Annette Britton Cordero v. Bank of America NA et al
Filing
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ORDER DENYING PLAINTIFFS MOTION TO REMAND 11 AND GRANTING DEFENDANTS MOTION TO DISMISS 12 15 .Because amendment would be futile, Plaintiffs claims are dismissed with prejudice. by Judge Dean D. Pregerson. (MD JS-6. Case Terminated) . (lc) Modified on 8/28/2013 (lc).
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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ANNETTE BRITTON CORDERO,
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Plaintiff,
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v.
BANK OF AMERICA,
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Defendant.
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___________________________
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Case No. CV 13-02591 DDP (MRWx)
ORDER DENYING PLAINTIFF’S MOTION
TO REMAND AND GRANTING
DEFENDANT’S MOTION TO DISMISS
[Dkt. Nos. 11, 12, 15]
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Presently before the court is Plaintiff’s Motion to Remand and
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Defendant Bank of America’s Motion to Dismiss.
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the submissions of the parties, the court denies Plaintiff’s Motion
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to Remand, grants Defendant’s Motion to Dismiss, and adopts the
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following order.
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I.
Having considered
Background
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On March 15, 2006, Angela Britton Del Rio (Ms. Del Rio) and
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her late husband executed a $650,000 promissory note in favor of
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Instant Capital Funding Group, Inc. for the purchase of property
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at 17031 Paulette Place, Granada Hills, California.
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Amended Complaint ¶¶ 8-9.)
(First
The loan was secured by a Deed of
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Trust listing Mortgage Electronic Registration Systems, Inc.
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(“MERS”) as nominee and beneficiary.
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2010, MERS executed an Assignment (“the Assignment”) of all
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beneficial interest in the Deed to Defendant’s predecessor in
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interest.
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(FAC ¶9)
On September 22,
(FAC ¶¶ 2, 12-13.)
The FAC alleges a First Cause of Action for cancellation of
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the Assignment under California Civil Code Section 3412 and a
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Second Cause of Action for unfair business practices pursuant to
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California Business & Professions Code Section 17200.1
The crux of
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Plaintiff’s complaint is that the Assignment is invalid, and no
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transfer of any interest in the Deed to Bank of America ever
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occurred.
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II.
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(FAC ¶ 16.)
Defendant now moves to dismiss the FAC.
Legal Standard
Under 28 U.S.C. § 1441, a court has removal jurisdiction
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pursuant to 28 U.S.C. § 1332(a) when there is complete diversity
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of citizenship and the amount in controversy exceeds $75,000.
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Where the complaint does not include a particular damages figure,
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the removing defendant must demonstrate, by a preponderance of the
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evidence, that the amount in controversy exceeds $75,000. Sanchez
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v. Monumental Life Ins. Co., 102 F.3d 398, 404 (9th Cir.1996); see
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Gaus, 980 F.2d at 567 (finding that the party seeking removal
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bears the burden of establishing federal jurisdiction if the
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complaint leaves the amount in controversy unclear or ambiguous).
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A complaint will survive a motion to dismiss when it contains
“sufficient factual matter, accepted as true, to state a claim to
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Plaintiff’s Request to Voluntarily Dismiss Plaintiff’s Third
Cause of Action for violations of California Civil Code Sections
2923.5 and 2924 is granted.
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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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must “accept as true all allegations of material fact and must
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construe those facts in the light most favorable to the
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plaintiff.” Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000).
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Although a complaint need not include “detailed factual
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allegations,” it must offer “more than an unadorned, the-
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defendant-unlawfully-harmed-me accusation.”
When considering a Rule 12(b)(6) motion, a court
Iqbal, 556 U.S. at
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678.
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a statement of a legal conclusion “are not entitled to the
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assumption of truth.” Id. at 679.
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merely offers “labels and conclusions,” a “formulaic recitation of
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the elements,” or “naked assertions” will not be sufficient to
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state a claim upon which relief can be granted.
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(citations and internal quotation marks omitted).
Conclusory allegations or allegations that are no more than
In other words, a pleading that
Id. at 678
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“When there are well-pleaded factual allegations, a court
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should assume their veracity and then determine whether they
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plausibly give rise to an entitlement of relief.” Id. at 679.
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Plaintiffs must allege “plausible grounds to infer” that their
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claims rise “above the speculative level.” Twombly, 550 U.S. at
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555. “Determining whether a complaint states a plausible claim for
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relief” is a “context-specific task that requires the reviewing
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court to draw on its judicial experience and common sense.”
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Iqbal, 556 U.S. at 679.
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III. Discussion
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A.
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Plaintiff argues that the $75,000 threshold for diversity
Amount in Controversy
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jurisdiction is not met because she does not seek rescission of
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her $650,000 loan.
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to Ramirez v. U.S. Bank N.A. and Gaspar v. Wachovia Bank, neither
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case supports Plaintiff’s position.
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remanded where the Plaintiff amended his complaint to clarify that
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he was seeking postponement of a foreclosure sale and $65,000 in
(Remand Mot. at 2-4.)
Though Plaintiff cites
In Ramirez, the court
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compensatory damages.
