Diana M Marley v. JP Morgan Chase Bank et al

Filing 20

ORDER GRANTING DEFENDANTS MOTION TO DISMISS 7 by Judge Dean D. Pregerson: Plaintiff has leave to amend her claims under the Rosenthal Act and RESPA. Any amended complaint shall be filed within 14 days of this order. (lc). Modified on 8/27/2013. (lc).

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NO JS-6

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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DIANA M. MARLEY,

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Plaintiff,
v.
JP MORGAN CHASE BANK;
CALIFORNIA RECONVEYANCE
COMPANY,
Defendants.
___________________________

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Case No. CV 13-02320 DDP (Ex)
ORDER GRANTING DEFENDANTS’ MOTION
TO DISMISS
[Dkt. No. 7.]

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Presently before the court is Defendants JPMorgan Chase Bank,

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N.A.(“JPMorgan”) and California Reconveyance Company (“CRC”)’s Motion

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Having considered the parties’ submissions, 1 the court

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to Dismiss.

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adopts the following order.

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I. Background

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Plaintiff Diana Marley is a California resident. (Compl. ¶ 12.)

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Defendant

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corporation and a national banking association, which claims to be

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the owner and/or creditor of Plaintiff’s mortgage and promissory

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note. (Id. ¶ 13.)

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is a California corporation, which is alleged to be a trustee of

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JPMorgan

Chase

Bank

(“JPMorgan”)

is

a

California

Defendant California Reconveyance Company(“CRC”)

Plaintiff’s deed of trust. (Id. ¶ 14.)
Plaintiff contends she owns 2049 Carfax Avenue, Long Beach, CA

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908152 (“Subject Property”). ( Id. ¶ 2.)

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Plaintiff

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limited to a Note and Deed of Trust,” with Washington Mutual Bank,

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F.A. listed as the lender. ( Id. ¶ 20; See Exh. A, Deed of Trust.)

“conducted

a

consumer

On December 8, 2006,

transaction,

including

but

not

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1

Defendants’ Motion was originally set to be heard on June
17, 2013, meaning that under Local Rule 7-9, Plaintiff’s Opposition
was due on May 27, 2013. On June 20, 2013, Plaintiff filed a
motion for enlargement of time. The court issued a minute order
stating that Defendants Opposition was due on July 22, 2013, and
Plaintiff’s reply due on July 29, 2013. The court corrected this
order on July 9, 2013, stating that Plaintiff’s Opposition was due
on July 22, 2013, and Defendants’ Reply was due on July 29, 2013.
On July 26, 2013, Plaintiff filed an Opposition of 32 pages in
length, not including exhibits. Plaintiff’s Opposition was not
filed within the deadline and the court need not consider it under
L.R. 7-12. Additionally, the memorandum in opposition exceeded the
maximum length of 25 pages as established by L.R. 11-6.
Nonetheless, the court will consider the opposition because there
is a “strong policy underlying the Federal Rules of Civil Procedure
favoring decisions on the merits.” Eitel v. McCool, 782 F.2d 1470,
1472 (9th Cir. 1986).
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The Complaint also refers to a different address: 5045 W.
Chicago Circle South. (16.) However, the exhibits to the Complaint
use the Carfax address. See, e.g. Exh. A (Deed of Trust). Based
on those documents, the court believes that the property at the
Carfax address is the only property in question.
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That Deed of Trust indicates that “Borrower owes Lender Five hundred

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sixty thousand and 00/100 ($560,000) plus interest.”

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A, at (E).)

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sold to Washington Mutual Asset Corporation.

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7, 2007, it was sold into the secondary market through securitization

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to WMALT 2007-OA3. (Id. ¶ 21.)

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purchased by JPMorgan. (Id. ¶ 23).

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JPMorgan’s purchase did not include the consumer account of the

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Plaintiff.

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In

(Compl., Exh.

March 2007, Plaintiff’s “consumer transaction” was
(Id. ¶ 21.)

On March

Washington Mutual collapsed and was
However, Plaintiff alleges that

(Id. ¶ 23.)

Plaintiff

seeks

to

quiet

title

to

the

Subject

Property.

