United States District Court, S.D. California
LINDA B. BUSTOS, Plaintiff,
CHASE BANK N.A., Defendant.
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
THIRD AMENDED COMPLAINT (DOC. NO. 28)
ANTHONY J. BATTAGLIA UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant JPMorgan Chase Bank,
N.A.'s (“JPMorgan”) motion to dismiss
Plaintiff Linda B. Bustos's (“Bustos”) third
amended complaint. (Doc. No. 28.) The Court finds the matter
suitable for disposition on the papers, without oral
argument, pursuant to Local Civil Rule 7.1.d.1. Accordingly,
the hearing date currently set for May 4, 2017, is
hereby VACATED. For the reasons set forth below, the Court
GRANTS JPMorgan's motion and DISMISSES this case WITHOUT
LEAVE TO AMEND.
Court assumes this dispute arises from JPMorgan's
foreclosure or attempted foreclosure of Bustos's
residence. The Court makes this assumption based on the
sparse allegations contained in prior iterations of the
complaint because the TAC contains only two factual
allegations: (1) JPMorgan “did not follow the strict
rules of The Dodd Frank Act”; and (2) Bustos
“never rejected any offer from” JPMorgan. (Doc.
No. 26 at 1-2.) Bustos seeks $75, 000 in damages for
“the action of [JPMorgan, ] which causes mental,
physical, and emotional stress, sleepless nights with the
idea of the possibility of her losing her home.”
(Id. at 2-3.)
instituted this lawsuit on April 7, 2016, by filing the
original complaint. (Doc. No. 1.) Because Bustos sought leave
to proceed in forma pauperis, (Doc. No. 2), the
Court screened the complaint pursuant to 28 U.S.C. §
1915 and found it failed to state a claim, (Doc. No. 3).
Thus, the Court dismissed the complaint with leave to amend
and denied as moot Bustos's IFP application. (Doc. No.
3.) Bustos was given sixty days from that order's
issuance to file an amended complaint. (Id. at 4.)
16, 2016, Bustos paid the filing fee. (Doc. No. 4.) She then
apparently served an amended complaint on JPMorgan on May 31,
2016, but did not file it with the Court. (Doc. No. 7-2
¶ 4.) JPMorgan successfully moved to dismiss the unfiled
amended complaint on June 21, 2016. (Doc. Nos. 7, 12.)
filed the second amended complaint on August 11, 2016. (Doc.
No. 13.) JPMorgan again successfully moved to dismiss the
complaint. (Doc. Nos. 15, 16, 22.) The Court required Bustos
to file a third amended complaint no later than December 2,
2016. (Doc. No. 22 at 8.) When that deadline came and went
without an amendment filed, the Court sua sponte
extended the deadline to February 3, 2017. (Doc. No. 25.)
Bustos filed the now operative TAC on January 12, 2017. (Doc.
No. 26.) On January 20, 2017, JPMorgan filed the instant
motion to dismiss. (Doc. No. 28.) The motion has been fully
briefed. (Doc. Nos. 32, 33.) This order follows.
12(b)(6) motion to dismiss tests the legal sufficiency of the
complaint. Navarro v. Block, 250 F.3d 729, 732 (9th
Cir. 2001). A pleading must contain “a short and plain
statement of the claim showing that the pleader is entitled
to relief . . . .” Fed.R.Civ.P. 8(a)(2). Plaintiffs
must also plead, however, “enough facts to state a
claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). The plausibility standard thus demands more than a
formulaic recitation of the elements of a cause of action or
naked assertions devoid of further factual enhancement.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Instead, the complaint “must contain sufficient
allegations of underlying facts to give fair notice and to
enable the opposing party to defend itself
effectively.” Starr v. Baca, 652 F.3d 1202,
1216 (9th Cir. 2011).
reviewing a motion to dismiss under Rule 12(b)(6), courts
must assume the truth of all factual allegations and must
construe them in the light most favorable to the nonmoving
party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336,
337-38 (9th Cir. 1996). The court need not take legal
conclusions as true “merely because they are cast in
the form of factual allegations.” Roberts v.
Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987) (quoting
W. Mining Council v. Watt, 643 F.2d 618, 624 (9th
Cir. 1981)). Similarly, “conclusory allegations of law
and unwarranted inferences are not sufficient to defeat a
motion to dismiss.” Pareto v. Fed. Deposit Ins.
Corp., 139 F.3d 696, 699 (9th Cir. 1998).
dismissal is appropriate, a court should freely grant leave
to amend. Knappenberger v. City of Phoenix, 566 F.3d
936, 942 (9th Cir. 2009). However, where it is
“absolutely clear that the deficiencies of the
complaint could not be cured by amendment, ” the action
must be dismissed without leave to amend. Broughton v.
Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980) (per
again asks the Court to dismiss Bustos's complaint with
prejudice. JPMorgan predicates its request on the fact that
the complaint has devolved to the point of incoherence,
containing absolutely no factual allegations to provide it or
the Court notice of what Bustos's claims and injuries
are. This time, the Court agrees that dismissal without leave
to amend is appropriate.
last order dismissing the SAC for failing to state a claim,
the Court determined Bustos sufficiently pleaded that she
sent a loan modification package to JPMorgan and that
JPMorgan failed to respond within five days of receipt. (Doc.
No. 22 at 6-7.) However, the Court noted one deficiency that
was fatal to her 12 C.F.R. § 1024.41(b) claim: Bustos
failed to allege when a foreclosure sale was scheduled.
(Id. at 7.) The Court stated that §
1024.41(b)(2)(i) required Bustos to have sent her loan
modification package to JPMorgan “45 days or more
before a foreclosure sale[.]” 12 C.F.R. §
1024.41(b)(2)(i). Accordingly, failing to include when the
foreclosure sale was scheduled was “fatal to the
SAC's sufficiency.” (Doc. No. 22 at 7.) See
also Thomas v. Wells Fargo Bank, N.A., No.
3:15-CV-02344-GPC-JMA, 2016 WL 1701878, at *5 (S.D. Cal. Apr.
28, 2016) (“By [its] plain terms, § 1024.41(b)
applies where a servicer receives a loss mitigation
application ‘45 days or more before a foreclosure