United States District Court, N.D. California
KIONA L. SMILEY, Plaintiff,
JP MORGAN CHASE, et al., Defendants.
ORDER GRANTING MOTION TO DISMISS Re: Dkt. No. 20
NATHANAEL M. COUSINS, Magistrate Judge.
This case arises out of the foreclosure on a 2007 mortgage loan taken out by pro se plaintiff Kiona Smiley. Pending before the Court is JPMorgan's motion to dismiss the First Amended Complaint for failure to state a claim. For the reasons set forth below, the Court finds that Smiley fails to state a claim upon which relief can be granted, and therefore GRANTS JPMorgan's motion to dismiss the complaint.
Smiley initially filed a complaint alleging negligence, breach of contract, unfair business practices, fraud and deceit, and slander. Dkt. No. 1. She alleged that JPMorgan foreclosed on her property while she was "awaiting status of [a] modification, " presumably of her mortgage. Smiley alleged that JPMorgan knew plaintiff's address but "kept corresponding with a vacant house." Id. She further alleged that JPMorgan "reacted without thinking, " took "negligent actions, " and committed "grand larceny, " but failed to specify what facts supported those allegations. Id. Plaintiff stated that her "demand started at $329, 000.00 [but] now it's at $3.9 Million Dollars." Id.
This Court dismissed Smiley's complaint for failure to state a claim upon which relief can be granted. Dkt. No. 8. Additionally, the Court found that she failed to allege facts supporting federal subject matter jurisdiction. Id. The Court granted Smiley's application to proceed in forma pauperis and gave Smiley leave to amend her complaint. Id.
In her First Amended Complaint, Smiley alleges that JPMorgan violated her due process rights under the Fourteenth Amendment, the Truth in Lending Act, and the Real Estate Settlement Procedures Act. Dkt. No. 12. Smiley alleges that she refinanced the loan on her rental property located in Oakland on May 6, 2007. Id. at 3. She alleges that she requested a loan modification on her Oakland rental property in October 2009. Id. While waiting for a response to her request, she states that she opened an account with the Stockton, California branch of JPMorgan because it was "the only way [she] can make a payment" on the note to her property. Id.
Smiley then alleges that some time afterwards she discovered another person living at her Oakland rental property. Id. On a later visit to the property, she found a padlock on the gate and learned that her house had been foreclosed upon without notice to her. Id. Smiley alleges that she called JPMorgan "a number of times" to find out what happened. Id. JPMorgan told her that there was not anything she could do. Id. Smiley alleges that JPMorgan never called or wrote to her Stockton home address-where she allegedly lives-concerning the foreclosure. Id. at 4. Instead, Smiley states that JPMorgan only contacted her rental property in Oakland. Id. Smiley states that she "never had a chance to respond in any kind of way." Id. She states that JPMorgan knew she did not live in the Oakland rental property. Id. JPMorgan's failure to contact her in Stockton violated her due process rights, as well as RESPA and TILA.
Smiley and JPMorgan both consented to the jurisdiction of a magistrate judge under 28 U.S.C. § 636(c). Dkt. Nos. 6, 16.
II. LEGAL STANDARD
A motion to dismiss for failure to state a claim under Rule 12(b)(6) tests the legal sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). On a motion to dismiss, all allegations of material fact are taken as true and construed in the light most favorable to the non-movant. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). The Court, however, need not accept as true "allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). Although a complaint need not allege detailed factual allegations, it must contain sufficient factual matter, accepted as true, 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 is facially plausible when it "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).
If a court grants a motion to dismiss, leave to amend should be granted unless the pleading could not possibly be cured by the allegation of other facts. Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000).
A. RESPA Claim
JPMorgan moves to dismiss plaintiff's claim under RESPA on the grounds that it is barred by the statute of limitations and fails to state a claim. Dkt. No. 20 at 7-8. "Congress enacted RESPA to control real estate settlement costs by insur[ing] that consumers throughout the Nation are provided with greater and more timely information on the nature and costs of the settlement process and are protected from unnecessarily high settlement charges caused by certain abusive practices that have developed in some areas of the country.'" Bloom v. Martin, 865 F.Supp. 1377, 1381 (N.D. Cal. 1994), aff'd, 77 F.3d 318 (9th Cir. 1996) (quoting 12 U.S.C. § 2601(a) (1989)). "To effectuate these objectives, RESPA requires advance disclosure of settlement ...