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Throughout her Complaint she asserts that she has not defaulted on

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the Subject Loan.

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against Defendants under the following causes of action: (1) Truth in

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Lending Act (“TILA”), 15 U.S.C. § 1641(g), (2) Fair Debt Collection

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Practices Act (“FDCPA”), 15 U.S.C. § 1692a(6), (3) Real Estate

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Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2605, (4) Rosenthal

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Act, Cal. Civ. Code § 1788, et seq., (5) breach of contract, and (6)

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California Civil Code §§ 2943, 2924h(g).

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II.

(See, e.g., id. ¶ 10.)

She also alleges claims

Judicial Notice

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Defendants request that the court take judicial notice of nine

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documents that are matters of public record: (1) A Grant Deed

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recorded with the Los Angeles County Recorder’s Office as instrument

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number 00-0926192, (2) A Grant Deed recorded with the Los Angeles

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County Recorder’s Office as instrument number 03 3242821, (3) A deed

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of Trust recorded with the Los Angeles County Recorder’s Office as

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instrument number 20070025378, (4) A true and correct copy of the

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Purchase and Assumption Agreement (the “P & A Agreement”) whereby

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Defendant acquired certain assets of Washington Mutual Bank, F.A.
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from the FDIC acting as receiver, including the Loan, available for

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retrieval

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http://www.fdic.gov/about/freedom/Washington_Mutual_P_and_A.pdf.

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(5) An Assignment of Deed of Trust recorded with the Los Angeles

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County Recorder’s Office as instrument number 20101666887, (6) A

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Notice of Default recorded with the Los Angeles County Recorder’s

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Office as instrument number 20100065667, (7) A Notice of Trustee’s

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Sale recorded with the Los Angeles County Recorder’s Office as

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instrument number 20110274655, (8) A Notice of Rescission recorded

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with the Los Angeles County Recorder’s Office as instrument number

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20121463523, (9) A Notice of Trustee’s Sale recorded with the Los

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Angeles County Recorder’s Office as instrument number 20121463524,

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(10) A Notice of Default recorded with the Los Angeles County

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Recorder’s Office as instrument number 20122031379, (11) A Notice of

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Default recorded with the Los Angeles County Recorder’s Office as

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instrument number 20130336402.

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at

Under Federal Rule of Evidence 201, a court may take judicial

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notice

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Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986). Documents (1)-(3) and

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(5)-(11) are public records of the Orange County Recorder’s Office

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such

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determination by resort to sources whose accuracy cannot reasonably

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be questioned.

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of

that

“matters

their

of

public

authenticity

record.”

is

Mack

capable

of

v.

South

accurate

Bay

and

Beer

ready

Furthermore, it is appropriate to take judicial notice of

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information

obtained

from

governmental

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“capable of accurate and ready determination by resort to sources

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whose accuracy cannot reasonably be questioned.”

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201(b); Paralyzed Veterans of America v. McPherson, 2008 WL 4183981,
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websites,

rendering

it

Fed. R. Evid.

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*5-*6 (N.D. Cal., Sept. 9, 2008)(collecting cases).

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available at a government website and therefore appropriate for

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judicial notice.

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Document (4) is

Consequently, this court GRANTS Defendants’ unopposed request

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for judicial notice of Documents (1)-(11).

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III. LEGAL STANDARD

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A complaint will survive a motion to dismiss when it contains

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“sufficient factual matter, accepted as true, to state a claim to

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relief that is plausible on its face.”

Ashcroft v. Iqbal, 556 U.S.

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662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544,

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570 (2007)).

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“accept as true all allegations of material fact and must construe

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those facts in the light most favorable to the plaintiff.”

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v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000).

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need not include “detailed factual allegations,” it must offer “more

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than an unadorned, the-defendant-unlawfully-harmed-me accusation.”

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Iqbal, 556 U.S. at 678.

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are no more than a statement of a legal conclusion “are not entitled

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to the assumption of truth.”

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that merely offers “labels and conclusions,” a “formulaic recitation

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of the elements,” or “naked assertions” will not be sufficient to

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state

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(citations and internal quotation marks omitted).

a

When considering a Rule 12(b)(6) motion, a court must

claim

upon

Resnick

Although a complaint

Conclusory allegations or allegations that

which

Id. at 679.

relief

can

In other words, a pleading

be

granted.

