United States District Court, N.D. California, San Jose Division
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS Re:
Dkt. No. 26
J. DAVILA, United States District Judge
Ralph Neal (“Plaintiff”) alleges in this action
that Defendants Select Portfolio Servicing, Inc.
(“SPS”) and Bank of America, N.A. (collectively
“Defendants”) have improperly sought to foreclose
on residential property.
jurisdiction arises pursuant to 28 U.S.C. § 1332.
Presently before the court is Defendants' Motion to
Dismiss the First Amended Complaint (“FAC”)
pursuant to Federal Rule of Civil Procedure 12(b)(6). Dkt.
No. 26. Plaintiff opposes the motion. Having carefully
reviewed the relevant papers submitted by the parties, the
court has concluded that none of Plaintiff's causes of
action withstand scrutiny. Thus, Defendants' Motion to
Dismiss will be granted for the reasons explained below.
is the trustor of a Deed of Trust (“DOT”)
recorded on or about May 25, 2007, against residential
property located on Calco Creek Drive in San Jose (the
“Property”) pursuant to the refinance of a loan.
FAC, Dkt. No. 25, at ¶ 1. The original lender on the DOT
was Washington Mutual, FA, and the original trustee was
California Reconveyance Company (“CRC”).
Id. at ¶ 11.
November 4, 2010, CRC recorded an Assignment noting a
transfer of the DOT from JP Morgan Chase Bank to “Bank
of America, National Association successor by merger to
LaSalle Bank NA as trustee for WaMu Mortgage Pass-Through
Certificates Series 2007-OA6 Trust.” Req. for Judicial
Notice, Dkt. No. 27, at Ex. B. That same day, CRC also recorded
a Notice of Default providing that Plaintiff owed past due
payments of $70, 383.83. Id. at Ex. C. CRC
thereafter recorded a Notice of Trustee's Sale on
February 7, 2011. Id. at Ex. D.
the balance of the allegations in the FAC are diffuse,
Plaintiff generally alleges the DOT was subsequently
transferred and assigned and that “due to the chain of
assignments, it is now unknown and doubtful who is the
current lender/beneficiary/assignee with legal authority and
standing regarding the mortgage” on the San Jose
property. Id. at ¶ 12. He discovered
“several material inconsistencies and
inaccuracies” with the total loan amount, the crediting
of payments, and the imposition of “exorbitant fees,
” and “undisclosed and hidden charges.”
Id. at ¶ 21. Plaintiff also discovered
“document irregularities” and other problems with
the foreclosure process. Id. at ¶ 22.
initiated this action on July 10, 2015, and all causes of
action in his original complaint were dismissed, some with
and some without leave to amend. Dkt. No. 22. Plaintiff filed
the FAC on January 25, 2016, and now asserts the following
causes of action: (1) quiet title, (2) Declaratory Relief,
(3) violation of the California Homeowners Bill of Rights
(“CHBOR”), (4) Promissory Estoppel, (5) unjust
enrichment, (6) accounting, and (7) violation of the Unfair
Competition Law (“UCL”), California Business and
Professions Code § 17200 et seq. This motion followed
Federal Rule of Civil Procedure 12(b)(6)
Rule of Civil Procedure 8(a) requires a plaintiff to plead
each claim with sufficient specificity to “give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (internal quotations
omitted). The factual allegations in the complaint
“must be enough to raise a right to relief above the
speculative level” such that the claim “is
plausible on its face.” Id. at 556-57. A
complaint that falls short of the Rule 8(a) standard may be
dismissed if it fails to state a claim upon which relief can
be granted. Fed.R.Civ.P. 12(b)(6). “Dismissal under
Rule 12(b)(6) is appropriate only where the complaint lacks a
cognizable legal theory or sufficient facts to support a
cognizable legal theory.” Mendiondo v. Centinela
Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008).
deciding whether to grant a motion to dismiss, the court must
generally accept as true all “well-pleaded factual
allegations.” Ashcroft v. Iqbal, 556 U.S. 662,
664 (2009). The court must also construe the alleged facts in
the light most favorable to the plaintiff. See Retail
Prop. Trust v. United Bhd. of Carpenters & Joiners of
Am., 768 F.3d 938, 945 (9th Cir. 2014) (providing the
court must “draw all reasonable inferences in favor of
the nonmoving party” for a Rule 12(b)(6) motion).
However, “courts are not bound to accept as true a
legal conclusion couched as a factual allegation.”
