) Two months later, on September 13, 2013, Plaintiff contacted Defendant to get an update on her RMA, and to request a single point of contact (" SPOC"). (Compl., ¶ 21.) A representative, not an SPOC for Plaintiff, contacted Plaintiff and informed her that her file was complete and under review. Id. Plaintiff never received written notification that Defendants had established an SPOC or any acknowledgment letter advising her of deadlines and required documents. (Compl., ¶ 22.) On July 17, 2014, a third party phoned Defendant on behalf of Plaintiff to get an update. (Compl., ¶ 23.) A representative, not an SPOC for Plaintiff, requested updated documents. Id. On July 29, 2014, Plaintiff provided additional financial documents to Defendant. (Compl., ¶ 25.) Plaintiff has not received any acknowledgment of receipt from Defendant as to her RMA and has not been assigned a SPOC. (Compl., ¶ ¶ 24 and 25.)

Plaintiff alleges that Defendant's failure to establish an SPOC and provide written acknowledgment of receipt of the application documents constitute violations of sections 2923.7 and 2924.10. Plaintiff further alleges that Defendant also failed to fairly and timely review her RMA and evaluate her for other options despite false representations to do so. Plaintiff alleges that, taken together, these acts breached Defendant's common law duties, giving rise to her common law claims and claim under section17200.

Defendant's challenge to Plaintiff's complaint consists of arguments going to the merits, supported by evidence that Defendant asserts is judicially noticeable. As an initial matter, the pertinent evidence Defendant submits is comprised of correspondence sent by Defendant to Plaintiff (Def.'s Request for Judicial Notice, Exs. 1-5), and an application document submitted by Plaintiff to Defendant (Def.'s Request for Judicial Notice, Ex. 6). This evidence is not " (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed.R.Evid. 201(d). As such, the evidence is not judicially noticeable, and the Court cannot consider such evidence at this juncture of litigation. The balance of Defendant's challenge rests on Defendant's assertion that it did not commit the acts of which Plaintiff's complains in her complaint. However, since this action is currently at the pleading stage, and the wrongful acts alleged by Plaintiff are not implausible, the Court must assume the allegations are true. While there may be strong indication that Plaintiff's claims will not survive summary judgment, Plaintiff must still be given an opportunity to discover facts to prove her case. Therefore, at this stage of litigation, the Court finds that Plaintiff has adequately stated claims for relief.

Based on the foregoing, the Court denies Defendant's motion.


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