United States District Court, N.D. California
ORDER GRANTING MOTION TO DISMISS RE: DKT. NO.
M. RYU UNITED STATES MAGISTRATE JUDGE.
Nationstar Mortgage LLC ("Defendant" or
"Nationstar") moves the court to dismiss the
complaint by Plaintiffs Muhamed and Sophia Almutarreb
("Plaintiffs") pursuant to Federal Rule of Civil
Procedure 12(b)(6). Motion to Dismiss [Docket No. 16]. The
court held a hearing on the motion on June 9, 2016. For the
reasons stated below, Defendant's motion to dismiss is
following facts are based on the complaint, the exhibits
attached to the complaint, and judicially noticeable
documents. On December 23, 2004, Plaintiff Muhamed Almutarreb
borrowed $280, 000 from Home Loan Corporation dba Expanded
Mortgage Credit ("Home Loan"). Complaint [Docket
No. 1] ¶¶ 9-10; Ex. B at 2. As security for the
loan, Muhamed and Sophia Almutarreb signed a Deed of Trust
for the property located at 98 Villa Drive, San Pablo,
California 94806 (the "Villa Drive Property").
Compl., Ex. B (December 23, 2004 Deed of Trust). Plaintiffs
allege that Home Loan engaged in unspecified conduct
regarding the loan that "amounted to material
violations" of the Truth in Lending Act
("TILA"), 15 U.S.C. § 1635. Compl. ¶ 14.
In August 2013, Nationstar became the beneficiary under the
Deed of Trust. Request for Judicial Notice ("RJN")
[Docket No. 17], Ex. G (Assignment of Deed of Trust).
8, 2015, Plaintiffs sent correspondence to Home Loan and
Nationstar, which Plaintiffs contend were rescission letters
pursuant to TILA. Compl. ¶¶ 15-16, Exs. C & D. Both
letters stated: "I/WE HEREBY EXERCISE MY/OUR RIGHT/S TO
RESCIND THE LOAN TRANSACTION IN ITS ENTIRETY. THE MORTGAGE IS
NOW EXTINGUISHED AND YOUR RIGHTS UNDER THE TRUSTEE DEED HAVE
BEEN TERMINATED. PLEASE GOVERN YOURSELVES ACCORDINGLY!"
Compl., Exs. C & D. Plaintiffs contend that the "Deed of
Trust. . .is a void instrument" because Nationstar
"failed to respond within 20 days from the date of
Plaintiff's [sic] mailing of the letters and all
Defendants have failed to file a complaint for Declaratory
Relief to attempt to prove that the Plaintiff [sic] did not
have the right to rescind the loan." Compl. ¶¶
filed the instant action seeking quiet title and declaratory
relief that the Deed of Trust is void.
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) tests the legal sufficiency of the claims alleged in
the complaint. Ileto v. Glock Inc., 349 F.3d 1191,
1199-200 (9th Cir. 2003). When reviewing a motion to dismiss
for failure to state a claim, the court must "accept as
true all of the factual allegations contained in the
complaint, " Erickson v. Pardus, 551 U.S. 89,
94 (2007) (per curiam) (citation omitted), and may dismiss
the case "only where there is no cognizable legal theory
or an absence of sufficient facts alleged to support a
cognizable legal theory." Shroyer v. New Cingular
Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir.
2010) (citation and quotation marks omitted).
complaint presents a cognizable legal theory, the court may
grant the motion if the complaint lacks "sufficient
factual matter to state a facially plausible claim to
relief." Id. (citing Ashcroft v.
Iqbal, 556 U.S. 662 (2009)). A claim has facial
plausibility when a "plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged."
Iqbal, 556 U.S. at 678 (citation omitted).
claim may be dismissed under Rule 12(b)(6) on the ground that
it is barred by the applicable statute of limitations only
when ‘the running of the statute is apparent on the
face of the complaint."' Von Saher v. Norton
Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th
Cir. 2010) (quoting Huynh v. Chase Manhattan Bank,
465 F.3d 992, 997 (9th Cir. 2006)). For purposes of Rule
12(b)(6) review, the court reviews documents incorporated
into the complaint, as well as judicially noticeable
material. Tellabs, Inc. v. Makor Issues & Rights,
Ltd., 551 U.S. 308, 322 (2007) ("[C]ourts must
consider the complaint in its entirety, as well as other
sources courts ordinarily examine when ruling on Rule
12(b)(6) motions to dismiss, in particular, documents
incorporated into the complaint by reference, and matters of
which a court may take judicial notice."); Knievel
v. ESPN, 393 F.3d 1068, 1076-77 (9th Cir. 2005)
(incorporation by reference); Skilstaf, Inc. v. CVS
Caremark Corp., 669 F.3d 1006, 1016 n.9 (9th Cir. 2012)
court may take judicial notice of ‘matters of public
record, '" Lee v. City of Los Angeles, 250
F.3d 668, 689 (9th Cir. 2001) (citing Mack v. S. Bay Beer
Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986)), and may
also consider "documents whose contents are alleged in a
complaint and whose authenticity no party questions, but
which are not physically attached to the pleading"
without converting a motion to dismiss under Rule 12(b)(6)
into a motion for summary judgment. Branch v.
Tunnell, 14 F.3d 449, 454 (9th Cir. 1994), overruled
on other grounds by Galbraith v. Cty. of Santa Clara,
307 F.3d 1119 (9th Cir. 2002). The court need not accept as
true allegations that contradict facts which may be
judicially noticed. See Mullis v. United States Bankr.
Court, 828 F.2d 1385, 1388 (9th Cir. 1987).
REQUEST FOR JUDICIAL NOTICE
court first considers Nationstar's unopposed request for
judicial notice. The court takes judicial notice of the
Assignment of the Deed of Trust. RJN, Ex. G. Under Federal
Rule of Evidence 201(b), publicly-recorded real estate
instruments and notices, including deeds of trust and default
and foreclosure notices, are the proper subject of judicial
notice, unless their authenticity is subject to reasonable
dispute. Disabled Rights Action Comm. v. Las Vegas
Events, Inc., 375 F.3d 861, 866 n.1 (9th Cir. 2004);
Petrovich v. Ocwen Loan Servicing, LLC, No.
15-CV-00033-EMC, 2016 WL 555959, at *3 (N.D. Cal. Feb. 12,
2016) (taking judicial notice of assignment of deed of
court declines to take judicial notice of Exhibits A through
The court does not rely on those exhibits in reaching its