Iqbal, 556 U.S. at 678.
the court usually does not consider any material beyond the
pleadings for a Rule 12(b)(6) analysis. Hal Roach
Studios, Inc. v. Richard Feiner & Co., 896 F.2d
1542, 1555 n. 19 (9th Cir. 1990). Exceptions to this rule
include material submitted as part of the complaint or relied
upon in the complaint, and material subject to judicial
notice. See Lee v. City of Los Angeles, 250 F.3d
668, 688-69 (9th Cir. 2001).
Pro Se Pleadings
as here, the pleading at issue is filed by a plaintiff
proceeding pro se, it must be construed liberally.
Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000).
In doing so, the court “need not give a plaintiff the
benefit of every conceivable doubt” but “is
required only to draw every reasonable or warranted factual
inference in the plaintiff's favor.” McKinney
v. De Bord, 507 F.2d 501, 504 (9th Cir. 1974). The court
“should use common sense in interpreting the frequently
diffuse pleadings of pro se complainants.” Id.
A pro se complaint should not be dismissed unless the court
finds it “beyond doubt that the plaintiff can prove no
set of facts in support of his claim which would entitle him
to relief.” Haines v. Kerner, 404 U.S. 519,
to quiet title must describe five elements: “(1) a
legal description of the property and its street address or
common designation, (2) the title of the plaintiff and the
basis of the title, (3) the adverse claims to the title of
the plaintiff, (4) the date as of which the determination is
sought and (5) a prayer for the determination of the title of
the plaintiff against the adverse claims.” Janolkar
v. Bank of Am., N.A., No. 5:12-cv-03693 EJD, 2012 U.S.
Dist. LEXIS 174756, at *9, 2012 WL 6115629 (N.D. Cal. Dec.
10, 2012) (citing Cal. Civ. Proc. Code § 761.020).
argue the allegations in the FAC fail to establish the second
element of a quiet title cause of action, and the court
previously dismissed the claim on that basis. The court
observed that a basic requirement of the claim “is an
allegation that plaintiffs ‘are the rightful owners of
the property, i.e., that they have satisfied their
obligations under the Deed of Trust.'” Santos
v. Countrywide Home Loans, No. Civ. 2:09-02642, 2009
U.S. Dist. LEXIS 103453, at *10, 2009 WL 3756337 (E.D. Cal.
Nov.6, 2009) (quoting Kelley v. Mortg. Elec. Reg. Sys.,
Inc., 642 F.Supp.2d 1048, 1057 (N.D. Cal. 2009)).
Indeed, “[t]he cloud upon title persists until the debt
is paid, ” and the borrower “cannot clear his
title without satisfying his debt.” Aguilar v.
Bocci, 39 Cal.App.3d 475, 477-78 (1974). Thus,
“[u]nder California law, a borrower may not assert an
action to quiet title against a mortgagee without first
paying the outstanding debt on the property.”
Williams v. Bank of America Nat'l Assoc., No.
15-CV-00792-LHK, 2015 U.S. Dist. LEXIS 148337, at *22, 2015
WL 6602403 (N.D. Cal. Oct. 30, 2015). However, “[f]ull
tender of the indebtedness is not required if the borrower
attacks the validity of the underlying debt.”
Lueras v. BAC Home Loans Servicing, LP, 221
Cal.App.4th 49, 87 (2013).
Plaintiff is not challenging the validity of the underlying
debt; to the contrary, he specifically recognizes the DOT in
the FAC and none of his causes of action seek to circumvent
any payment obligations under its terms. FAC, at ¶¶
11, 24. Plaintiff also relies on the existence of the DOT as
a basis to pursue the quite title claim. To that end,
Plaintiff suggests a “legal and equitable
interest” in the Property based on his position as
trustor. Id. at ¶ 24. That sort of interest is
not enough, though, in light of the FAC's particular
allegations since they do not provide a plausible basis to
arguments in opposition do not alter the analysis. First,
Plaintiff questions Defendants' ability to foreclose due
to a purported defect in the transfer of assets from
Washington Mutual to JP Morgan Chase Bank upon the latter
bank's assumption of the former. Specifically, Plaintiff
alleges that JP Morgan Chase “has no legal standing to
execute the assignment to Bank of America National
Association, as there was no prior chain of assignment(s),
recorded or unrecorded, to JP Morgan Chase in the first place
from the original lender Washington Mutual, or its assignees,
nor any other legal documentation to prove such
assignment(s).” FAC, at ¶ 29. This protestation
has no bearing on whether Plaintiff has alleged facts in the
FAC entitling him to proceed on a claim for quiet
title, as opposed to one for wrongful
foreclosure, because the elements of quiet title require
him to plausibly and affirmatively identify a basis upon
which he could be determined the rightful owner of the
Property.Gerhard v. Stephens, 68 Cal. 2d
864, 918 (1968) (holding that the quiet ...