Id.

at

678

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“When there are well-pleaded factual allegations, a court should

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assume their veracity and then determine whether they plausibly give

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rise to an entitlement to relief.”

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allege “plausible grounds to infer” that their claims rise “above the

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speculative level.” Twombly, 550 U.S. at 555. “Determining whether a
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Id. at 679.

Plaintiffs must

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complaint states a plausible claim for relief” is a “context-specific

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task that requires the reviewing court to draw on its judicial

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experience and common sense.”

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IV. DISCUSSION

Iqbal, 556 U.S. at 679.

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A. Quiet Title

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To maintain an action to quiet title a plaintiff's complaint

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must be verified and must include (1) a description of the property

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including both its legal description and its street address or common

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designation; (2) the title of plaintiff as to which determination is

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sought and the basis of the title; (3) the adverse claims to the

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title of the plaintiff against which a determination is sought; (4)

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the date as of which a determination is sought and, if other than the

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date the complaint is filed, a statement why the determination is

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sought as of that date; and (5) a prayer for determination of

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plaintiff's title against the adverse claims.

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Pro. § 761.020.

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conflicting claims to the property and to declare each interest or

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estate to which the parties are entitled.

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Cal.App.3d 279, 284 (1970). In addition to the required elements for

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a quiet title action, a borrower cannot quiet title to a Property

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without discharging any debt owed.

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App.4th 1703 (1994)(holding: a mortgagor of real property cannot,

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without paying his debt, quiet his title against the mortgagee); see

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also Aguilar v. Bocci, 39 Cal.App.3d 475 (1974) (“The cloud upon

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[one's] title persists until the debt is paid”).

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See Cal. Code Civ.

The purpose of a quiet title action is to settle all

Newman v. Cornelius, 3

Miller v. Provost, 26 Cal.

Plaintiff appears to assert that she does not owe a debt to any

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defendant.

(Compl. ¶¶ 3, 11; Opp. at 18-19.)

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admission,

there

is

a

cloud

on
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her

title.

However, by her own
(Opp.

at

18-19.)

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Additionally, Plaintiff has not offered any explanation as to the

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public documents provided by Defendants indicating that she is in

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default for over $90,000.

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fashion that “[b]ased on defendants’ own proffered documents, and the

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evidence appearing in the county recorder’s office the documents

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appearing contains erroneous claims of ownership by a party not

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making such claim.”

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(RJN Doc. 9.)

She asserts in a conclusory

(Opp. at 18.)

For the above-mentioned reasons, the court DISMISSES this claim
with prejudice.

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B. TILA

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Congress enacted TILA “to assure a meaningful disclosure of

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credit terms so that the consumer will be able to compare more

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readily the various credit terms available to him and avoid the

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uninformed

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inaccurate and unfair credit billing and credit card practices.”

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U.S.C. § 1601(a).

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borrowers with clear and accurate disclosures of terms dealing with

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things like finance charges, annual percentage rates of interest, and

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the borrower’s rights.”

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(1998).

use

of

credit,

and

to

protect

the

consumer

against
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Accordingly, TILA “requires creditors to provide

Beach v. Ocwen Fed. Bank, 523 U.S. 410, 412

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TILA provides that an “action [for damages] . . . may be brought

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in any United States district court, or in any other court of

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competent

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occurrence of the violation.”

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Circuit has held that the one-year window for filing a TILA damages

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claim

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transaction.” King v. California, 784 F.2d 910, 915 (9th Cir. 1986).

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Here, Plaintiff alleges that Defendants violated TILA by failing

jurisdiction,

generally

“runs

within

from

one

year

from

the

date

15 U.S.C. § 1640(e).

the

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date

of

of

the

The Ninth

consummation

of

the

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to provide a disclosure that the Subject Loan was transferred to a

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different entity.

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occurred, if at all, on or about November 18, 2010, more than two

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years prior to the date on which Plaintiff initiated this action.

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(RJN Doc. 5.)

(Compl. ¶ 50.)

