United States District Court, E.D. California
MICHAEL A. FAZIO and KIM MARIE FAZIO, Plaintiffs,
FEDERAL HOME LOAN MORTGAGE CORPORATION, JP MORGAN CHASE BANK, NATIONAL ASSOCIATION; MTC FINANCIAL, DBA TRUSTEE CORPS; and DOES 1-100, Defendants.
FINDINGS AND RECOMMENDATIONS
DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE
matter came before the court on November 18, 2016, for
hearing of defendants' motions to dismiss pursuant to
Rule 12(b)(6) of the Federal Rules of Civil
Procedure. Plaintiffs Michael Fazio and Kim Fazio
appeared in person on their own behalf. Attorney William
Idleman appeared telephonically on behalf of defendants JP
Morgan Chase Bank, N.A., (“Chase”), and Federal
Home Loan Mortgage, (“Freddie Mac”). Attorney
Martin Kosla appeared telephonically on behalf of defendant
MTC Financial Inc., dba Trustee Corps, (“Trustee
Corps”). After hearing oral argument, defendants'
motions were taken under submission.
reasons stated below, the undersigned will recommend that
defendant Freddie Mac's motion to dismiss the
complaint's federal law cause of action be granted and
that this action be remanded to the El Dorado County Superior
proceeding pro se, commenced this action on August 11, 2016,
by filing a complaint in the El Dorado County Superior Court.
(Compl. (ECF No. 1-1) at 1.) Therein, plaintiffs allege
causes of action for the violation of the Truth in Lending
Act, (“TILA”), 15 U.S.C. § 1641, against
defendant Freddie Mac, and for wrongful foreclosure and
cancelation of documents against defendants Freddie Mac,
Chase, and Trustee Corps, stemming from the August 20, 2014
foreclosure sale of the property at 7365 Nutmeg Lane,
Placerville, California 95667, (“property”).
(Id. at 8-32.)
Freddie Mac and Chase removed the matter to this court on
September 13, 2016, on the basis of federal question and
diversity jurisdiction. (ECF No. 1.) On September 20, 2016,
defendants Freddie Mac and Chase filed a motion to dismiss.
(ECF No. 6.) On October 7, 2016, plaintiffs filed an
opposition to Chase's motion to dismiss. (ECF No. 10.)
October 13, 2016, defendant Trustee Corps also filed a motion
to dismiss. (ECF No. 15.) Plaintiffs filed an opposition to
that motion to dismiss on October 28, 2016. (ECF No. 22.)
Defendants Freddie Mac, Chase, and Trustee Corps filed
replies on November 10, 2016. (ECF Nos. 26 & 27.)
Legal Standards Applicable to Motions to Dismiss Pursuant
to Rule 12(b)(6)
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). 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).
ruling on a motion to dismiss brought pursuant to Rule
12(b)(6), the court is permitted to consider material which
is properly submitted as part of the complaint, documents
that are not physically attached to the complaint if their
authenticity is not contested and the plaintiff's
complaint necessarily relies on them, and matters of public
record. Lee v. City of Los Angeles, 250 F.3d 668,
688-89 (9th Cir. 2001).