United States District Court, E.D. California
ROBERT E. HALL and JANET W. HALL, Plaintiffs,
THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK AS TRUSTEE FOR CWALT, INC., ALTERNATIVE LOAN TRUST 2006-7CB, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-7B; CWALT, INC., ALTERNATIVE LOAN TRUST 2006-7CB, MORTGAGE PASS THROUGH CERTIFICATES, SERIES ROES 1-10 AND DOES 1 - 10, inclusive, representing a class of unknown persons who claim or have the right to claim an interest in certain real property located in Sacramento, California, Defendants.
DEBORAH BARNES, UNITED STATES MAGISTRATE JUDGE
action came before the court on May 19, 2017, for hearing of
defendant's motion to dismiss pursuant to Rule 12(b)(6)
of the Federal Rules of Civil Procedure. Attorney Ryan
Davies appeared telephonically on behalf of defendant Bank of
New York Mellon. No appearance was made by, or on behalf of,
plaintiff Robert Hall or plaintiff Janet Hall.
Defendant's Motion to Dismiss
purpose of a motion to dismiss pursuant to Rule 12(b)(6) is
to test the legal sufficiency of the complaint. N. Star
Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581
(9th Cir. 1983). “Dismissal can be based on the lack of
a cognizable legal theory or the absence of sufficient facts
alleged under a cognizable legal theory.”
Balistreri v. Pacifica Police Dep't, 901 F.2d
696, 699 (9th Cir. 1990). A plaintiff is required to allege
“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). “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
determining whether a complaint states a claim on which
relief may be granted, the court accepts as true the
allegations in the complaint and construes the allegations in
the light most favorable to the plaintiff. Hishon v. King
& Spalding, 467 U.S. 69, 73 (1984); Love v.
United States, 915 F.2d 1242, 1245 (9th Cir. 1989). In
general, pro se complaints are held to less stringent
standards than formal pleadings drafted by lawyers.
Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
However, the court need not assume the truth of legal
conclusions cast in the form of factual allegations.
United States ex rel. Chunie v. Ringrose, 788 F.2d
638, 643 n.2 (9th Cir. 1986).
minimum requirements for a civil complaint in federal court
are as follows:
A pleading which sets forth a claim for relief . . . shall
contain (1) a short and plain statement of the grounds upon
which the court's jurisdiction depends . . ., (2) a short
and plain statement of the claim showing that the pleader is
entitled to relief, and (3) a demand for judgment for the
relief the pleader seeks.
Fed. R. Civ. P. 8(a). While Rule 8(a) does not require
detailed factual allegations, “it demands more than an
unadorned, the defendant-unlawfully-harmed-me
accusation.” Iqbal, 556 U.S. at 678. A
pleading is insufficient if it offers mere “labels and
conclusions” or “a formulaic recitation of the
elements of a cause of action.” Twombly, 550
U.S. at 555; see also Iqbal, 556 U.S. at 676
(“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.”). Moreover, it is inappropriate to assume
that the plaintiff “can prove facts which it has not
alleged or that the defendants have violated the . . . laws
in ways that have not been alleged.” Associated
Gen. Contractors of Cal., Inc. v. Cal. State Council of
Carpenters, 459 U.S. 519, 526 (1983).
plaintiffs' amended complaint fails to contain a short
and plain statement of a claim showing that they are entitled
to relief. In this regard, plaintiffs' amended complaint
consists of 114 pages of vague and conclusory allegations.
Although the Federal Rules of Civil Procedure adopt a
flexible pleading policy, a complaint must give the defendant
fair notice of the plaintiff's claims and must allege
facts that state the elements of each claim plainly and
succinctly. Fed.R.Civ.P. 8(a)(2); Jones v. Community
Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984).
“A pleading that offers ‘labels and
conclusions' or ‘a formulaic recitation of the
elements of cause of action will not do.' Nor does a
complaint suffice if it tenders ‘naked assertions'
devoid of ‘further factual enhancements.'”
Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 555, 557). A plaintiff must allege with at least
some degree of particularity overt acts which the defendants
engaged in that support the plaintiff's claims.
Jones, 733 F.2d at 649.
respect to some of the specific allegations found in the
amended complaint, it appears plaintiffs wish to challenge
the assignment of the securitization of their home loan.
Plaintiffs are advised that “borrowers have standing to
challenge assignments as void, but not as voidable . . .
.” Yvanova v. New Century Mortg. Corp., 199
Cal.Rptr.3d 66, 82 (Cal. 2016); see also Mendoza v.
JPMorgan Chase Bank, N.A., 6 Cal.App.5th 802, 811 (2016)
(“A borrower has standing if the alleged assignment is
void, but not if the assignment is merely voidable.”).
the amended complaint frequently describes the assignment at
issue as void, it does not clearly and concisely explain what
rendered the assignment void. See generally Sciarratta v.
U.S. Bank National Association, 247 Cal.App.4th 552, 563
(2016) (allegations and judicially noticed documents
established void assignment where “first amended
complaint alleges that in November 2009, when Chase purported
to assign Sciarratta's promissory note and deed of trust
to Bank of America, Chase had nothing to assign, having
previously (in April 2009) assigned the promissory notes and
deed of trust to Deutsche Bank”); Saterbak v.
JPMorgan Chase Bank, N.A., 245 Cal.App.4th 808, 814
(2016) (“Saterbak alleges the DOT was assigned to the
2007-AR7 trust in an untimely manner under the PSA.
Specifically, she contends the assignment was void under the
PSA because MERS did not assign the DOT to the 2007-AR7 trust
until years after the closing date. Saterbak also alleges the
signature of ‘Nicole M. Wicks' on the assignment
document was forged or robo-signed. Saterbak lacks standing
to pursue these theories.”).
amended complaint also asserts vague and conclusory
allegations of fraud and deceit. (ECF No. 11 at 74-75.) Rule
9(b) requires that, “[i]n alleging fraud or mistake, a
party must state with particularity the circumstances
constituting fraud or mistake.” Fed.R.Civ.P. 9(b).
“‘Averments of fraud must be accompanied by
‘the who, what, when, where, and how' of the
misconduct charged.'” Kearns v. Ford Motor
Co., 567 F.3d 1120, 1124 (9th Cir. 2009) (quoting
Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106
(9th Cir. 2003)).
the amended complaint also alleges a claim for violation of
the Truth in Lending Act, (“TILA”). (ECF No. 11
at 85-86.) That claim appears to be time-barred. In this
regard, individual actions for damages under TILA must be
filed within one year of the date of occurrence of the
alleged violation. 15 U.S.C § 1640(e). The one-year
limitations period begins to run when the plaintiff executes
his or her loan documents, “because they could have
discovered the alleged disclosure violations and
discrepancies at that time.” Cervantes v.
Countrywide Home Loans, Inc., 656 F.3d 1034, 1045 (9th
Cir. 2011); see also Meyer v. Ameriquest Mortg. Co.,
342 F.3d 899, 902 (9th Cir. 2003) (“The failure to make
the required disclosures occurred, if at all, at the time the
loan documents were signed. The Meyers were in full
possession of all information relevant to the discovery of a
TILA violation and a § ...