The latest alleged violation

Accordingly, Plaintiff’s claim is time barred.

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In some cases, the doctrine of equitable tolling suspends the

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applicable limitations period “until the borrower discovers or had

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reasonable opportunity to discover the fraud or nondisclosures that

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form the basis of the TILA action.”

King, 784 F.2d at 915.

Courts

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must consider the applicability of equitable tolling whenever a

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complaint, liberally construed, alleges facts showing the “potential

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applicability of the equitable tolling doctrine.”

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of San Diego, 5 F.3d 1273, 1277 (9th Cir. 1993).

Cervantes v. City

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Where a borrower does not allege that she was somehow prevented

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from comparing her loan documents with TILA’s disclosure requirements

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within the limitation period, equitable tolling is not available.

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See Hubbard v. Fidelity Fed. Bank, 91 F.3d 75, 79 (9th Cir. 1996);

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Feliciano v. Wash. Mut. Bank, F.A., No. 09-CV-01304, 2009 WL 2390842,

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at *4 (E.D. Cal. August 3, 2009).

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any facts that would warrant equitable tolling of her claim.

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claim is therefore DISMISSED with prejudice.

Here, Plaintiff has not alleged
The

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C. FDCPA

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The FDCPA seeks to curtail abusive collection practices by debt

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collectors.

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the FDCPA, does not apply, however, to mortgage holders, mortgage

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loan servicers, or foreclosure activities.

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Mortgage Funding, Inc., No. CIV S-10-0952 LKK DAD, 2010 WL 4983468 at

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*7 (E.D. Cal. Dec. 2, 2010); Lobato v. Acqura Loan Servs. , No.

15 U.S.C. § 1692.

The term “debt collector,” and thus

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Usher v. Greenpoint

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11cv2601 WDH, 2012 WL 607624 at *5 (S.D. Cal. Feb. 23, 2012).

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debt referred to by Plaintiff as being collected by Defendants is the

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Notice of Trustee Sale, dated 12/08/2006. (Compl., Exh. B.)

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the only debt involved appears to be a home loan taken out by

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Plaintiff. “However, the law is clear that foreclosing on a property

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pursuant to a deed of trust is not a debt collection within the

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meaning of the RFDCPA or the FDCA.”

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2009 WL 656285 (N.D. Cal. Mar. 12, 2009).

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of Blue Valley, 746 F.Supp. 2d 1160, 1176-77 (E.D. Cal. 2010).

The

Thus,

Gamboa v. Tr. Corps, 09-0007 SC,
See also Hamilton v. Bank

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Accordingly, Plaintiff’s FDCPA claim is DISMISSED with prejudice.

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D. Rosenthal Act

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Liability under the Rosenthal Fair Debt Collection Practices Act

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can

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collection.”

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allegation that a defendant foreclosed on a deed of trust does not

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implicate the Rosenthal Act,” a remedy may be available “[w]here the

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claim arises out of debt collection activities ‘beyond the scope of

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the ordinary foreclosure process.’”

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Inc., No. C-11-00490, 2011 WL 1585530, at *9 (N.D. Cal. Apr. 27,

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2011)(quoting Walters v. Fidelity Mortgage of Cal., Inc., 730 F.

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Supp. 2d 1185, 1203 (E.D. Cal. 2010)).

exist

only

where

a

“debt

collector”

Cal. Civ. Code § 1788.2(c).

is

engaged

in

“debt

Although “the mere

Austero v. Aurora Loan Servs.,

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Here, however, Plaintiff has not alleged sufficient facts to

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support a claim beyond the scope of the ordinary foreclosure process.

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Her Complaint contains only conclusory statements that appear to stem

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largely from her wrongful foreclosure claim.

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the other hand, she contends that Defendants violated the RFDCPA by

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making “misrepresentations to credit agencies concerning consumers’

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credit history.”

(Opp. at 23.)
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In her Opposition, on

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Accordingly, because Plaintiff might be able to adequately

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plead an RFDCPA claim, the court dismisses her fifth cause of action

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with leave to amend.

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allege sufficiently relevant and specific facts, if she chooses to

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amend this claim.

