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Jose v. Select Portfolio Servicing, Inc.

United States District Court, S.D. California

May 2, 2017

FOLUKE JOSE, Plaintiff,
v.
SELECT PORTFOLIO SERVICING, INC., Defendant.

          ORDER GRANTING DEFENDANT'S MOTION TO DISMISS [DOC. NO. 20]

          Hon. Michael M. Anello United States District Judge.

         On December 8, 2015, Plaintiff Foluke Jose filed a complaint in the Superior Court of California, County of San Diego against Defendant Select Portfolio Servicing, Inc. alleging various causes of action arising out of Plaintiff's default on a loan. On January 15, 2016, Defendant removed the action to this Court. Defendant now moves to dismiss Plaintiff's First Amended Complaint (FAC) pursuant to Federal Rule of Civil Procedure 12(b)(6). See Doc. Nos. 15, 20. The Court found the matter suitable for determination on the papers and without oral argument pursuant to Civil Local Rule 7.1(d)(1). For the reasons set forth below, the Court GRANTS Defendant's motion to dismiss, Doc. No. 20.

         Background[1]

         Plaintiff alleges she purchased a home in 2003. In 2005, Plaintiff states that she refinanced the property with a loan from Argent Mortgage Company, LLC. She alleges, “[o]n information and belief, her loan was then bundled in Pass-Through Certificates, which was and is a federal procedure.” Doc. No. 14, FAC ¶ 8. “The resulting loan pool is apparently an asset of a trust, the trustee of which is apparently Wells Fargo Bank.” FAC ¶ 8. Plaintiff alleges the loan is thus “federally related” and “subject to [] federal statutes, regulations and federal public policy.” FAC ¶ 11. Defendant is currently the mortgage servicing company for the loan. FAC ¶ 2. Plaintiff defaulted on the loan, making her last payment on August 11, 2014. FAC ¶ 26. Defendant filed a notice of default on August 12, 2015. FAC ¶ 27.

         On December 8, 2015, Plaintiff filed this action alleging causes of action for negligence, intentional infliction of emotional distress, civil conspiracy, bad faith breach of contract, and seeking equitable remedies such as quiet title, and declaratory and injunctive relief. Defendant removed the action to this Court and subsequently moved to dismiss Plaintiff's original Complaint. The Court granted Defendant's motion to dismiss the Complaint, and allowed Plaintiff leave to amend. The FAC alleges causes of action for negligence and intentional infliction of emotional distress, and seeks equitable relief such as quiet title, and declaratory and injunctive relief.

         Legal Standard

         A Rule 12(b)(6) motion to dismiss tests the 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). However, plaintiffs must also plead “enough facts to state a claim to relief that is plausible on its face.” Fed.R.Civ.P. 12(b)(6); 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 allegations of underlying facts sufficient 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).

         In 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). Similarly, “conclusory allegations of law and unwarranted inferences are not sufficient to defeat a motion to dismiss.” Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998).

         In determining the propriety of a Rule 12(b)(6) dismissal, courts generally may not look beyond the complaint for additional facts. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). “A court may, however, consider certain materials-documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice-without converting the motion to dismiss into a motion for summary judgment.” Id.; see also Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). Where dismissal is appropriate, a court should grant leave to amend unless the plaintiff could not possibly cure the defects in the pleading. Knappenberger v. City of Phoenix, 566 F.3d 936, 942 (9th Cir. 2009).

         Discussion

         A. Requests for Judicial Notice

         Generally, a district court's review of a 12(b)(6) motion to dismiss is “limited to the complaint.” Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) overruled on other grounds by Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119, 1125-26 (9th Cir. 2002) (quoting Cervantes v. City of San Diego, 5 F.3d 1273, 1274 (9th Cir. 1993)). Consideration of extrinsic evidence ordinarily converts a 12(b)(6) motion to dismiss into a summary judgment motion. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). However, “a court may consider ‘material which is properly submitted as part of the complaint.'” Id. That includes documents that are physically attached to the complaint, and those that are not, but whose authenticity is not contested and where the plaintiff's complaint necessarily relies on them. Id. (citing Parrino v. FHP, Inc., 146 F.3d 699, 705-06 (9th Cir. 1998) (internal quotations omitted)). Second, a court may take judicial notice of matters of public record. Id. at 688-89 (citing Mack v. South Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986) (internal quotations omitted).

         Defendant requests judicial notice of:

a. A copy of the Deed of Trust recorded on April 25, 2005 (Doc. No. ...

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