United States District Court, S.D. California
ORDER GRANTING MOTIONS TO DISMISS AND DISMISSING CASE
WITH PREJUDICE [DOC. NOS. 19, 20]
Cathy Ann Bencivengo, United States District Judge
removing this case from San Diego County Superior Court,
Defendants U.S. Bank Trust, N.A., as trustee for LSF9 Master
Participation Trust (“US Bank”), Summit
Management Company, LLC (“Summit”), Defendant
Bank of America, N.A. (“BoA”), and Defendant
Mortgage Electronic Registration Systems
(“MERS”), (collectively “Defendants”)
moved to dismiss the original complaint. [Doc. Nos. 3, 9.]
The Court granted those motions and, notwithstanding the lack
of a request from Plaintiff and the Court's own
skepticism that Plaintiff could remedy the deficiencies in
the original complaint, granted Plaintiff leave to amend. On
October 25, 2019, Plaintiff filed her first amended complaint
(“FAC”). [Doc. No. 18.] The FAC is virtually
identical to the original complaint aside from several
paragraphs of what would more aptly be described as legal
argument than new allegations of fact. Thus, Defendants now
move to dismiss the FAC for all of the deficiencies outlined
in the Court's original dismissal order. [Doc. Nos. 19,
20.] The Court deems the motions suitable for determination
on the papers submitted and without oral argument.
See S.D. Cal. CivLR 7.1(d)(1). For the reasons set
forth below, the motions to dismiss the FAC are granted, and
the FAC is dismissed with prejudice.
Legal Standard for Motions to Dismiss
familiar standards on a motion to dismiss apply here. To
survive a motion to dismiss under Rule 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). Thus, the Court
“accept[s] factual allegations in the complaint as true
and construe[s] the pleadings in the light most favorable to
the nonmoving party.” Manzarek v. St. Paul Fire
& Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir.
2008). On the other hand, the Court is “not bound to
accept as true a legal conclusion couched as a factual
allegation.” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 555). Nor is the Court
“required to accept as true allegations that contradict
exhibits attached to the Complaint or matters properly
subject to judicial notice, or allegations that are merely
conclusory, unwarranted deductions of fact, or unreasonable
inferences.” Daniels-Hall v. Nat'l Educ.
Ass'n, 629 F.3d 992, 998 (9th Cir. 2010). “In
sum, for a complaint to survive a motion to dismiss, the
non-conclusory factual content, and reasonable inferences
from that content, must be plausibly suggestive of a claim
entitling the plaintiff to relief.” Moss v. U.S.
Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009)
(quotation marks omitted).
review of the motions and the FAC, the Court finds that
Plaintiff failed to remedy the deficiencies identified in the
Court's previous Order dismissing the complaint with
leave to amend. [Doc. No. 15.] Indeed, as far as the Court
can discern, the FAC adds no new factual allegations and is
verbatim identical to the original complaint aside from some
legal argument added to paragraphs 11 and 12 of the FAC. In
her oppositions, Plaintiff appears to be relying on the same
defective legal theories the Court previously held were
unavailing and does not identify how the FAC offers any
factual basis to convince the Court otherwise. As the Court
previously stated, because the Deed of Trust gave MERS the
authority to execute the September 2009 Assignment, the
substitution of trustee to Recontrust Company and assignment
of beneficial interest to BAC Home Loans Servicing, LP is not
void based on the MERS foreclosure manual or Countrywide
Bank's lack of membership in MERS. Furthermore, whether
U.S. Bank had an interest in the note is irrelevant to its
right to foreclose based on its beneficial interest in the
Deed of Trust. Accordingly, Defendants' motions to
dismiss the FAC are GRANTED.
discussed above, the FAC does not remedy the deficiencies
identified in the Court's order dismissing the original
complaint. Accordingly, Defendants' motions to dismiss
are GRANTED, and the FAC is
DISMISSED WITH PREJUDICE The Clerk of Court
shall close this case.
 The factual allegations in the FAC are
identical to those in original complaint. Accordingly, the
background provided in the Court's order dismissing the
original complaint is equally ...