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E. RESPA

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The Real Estate Settlement Procedures Act (“RESPA”) defines a

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Qualified Written Request (“QWR”) as “a statement of the reasons for

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the belief of the borrower, to the extent applicable, that the

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account is in error, or provides sufficient detail to the servicer

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regarding other information sought by the borrower.”

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2605(e)(1)(B).

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QWRs from a borrower or an agent of the borrower.

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2605(e)(1)(A).

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not its validity.”

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F.Supp. 2d 1002, 1014 (N.D.Cal. 2009).

The court notes, however, that Plaintiff must

12 U.S.C. §

Under RESPA, mortgage loan servicers must respond to
12 U.S.C. §

“[A] QWR must address the servicing of the loan, and
Consumer Solutions REO, LLC v. Hillery, 658

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Here,

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(Compl. Exh. C.)

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Exh. D.)

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addresses only the validity of the loan and not of the servicing of

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the loan; the QWR does address the validity of the loan, but it also

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requests information relevant to the loan’s servicing (including

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payments to interest, principal, escrow advances, and expenses).

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However, it appears that the deficiency of Defendants’ response as

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alleged in the Complaint concerns the validity of the loan.

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¶ 64 (“Defendants did not respond within 20 days to Plaintiff’s

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request for the name of the owner and holder of the alleged Note . .

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. . [D]efendants provided a mere duplicate copy of the publicly

Plaintiffs

submitted

a

QWR

dated

January

Defendants responded to the QWR.

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2013.

(Compl. ¶ 31 and

The court does not agree with Defendants that the QWR

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(Compl.

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recorded Note from the Los Angeles County Recorders’ office.”).)

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Because this deficiency addresses the validity of the loan, and not

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the servicing of the loan, Plaintiff has not stated a claim under

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this cause of action.

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For these reasons, the court DISMISSES this claim with leave to
amend.

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F. Breach of Contract

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To state a claim for breach of contract, a plaintiff must allege

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“(1)

the

contract,

(2)

plaintiff's

performance

or

excuse

for

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nonperformance, (3) defendant's breach, and (4) damage to plaintiff

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therefrom.”

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App. 4th 1171, 1178 (2008).

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full

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nonperformance. Judicially noticeable documents establish she was in

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default of over $90,000 on the Subject Loan, but she provides no

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excuse for this failure to perform. (RJN Docs. 9-11.) Additionally,

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judicially noticeable documents indicate that Defendants gave notice

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to Plaintiff of Default and Trustee Sale.

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Plaintiff therefore has not established a breach by Defendants.

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Wall St. Network, Ltd. v. New York Times Co., 164 Cal.

performance

under

the

Here, Plaintiff does not establish her
Deed

of

Trust

or

any

excuse

for

(RJN Docs. 6-7 and 9-11.)

For these reasons, the court GRANTS with prejudice the unopposed
motion to dismiss this claim.

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G. Cal. Civ. Code § 2943, 2924h(G)

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Plaintiff does not oppose the dismissal of the claim under Cal.

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Civ. Code § 2943, and the court agrees with Defendants that it is not

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clear

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Accordingly, that claim is DISMISSED.

how

the

provision

relates

to

Plaintiff’s

Complaint.

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Under California Civil Code § 2943, a beneficiary must respond

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to a written demand within 21 days of receipt and provide a “true,
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correct,

2

indebtedness

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statement.” Here, judicially noticeable documents establish that the

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beneficiary under the Subject Loan was not Defendants but U.S. Bank,

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National

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Defendants cannot be liable for any alleged untimely response.

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claim under this section is also DISMISSED with prejudice.

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V. Conclusion

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and

complete
with

copy

any

Association,

of

the

modification

as

of

note

or

thereto,

November

17,

other
and

2010.

a

evidence

of

beneficiary

Accordingly,
The

For the reasons stated above, the court GRANTS the motion to

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dismiss in its entirety.

Plaintiff has leave to amend her claims

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under the Rosenthal Act and RESPA.

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filed within 14 days of this order.

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IT IS SO ORDERED.

Any amended complaint shall be

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Dated:August 27, 2013
DEAN D. PREGERSON
United States District Judge

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