United States District Court, S.D. California
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO
the Court dismissed portions of the first amended complaint,
Plaintiff Un Boon Kim filed a second amended complaint
(“SAC”). Defendant Shellpoint Partners, LLC has
moved to dismiss it, and to strike class allegations.
2004, Kim, along with her late husband Byoung Kug Kim, took
out a home loan for $400, 000, and signed a promissory note.
(SAC, ¶ 10.) The loan was transferred to Bank of
America, and later to Resurgent Mortgage Servicing.
(Id., ¶ 11.) After that, the SAC alleges it was
transferred to Shellpoint. In monthly statements it sent Kim,
Shellpoint allegedly committed several violations of the
Truth in Lending Act (TILA), 15 U.S.C. §§ 1601,
et seq. Specifically, Kim alleges Shellpoint is
liable under § 1640(a), which provides remedies against
creditors who fail to comply with TILA's requirements.
Kim does not raise any claims against Shellpoint in any other
capacity. The SAC brings claims only under TILA, and has
abandoned all other claims. Plaintiff seeks only statutory
damages. The proposed class consists of:
All persons who have a residential mortgage loan agreement
relating to real property located within California and which
is owned by Shellpoint as a creditor, and who, after January
1, 2013, Received monthly billing statements from Shellpoint
that did not state that the interest rate and monthly payment
would change, or the date on which the interest rate would
change, or the amount of any late fee should the regular
payment due not be paid by a date specified.
(SAC, 8:3-9.) Shellpoint has moved to dismiss, and to strike
class action allegations for lack of ascertainability and
typicality. As a fallback position, Shellpoint asks that
claims be limited in scope, because it only came into
existence in March, 2014.
Rule12(b)(6) motion to dismiss tests the sufficiency of the
complaint. Navarro v. Block, 250 F.3d 729, 732 (9th
Cir.2001). Under Fed.R.Civ.P. 8(a)(2), only “a short
and plain statement of the claim showing that the pleader is
entitled to relief, ” is required, in order to
“give the defendant fair notice of what the . . . claim
is and the grounds upon which it rests.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 554-55 (2007).
The well-pleaded facts must do more than permit the Court to
infer “the mere possibility of conduct”; they
must show that the pleader is entitled to relief.
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
determining whether a complaint states a claim, the Court
accepts all allegations of material fact in the complaint as
true and construes them in the light most favorable to the
non-moving party. Cedars-Sinai Medical Center v. National
League of Postmasters of U.S., 497 F.3d 972, 975 (9th
Cir. 2007) (citation omitted). But the Court is “not
required to accept as true conclusory allegations which are
contradicted by documents referred to in the complaint,
” and does “not . . . necessarily assume the
truth of legal conclusions merely because they are cast in
the form of factual allegations.” Warren v. Fox
Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th
Cir.2003) (citations and quotation marks omitted).
pleading stage, the Court may consider not only the complaint
itself, but also documents it refers to, whose authenticity
is not questioned, and matters judicially noticed. Zucco
Partners LLC v. Digimarc Corp., 552 F.3d 981, 990 (9th
Cir. 2009). The Court also need not accept as true
allegations that contradict properly subject to judicial
notice, or incorporated into the complaint. Gonzalez v.
Planned Parenthood of Los Angeles, 759 F.3d 1112, 1115
(9th Cir. 2014).
Fed.R.Civ.P. 12(f), the Court can strike from a pleading any
"redundant, immaterial, impertinent, or scandalous
matter, " either sua sponte or in response to a motion.
In general, the appropriateness of proceeding as a class
action is not tested at the pleading stage, but there is no
rule preventing this. As the Supreme Court has explained,
most of the time determining whether a case can proceed as a
class action involves deciding factual and legal questions
that are closely tied up with the cause of action itself.
Gen'l Tel. Co. of Southwest v. Falcon, 457 U.S.
147, 160 (1982). That being said, "[s]ometimes the
issues are plain enough from the pleadings to determine
whether the interests of the absent parties are fairly
encompassed within the named plaintiff's claim."
Id. See also Wal-Mart Stores, Inc. v.
Dukes, 564 U.S. 338, 350 (2011) (construing
Falcon as holding that it may sometimes be necessary
to look beyond the pleadings to determine whether class
treatment was appropriate). When it is clear from the
complaint that class actions cannot be maintained, the Court
may grant a motion to strike them. Sanders v. Apple,
Inc., 672 F.Supp.2d 978, 990-91 (N.D. Cal. 2009).
Fed.R.Evid. 201(c)(2), the Court must take notice if a party
requests it and supplies the Court with the necessary
information. Shellpoint argues that it is not Kim's
creditor,  and asks the Court to take judicial notice
of documents that it says support that contention. The
documents are relevant because, if Shellpoint is correct and
the creditor is actually Bank of New York Mellon, then Kim
has no TILA claim against Shellpoint and the case must be
dismissed. See 15 U.S.C. § 1641(f)(1) (servicers of
loans are not liable under TILA unless they are also the
owners of the loans). See also Lisnawati v. Bank of N.Y.
Mellon, 2009 WL 1468793 at *2 (N.D. Cal., May 26, 2009)
(claims under TILA against / / / escrow holder and trustee
were subject to dismissal, because it was not a
“creditor” within the meaning of TILA).
Exhibit A: A note dated March 17, 2004.
Exhibit B: The executed deed of trust, recorded on March 25,
Exhibit C: An assignment dated March 3, 2010 and recorded
April 5, 2010 with the San Diego County ...