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Pannabecker v. U.S. Bank N.A.

United States District Court, C.D. California

March 5, 2015

TIMOTHY R. PANNABECKER, Plaintiff,
v.
U.S. BANK N.A. as TRUSTEE for the CSMC MORTGAGE BACKED TRUST SERIES 2006-2; CERTIFICATEHOLDERS OF THE CSMC MORTGAGE-BACKED TRUST SERIES 2006-2; CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.; CAL-WESTERN RECONVEYANCE, LLC; AMERICA'S SERVICING COMPANY; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS; ROES 1-10 and DOES 1-10, inclusive, representing a class of unknown persons who claim or have the right to claim an interest in certain real property located in Upland, California, Defendants.

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS [16]

OTIS D. WRIGHT, II, District Judge.

I. INTRODUCTION

The instant action is Plaintiff's final attempt to remain in his home. On September 15, 2014, Defendants filed a Motion to Dismiss the Second Amended Complaint and Request for Judicial Notice in Support of the Motion. (ECF No. 16.) On September 29, 2014, Plaintiff filed an Opposition to the Motion to Dismiss. (ECF No. 19.) For the reasons discussed below, the Court GRANTS Defendants' Motion to Dismiss. (ECF No. 16.)

II. FACTUAL BACKGROUND

On September 8, 2005, Timothy R. Pannabecker purchased Lot 12 of Tract No. 9690 ("Property") in the City of Upland located in San Bernardino County, California.[1] (ECF No. 16, Ex. 3.) On October 19, 2005, Plaintiff obtained a loan in the principal amount of $560, 000 from Credit Suisse First Boston Financial Corporation ("Credit Suisse"). ( Id., Ex. 4.) The loan was secured by a Note and Deed of Trust. (ECF No. 13, Ex. 1.)

On March 5, 2010, U.S. Bank N.A. filed a Notice of Default against Plaintiff. (ECF No. 16, Ex. 6.) On April 16, 2010, an assignment of the Deed of Trust was executed by Mortgage Electronic Registration Systems ("MERS"), assigning all beneficial interest under the Deed of Trust to U.S. Bank as trustee of CSMC Mortgage-Backed Pass-Through Certificates, Series 2006-2. (ECF No. 13, Ex. 2) On June 10, 2010, a Notice of Sale was recorded. (ECF No. 16, Ex. 7.) On July 2, 2010, a Notice of Rescission was recorded. ( Id., Ex. 8.)

On December 19, 2012, Plaintiff defaulted a second time. ( Id., Ex. 9.) Two Notices of Sale were recorded. ( Id., Exs. 10-11.) The first was recorded on April 8, 2013 and the second, on April 1, 2014. (Id. ) On April 25, 2014, three days after Plaintiff filed suit, the Property was sold at a foreclosure sale to U.S. Bank. ( Id., Ex. 12.)

On April 22, 2014, Plaintiff filed a Complaint asserting fifteen causes of action.[2] (ECF No. 1.) On May 16, 2014, Plaintiff filed his First Amended Complaint adding three causes of action. (ECF No. 11.) On July 3, 2014, Plaintiff filed a Second Amended Complaint removing Internal Revenue Service as a Defendant and adding MERS as a Defendant. (SAC ¶ 20.) The Second Amended Complaint contains nineteen causes of action. (Id. ¶¶ 77-244.) The first eleven causes of action seek declaratory relief. (Id. ¶¶ 77-122.) Plaintiff's remaining causes of action are the following: (12) Cancellation of Instruments; (13) Fraud and Deceit; (14) violation of New York General Business Law § 349 (the "Deceptive Practices Act"); (15) violation of California Business and Professions Code § 17200, et seq.; (16) declaratory relief to determine status of Defendants' causes of action under 28 U.S.C. §§ 2201, 2202; (17) violation of 15 U.S.C. § 1692e; (18) violation of 15 U.S.C. § 1641(g); and (19) Statutorily Defective Foreclosure. (Id. ¶¶ 123-244.)

On September 15, 2014, Defendants U.S. Bank and Wells Fargo Bank, N.A. dba America's Servicing Company ("Wells Fargo") filed a Motion to Dismiss and a Request for Judicial Notice. (ECF No. 16.) Defendants filed the Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6) arguing that Plaintiff failed to state a cause of action upon which relief can be granted. (Mot. 15.) Defendants' arguments include: MERS was authorized to transfer the Note and Deed of Trust, Plaintiff lacks standing to challenge the possible violation of a Pooling and Servicing Agreement, and Plaintiff's case theory-based on Glaski v. Bank of America, 218 Cal.App.4th 1079 (2013)-is misplaced. (Id. at 6.) Defendants further argue that Plaintiff has not stated a cause of action for fraud, unfair competition, unfair debt collection practices, a cause of action under TILA, or wrongful foreclosure. (Id. at 8-13.) Since Plaintiff has not clearly stated a cause of action, Defendants argue, Plaintiff is not entitled to declaratory relief. (Id. at 15.)

On September 29, 2014, Plaintiff filed an Opposition to Defendants' Motion. (ECF No. 19.) Plaintiff explains that he seeks declaratory relief because "the VOID assignments recorded in the San Bernardino County Recorder's Office are Prima Facie evidence that there is indeed a controversy." (Id. at 7.) Plaintiff further argues that he has standing to assert the breach of the Pooling and Servicing Agreement and Prospectus as a third party under New York trust law. (Id. at 7, 10.) Plaintiff also argues that the Notice of Default was never served. (Id. at 13.) This argument is based on misspellings of his name in the Notice of Default. (Id. at 12-13.)

Defendants request that the Court take judicial notice of ten exhibits that document the history of ownership and assignment of the Property. The documents provide a timeline of Plaintiff's purchase of the Property to U.S. Bank's purchase at the foreclosure sale. (ECF No. 16, Ex. 2.)

III. LEGAL STANDARD

A court may dismiss a complaint under Rule 12(b)(6) for lack of a cognizable legal theory or insufficient facts pleaded to support an otherwise cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). To survive a dismissal motion, a complaint need only satisfy the minimal notice pleading requirements of Rule 8(a)(2)-a short and plain statement of the claim. Porter v. Jones, 319 F.3d 483, 494 (9th Cir. 2003). The factual "allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). That is, the complaint must "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

The determination whether a complaint satisfies the plausibility standard is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679. A court is generally limited to the pleadings and must construe all "factual allegations set forth in the complaint... as true and... in the light most favorable" to the plaintiff. Lee v. City of L.A., 250 F.3d 668, 688 (9th Cir. 2001). But a court need not blindly accept conclusory allegations, ...


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