United States District Court, N.D. California
EFREN T. ROMERO and JANETH M. ROMERO, Plaintiffs,
U.S. BANK, N.A., et al., Defendants.
ORDER GRANTING DEFENDANT U.S. BANK NATIONAL
ASSOCIATION'S MOTION TO DISMISS; GRANTING OLD
REPUBLIC'S MOTION TO DISMISS; AFFORDING PLAINTIFF LEAVE
TO AMEND RE: DKT. NOS. 11, 21
M. CHESNEY United States District Judge
the Court are two motions: (1) defendant U.S. Bank National
Association's ("U.S. Bank") "Motion to
Dismiss Complaint for Failure to State a Claim, " filed
May 4, 2016; and (2) defendant Old Republic Default
Management Services' ("Old Republic")
"Motion to Dismiss Complaint, " filed June 13,
2016. Plaintiff Janeth M. Romero has filed opposition to each
motion, to which each defendant has replied. Having read and
considered the papers filed in support of and in opposition
to the motion, the Court rules as follows.
2004, plaintiff and Efren T. Romero purchased a residence on
Call Avenue in Hayward, California. (See Compl. at
2:6-8; U.S. Bank's Req. for Judicial Notice. Ex.
A.)Plaintiff alleges that, to finance the
purchase, she and Efren T. Romero "executed a promissory
note and Deed of Trust" that names Downey Savings &
Loan Association, F.A. ("Downey") as
"Lender." (See Compl. ¶ 8.) Plaintiff
alleges that, at some later point, Downey "failed"
and became an "incapacitated entity" (see
Compl. ¶¶ 75, 102), and that the "FDIC"
then became the "receiver for Downey" (see
Compl. ¶¶ 101-02). Plaintiff further alleges that,
on November 21, 2008, the FDIC entered into a "Purchase
& Assumption Agreement" with U.S. Bank.
(See Compl. ¶ 101.)
17, 2011, U.S. Bank recorded in Alameda County, California, a
"Blanket Assignment of Deed of Trust, " in which
the "Assignor, " identified therein as
"Federal Deposit Insurance Corporation as Receiver of
Downey Savings and Loan Association, F.A. by U.S. Bank
National Association Under Limited Power of Attorney Dated
September 29, 2010 Recorded September 29, 2010 in Dallas
County, Texas in Document Number 201000250121, " states
it assigned to U.S. Bank its interest in the Deed of Trust,
and that such assignment is effective as of November 21,
2008. (See Compl. Ex. 2.) On July 2, 2014, Old
Republic recorded in Alameda County a "Substitution of
Trustee, " in which U.S. Bank states it has substituted
Old Republic in place of the prior trustee. (See
Compl. Ex. 3.) Also, on July 2, 2014, Old Republic recorded
in Alameda County a "Notice of Default and Election to
Sell Under Deed of Trust, " in which Old Republic states
that, as of July 9, 2014, the amount "past due" is
$34, 737.82. (See Compl. Ex. 4.)
alleges the assignment of the Deed of Trust to U.S. Bank is
"void" for the asserted reason that the "loan
contract was not received by FDIC as Receiver for Downey . .
. prior to the recorded blanket assignment."
(See Compl. ¶¶ 34, 36.) Additionally,
plaintiff alleges, the assignment contains "false
representations" (see Compl. ¶ 71), and
U.S. Bank "filed" the assignment knowing it to be
"false" (see Compl. ¶ 45).
on the above-referenced allegations, plaintiff asserts five
causes of action, titled, respectively, "Intentional
Misrepresentation, " "Intentional Interference With
Contractual Relations, " "Violation of California
Homeowner Bill of Rights, " "Unfair Business
Practices, " and "Wrongful Foreclosure."
under Rule 12(b)(6) of the Federal Rules of Civil Procedure
“can be based on the lack of a cognizable legal theory
or the absence of sufficient facts alleged under a cognizable
legal theory.” See Balistreri v. Pacifica Police
Dep't, 901 F.2d 696, 699 (9th Cir. 1990). Rule
8(a)(2), however, “requires only ‘a short and
plain statement of the claim showing that the pleader is
entitled to relief.’” See Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (quoting
Fed.R.Civ.P. 8(a)(2)). Consequently, “a complaint
attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations.” See id.
Nonetheless, “a plaintiff’s obligation to provide
the grounds of his entitlement to relief requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” See
id. (internal quotation, citation, and alteration
analyzing a motion to dismiss, a district court must accept
as true all material allegations in the complaint, and
construe them in the light most favorable to the nonmoving
party. See NL Indus., Inc. v. Kaplan, 792 F.2d 896,
898 (9th Cir. 1986). “To survive a motion to dismiss, a
complaint must contain sufficient factual material, accepted
as true, to ‘state a claim to relief that is plausible
on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at
570). “Factual allegations must be enough to raise a
right to relief above the speculative level[.]”
Twombly, 550 U.S. at 555. Courts “are not
bound to accept as true a legal conclusion couched as a
factual allegation.” See Iqbal, 556 U.S. at
678 (internal quotation and citation omitted).
contend the complaint is subject to dismissal in its
Causes of Action Asserted on Behalf of Efren T.
addition to Janeth M. Romero, the complaint assertedly is
brought on behalf of Efren T. Romero, as his name appears in
the caption, as well as in the body of the complaint
(see Compl. at 1:25), and the complaint purportedly
is signed by him (see Compl. at 32). As U.S. Bank
has demonstrated, however, Efren T. Romero died in 2009.
(See U.S. Bank's Req. for Judicial Notice Ex.
U.S. Bank argues that the claims brought on behalf of such
decedent are subject to dismissal for the reason that, as
U.S. Bank interprets the complaint, the conduct on which the
claims are based occurred after his death.
opposition to each motion, plaintiff states the inclusion of
Efren T. Romero in the complaint was an error, and has filed
a "Notice of Errata" to indicate that Efren T.
Romero is not a plaintiff. Under such circumstances, the
Court, without further addressing the date on which the
claims accrued, will dismiss the complaint without leave to
amend to the extent it is brought on behalf of Efren T.
Court next considers in turn each cause of action alleged on
behalf of Janeth M. Romero.
Causes of Action on Behalf ...