United States District Court, S.D. California
ORDER GRANTING DEFENDANT OCWEN LOAN SERVICING,
LLC'S MOTION TO DISMISS [DOC. NO. 4]
MICHAEL M. ANELLO, UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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.
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).
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).
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).
Ocwen's Request for Judicial Notice
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.
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 “documents
whose contents are alleged in a complaint and whose
authenticity no party questions, but which are not physically