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Nikoopour v. Ocwen Loan Servicing, LLC

United States District Court, S.D. California

February 23, 2018

BIJAN NIKOOPOUR, an individual, Plaintiff,
v.
OCWEN LOAN SERVICING, LLC, a Delaware limited liability company; and WESTERN PROGRESSIVE, LLC, a Delaware limited liability company, Defendants.

          ORDER GRANTING DEFENDANT OCWEN LOAN SERVICING, LLC'S MOTION TO DISMISS [DOC. NO. 4]

          HON. MICHAEL M. ANELLO, UNITED STATES DISTRICT JUDGE.

         Plaintiff Bijan Nikoopour (“Plaintiff”) filed a Complaint against Ocwen Loan Servicing, LLC (“Ocwen”) and Western Progressive, LLC (collectively “Defendants”) in the Superior Court for the County of San Diego alleging: (1) breach of contract; (2) negligence; and (3) violations of California's Unfair Competition Law (“UCL”). See Doc. No. 1-2 (hereinafter “Complaint”). On September 29, 2017, Defendants removed the action to this Court. See Doc. No. 1. Ocwen moves to dismiss Plaintiff's Complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). See Doc. No. 4. Plaintiff filed an opposition to Ocwen's motion, to which Ocwen replied. See Doc. Nos. 7, 8. The Court found the matter suitable for determination on the papers and without oral argument pursuant to Civil Local Rule 7.1.d.1. See Doc. No. 9. For the reasons set forth below, the Court GRANTS Ocwen's motion to dismiss.

         Background[1]

         On or about August 31, 2006, Plaintiff obtained a loan in the amount of eight hundred eighty-one thousand two hundred and fifty dollars ($881, 250.00) to purchase the property located at 13668 Landfair Road, San Diego, California, 92130. Complaint ¶ 22. Plaintiff obtained the loan through Mortgageit, Inc. as the lender of the Note. Id. The Note was secured by a Deed of Trust. Id., Exh. A. On or about November 2013, the servicing rights of the Note were transferred to Ocwen. Id. ¶ 23.

         Due to financial hardships, Plaintiff fell behind on his mortgage payments. Id. ¶ 24. Plaintiff inquired with Ocwen about “foreclosure prevention alternatives.” Id. ¶ 25. Ocwen sent Plaintiff a loan modification application, and on or about December 10, 2014, Plaintiff returned “the completed loan modification application” to Ocwen via mail. Id. However, from December 2014 to “approximately July 2015, Plaintiff was given the run around by OCWEN.” Id. ¶ 26. As such, Plaintiff filed a complaint against Ocwen in state court. Id. ¶ 28. Plaintiff dismissed this action without prejudice on or about October 31, 2016. Id. ¶ 36.

         On or about July 28, 2015, Plaintiff filed for Chapter 13 bankruptcy. Id. ¶ 30. Plaintiff alleges that “on or about August or October 2015” or “October-November 2015, ” Ocwen approved Plaintiff for a step rate loan modification while in bankruptcy. Id. ¶¶ 31, 39; see also id., Exh. B. However, Plaintiff alleges that Ocwen representatives provided Plaintiff with four different addresses where Plaintiff could send his payment. Id. ¶ 33. As such, “Plaintiff did not know where to send the loan modification payment to and could not tender payment.” Id. When Plaintiff “followed up” with Ocwen in November and December 2015 to inquire about where to send his payments, Ocwen indicated that since it had not received payment by November 1, 2015, “the loan modification was no longer on the table.” Id. ¶ 34. Plaintiff dismissed the bankruptcy on November 3, 2015. Id.

         In July 2016, Plaintiff claims Ocwen approved him for a second loan modification. Id. ¶ 35. Plaintiff was dissatisfied, however, because the “new loan modification was nearly double the interest rate of the initial loan modification approval[.]” Id. Plaintiff requested Ocwen “honor” the terms of the first loan modification, but Ocwen “refused.” Id. Plaintiff believes that Ocwen intends to foreclose upon the property. Id. ¶ 37. Based upon these allegations, Plaintiff commenced the instant action against Defendants on August 29, 2017, alleging breach of contract, negligence, and violations of California's UCL. See Complaint.

         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). “However, [courts] are not required to accept as true conclusory allegations which are contradicted by documents referred to in the complaint.” Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295-96 (9th Cir. 1998). 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. Ocwen's Request for Judicial Notice

         As an initial matter, Ocwen requests the Court take judicial notice of four public records (Exhibits A-D) relating to Plaintiff's Complaint, and further requests that the Court incorporate by reference Exhibit E into Plaintiff's Complaint. See Doc. No. 4-2. Exhibit A is a Deed of Trust dated August 24, 2009, recorded in the San Diego County Recorder's Office. Exhibit B is a Notice of Default and Election to Sell dated June 29, 2009, recorded in the San Diego County Recorder's Office. Exhibit C is a Notice of Default and Election to Sell dated September 17, 2010, recorded in the San Diego County Recorder's Office. Exhibit D is a Notice of Default and Election to Sell dated January 5, 2015, recorded in the San Diego County Recorder's Office. Exhibit E is a Loan Modification Offer from Ocwen to Plaintiff dated August 6, 2015.

         Generally, a district court's review on 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)). However, “a court may take judicial notice of matters of public record, ” id. at 689 (internal quotations omitted), and of ‚Äúdocuments whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically ...


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