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Allen v. OcWen Loan Servicing, LLC

United States District Court, N.D. California

August 29, 2019

Eric Allen, Plaintiff,
v.
Ocwen Loan Servicing, LLC, et al., Defendants.

          ORDER GRANTING MOTION TO DISMISS RE: DKT. NO. 55

          YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE

         Plaintiff Eric Allen's second amended complaint asserts eight causes of action against Ocwen Loan Servicing, LLC (“Ocwen”), Wells Fargo Bank, N.A. (“Wells Fargo”), Deutsche Bank National Trust Company (“DB”), and Does 1-100 arising out of a loan on the property at 424 Violet Road, Hercules, CA 94547 (“Subject Property”).[1] (Dkt. No. 54 (“SAC”).)

         On June 12, 2019, the Court granted motions by Wells Fargo as well as Ocwen and DB to dismiss plaintiff's first amended complaint and provided plaintiff leave to amend with respect to select claims.[2] (Dkt. No. 51 (“MTD Order”).) Now before the Court is Wells Fargo's motion to dismiss plaintiff's second amended complaint (“SAC”).[3] (Dkt. No. 55 (“MTD”).) Having carefully considered the pleadings and the papers submitted, and for the reasons set forth more fully below, the Court Grants defendant's motion to dismiss.

         I. Background

         The background giving rise to this action is well-known, and the Court will not repeat it here. (See MTD Order at 2-7.) Plaintiff's SAC includes a handful of additional allegations. (Compare Dkt. No. 35 with SAC.) The SAC includes the following new introductory allegations:

1. Plaintiff homeowner has filed suit seeking redress for claims arising out of breaches of contract (written and verbal agreements), negligent misrepresentation, negligence, promissory estoppel, violation of Cal. Civil Code § 2923.7, violation of 15 U.S.C. § 1601; and violation of 12 U.S.C. § 2605, as will be set forth below.
2. This action is of a civil nature. Plaintiff is informed and believes that this Court has jurisdiction over this case pursuant to 28 U.S.C. § 1331.
3. Venue is proper pursuant to 28 U.S.C. § 1391(a)(2) because the unlawful conduct is alleged to have occurred in Contra Costa County, California and Plaintiffs' home which is the subject of this litigation is located in Contra Costa County, California. Therefore, jurisdiction and venue is [sic] properly with this Court.

         (SAC ¶¶ 1-3.) Plaintiff adds only one new assertion to the “General Allegations” section of his SAC: “Plaintiff was an account holder and customer of Wells Fargo at the time of the payment incident on June 23, 2014 should have called him and been able to call him to tell him my payment was not credited toward his loan. Although Wells Fargo claimed they did not have his telephone number or any way to contact him about his payment, that is a false, and knowingly false statement.” (Id. ¶ 18 (quoted verbatim).) The Court addresses plaintiff's additional cause-of-action-specific allegations as it evaluates each of those claims below.

         II. Legal Standard

         Federal Rule of Civil Procedure 8(a) requires a plaintiff to plead each claim with sufficient specificity to “give the defendant fair notice of what the . . . claim is and the ground upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted). The factual allegations in the complaint “must be enough to raise a right to relief above the speculative level” such that the claim “is plausible on its face.” Id. at 556-57. Moreover, a plaintiff suing multiple defendants “must allege the basis of his claim against each defendant to satisfy Federal Rule of Civil Procedure 8(a)(2) . . . .” Gauvin v. Trombatore, 682 F.Supp. 1067, 1071 (N.D. Cal. 1988). “Specific identification of the parties to the activities alleged by the plaintiff[] is required . . . to enable [a] defendant to plead intelligently.” Herrejon v. Ocwen Loan Servicing, LLC, 980 F.Supp.2d 1186, 1196 (E.D. Cal. 2013) (internal quotation marks omitted).

         A complaint that falls short of the Rule 8(a) standard may be dismissed if it fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). “Dismissal under Rule 12(b)(6) is appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). For purposes of ruling on a Rule 12(b)(6) motion, the Court “accept[s] factual allegations in the complaint as true and construe[s] the pleadings in the light most favorable to a nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008).

         The Court, however, need not accept as true allegations contradicted by judicially noticeable facts, see Shwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000), and it “may look beyond the plaintiff's complaint to matters of public record” without converting the Rule 12(b)(6) motion to a motion for summary judgment, Shaw v. Hahn, 56 F.3d 1128, 1129 n.1 (9th Cir. 1995). Nor must the Court “assume the truth of legal conclusions merely because they are cast in the form of factual allegations.” Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (per curiam) (internal quotation marks omitted). Mere “conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss.” Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004).

         If a court determines that a complaint should be dismissed, it should give leave to amend unless “the pleading could not possibly be cured by the allegation of other facts.” Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990). In making this determination, a court must bear in mind “the underlying purpose of Rule 15 to facilitate decisions on the merits, rather than on the pleadings or ...


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