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MEJ, 2012 WL 2838798 at *2 (N.D. Cal. Jul. 10, 2012).
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the plaintiff sought only a loan modification and unspecified
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damages.
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577416 at *4 (N.D. Cal. Feb. 9, 2011).
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Plaintiff seeks to cancel the Assignment of the Deed to Bank of
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American and establish that Defendant has no interest whatsoever
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in the Deed.
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the loan amount was $650,000, and Plaintiff was over $79,000 in
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arrears by September 2010.
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therefore satisfied that the jurisdictional minimum is met.
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Plaintiff’s Motion to Remand is DENIED.
Ramirez v. U.S. Bank N.A., No. C-12-0851
In Gaspar,
Gaspar v. Wachovia Bank, No. C 10-3597 SBA, 2011 WL
Here, in contrast,
While the exact value of the property is unclear,
(FAC Exs. A, C.)
The court is
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B.
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Under California Civil Code Section 3412, a person may seek
Cancellation of Written Instrument
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to cancel a written instrument if there is a “reasonable
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apprehension that if left outstanding it may cause serious injury
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to [that] person[,] against whom it is void or voidable.”
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Civ. Code § 3412; Nguyen v. Bank of America Nat’l Ass’n, No. 11-
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CV-3318-LHK, 2011 WL 5574917 at * 5 (N.D. Cal. Nov. 15, 2011).
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Cal.
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The Assignment, however, is an agreement between MERS and
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Defendant.
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that agreement.
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of the Deed to Defendant, the Assignment would not change
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Plaintiff’s debt obligation, and therefore would not harm
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Plaintiff.
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WL 2049388 at *3 (N.D. Cal. May 14, 2013).
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of specific harm or serious injury to Plaintiff, she lacks
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standing to challenge MERS’ Assignment of the Deed to Defendant.2
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Tatola v. HSBC Bank USA, No. C-11-3994 MMC, 2011 WL 5025072 at *3
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(N.D. Cal. Oct. 21, 2011) (dismissing Section 3412 claim); See
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also Steele v. First Magnus Fin, Corp., No. 12-cv-5054-RS, 2013 WL
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4039976 at *2 (N.D. Cal. Aug. 7, 2013); Soberanis v. MERS, No. 13-
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CV-1296-H, 2013 WL 4046458 at *7 (S.D. Cal. Aug. 8, 2013).
Plaintiff is neither a party to nor a beneficiary of
Even if there were some flaw in MERS’ assignment
Flores v. GMAC Mortgage, LLC, No. C. 12-794 SI, 2013
Absent some allegation
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C.
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California’s unfair competition law (UCL) proscribes business
Unfair Competition
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practices that are unlawful, fraudulent, or unfair.
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Profs. Code § 7200; Davis v. HSBC Bank Nevada, N.A., 691 F.3d
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1152, 1168-69 (9th Cir. 2012).
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plaintiff must allege (1) economic injury that (2) resulted from
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the alleged improper practice.
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Kwikset Corp. v. Superior Court, 51 Cal.4th 310, 322 (2011).
Cal. Bus. &
To state a claim under the UCL, a
Cal. Bus. & Prof. Code § 17204;
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Here, Plaintiff contends that she has been harmed because the
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title to her home has been clouded and because she has spent funds
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While the FAC does make some vague reference to clouded
title upon Plaintiff’s property, such allegations appear to refer
to Plaintiff’s withdrawn cause of action under California Civil
Code Sections 2923.5 and 29324, which centered upon a Notice of
Default and Notice of Trustee’s sale. (FAC ¶ 20.)
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on attorneys’ fees.
(FAC ¶ 43.)
Potential clouds on title,
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however, do not constitute a loss of money or property, as is
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required to establish economic injury under the UCL.
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Bank, Nat’l Ass’n, No. EDCV 12-2171-VAP, 2013 WL 1398964 at *9
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(C.D. Cal. Apr. 3, 2013); Gyene v. Steward Fin., Inc., No. CV 12-
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4355 DSF, 2013 WL 146191 at *4 (C.D. Cal. Jan. 11, 2013); Phong
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Tran v. Bank of America, N.A., No. 12-4504 PSG, 2013 WL 2368048 at
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*4 (N.D. Cal. May 29, 2013).
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sufficient to confer standing under the UCL.
Hunt v. U.S.
Nor are Plaintiff’s legal expenses
Thompson v.
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Residential Credit Solutions, Inc., No. CIV 2:11-2261 WBS, 2012 WL
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260357 at *5 (E.D. Cal. Jan. 26, 2012) (“Under Plaintiff’s
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reasoning, a private plaintiff bringing a UCL claim automatically
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would have standing merely by filing suit.” (quotation and
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citation omitted).
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claim must be dismissed.
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IV.
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Absent any injury in fact, Plaintiff’s UCL
Conclusion
For the reasons stated above, Plaintiff’s Motion to Remand is
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DENIED and Defendant’s Motion to Dismiss is GRANTED.
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amendment would be futile, Plaintiff’s claims are dismissed with
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prejudice.
Because
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IT IS SO ORDERED.
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Dated: August 28, 2013
DEAN D. PREGERSON
United States District Judge
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