Patricia Alejandro v. Quality Loan Service Corp et al

Filing 26

MINUTE ORDER (IN CHAMBERS) ORDER GRANTING MOTION TO DISMISS by Judge Audrey B. Collins: re: MOTION to Dismiss Quality Loan Service Corp 9 . Pending before the Court is Defendant Quality Loan Services Corporation's Motion to Dismi ss ("Motion," docket no. 9). Plaintiff Patricia Alejandro ("Plaintiff") filed an Opposition and Defendant filed a Reply. The Court finds the Motions appropriate for resolution without oral argument and therefore VACATES the heari ng set for February 10, 2014. See Fed. R. Civ. P. 78, Local Rule 7-15. For the following reason, the Court GRANTS the Motion....Defendant's Motion to Dismiss is hereby GRANTED. Plaintiff's Complaint is DISMISSED without leave to amend. (PLEASE REVIEW DOCUMENT FOR FULL AND COMPLETE DETAILS) Case Terminated. Made JS-6. (lw)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
Case No.

CV 13-7604 ABC (JCGx)

Title

Patricia Alejandro v. Quality Loan Service Corp et al

Present: The
Honorable

Date

February 5, 2014

Audrey B. Collins, United States District Judge

Angela Bridges

Not Present

N/A

Deputy Clerk

Court Reporter / Recorder

Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

None

None

Proceedings:

ORDER GRANTING MOTION TO DISMISS (In Chambers)

Pending before the Court is Defendant Quality Loan Services Corporation’s Motion to Dismiss
(“Motion,” docket no. 9). Plaintiff Patricia Alejandro (“Plaintiff”) filed an Opposition and Defendant
filed a Reply. The Court finds the Motions appropriate for resolution without oral argument and
therefore VACATES the hearing set for February 10, 2014. See Fed. R. Civ. P. 78, Local Rule 7-15.
For the following reason, the Court GRANTS the Motion.
I. BACKGROUND
This case arises out of the foreclosure of Plaintiff’s home. The only defendant remaining in the
case is Quality Loan Service Corp. (“QLS”). QLS is the trustee under a deed of trust; QLS foreclosed
on that deed of trust after Plaintiff failed to make payments as required by the promissory note and deed
of trust. Plaintiff pled nine of her ten causes of action against QLS; QLS moves to dismiss on several
bases.
II. LEGAL STANDARD
Fed. R. Civ. P. 8(a)(2) requires a pleading to present a “short and plain statement of the claim
showing that the pleader is entitled to relief.” Under Fed. R. Civ. P. 12(b)(6), a defendant may move to
dismiss a pleading for “failure to state a claim upon which relief can be granted.” Thus, a pleading that
does not satisfy Rule 8 is subject to dismissal under Rule 12(b)(6). Dismissal is proper under Rule
12(b)(6) where there is either a “lack of a cognizable legal theory” or “the absence of sufficient facts
alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dept., 901 F.2d 969, 699 (9th Cir.
1988).
“[A] plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than
labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotations and alterations omitted).
Although this does not require “detailed factual allegations,” it “demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 555 U.S. 662, 678 (2009). A
sufficiently-pled claim must be “plausible on its face.” Id. “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
Case No.

CV 13-7604 ABC (JCGx)

Date

Title

February 5, 2014

Patricia Alejandro v. Quality Loan Service Corp et al

is liable for the misconduct alleged.” Id. For purposes of a motion to dismiss, allegations of fact are
taken as true and are construed in the light most favorable to the nonmoving party. See Newdow v.
Lefevre, 598 F.3d 638, 642 (9th Cir. 2010).
The first step in determining whether a claim is sufficiently pled is to identify the elements of
that claim. See Iqbal, 555 U.S. at 675. The court should then distinguish between the pleading’s
allegations of fact and its legal conclusions: a court “must take all of the factual allegations in the
complaint as true,” but should not give legal conclusions this assumption of veracity. Iqbal, 556 U.S. at
678. The court must then decide whether the pleading’s factual allegations, when assumed true,
“plausibly give rise to an entitlement to relief.” Id. at 679. The court may not consider material beyond
the pleadings other than judicially noticeable documents, documents attached to the complaint or to
which the complaint refers extensively, or documents that form the basis of the claims. See United
States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).
III. DISCUSSION
All of Plaintiff’s claims arise out of the foreclosure of her home (the “Property”). None of
Plaintiff’s claims overcome the Motion.
First, Plaintiff failed to respond to Defendant’s arguments that her claim for fraud (second cause
of action) fails because it is not pled with the requisite specificity, and that her claims for slander of title
(fourth cause of action), unjust enrichment (fifth cause of action), unfair business practices (sixth cause
of action), violations of the Rosenthal Act (seventh cause of action), quiet title (eighth cause of action),
declaratory relief (ninth cause of action), and injunctive relief (tenth cause of action) fail either because
they are inadequately pled or because a trustee, like QLS, cannot be held liable under such claims for
foreclosure-related harms. The Court deems Plaintiff’s failure to respond to these arguments as
conceding that the claims fail. The Court also finds that QLS’s arguments are meritorious. As such, the
Motion is granted with respect to claims 2 and 4-10.
Plaintiff’s remaining claim against QLS is for wrongful foreclosure (third cause of action). A
borrower wishing to challenge a foreclosure sale must make an unconditional tender of the entirety of
the secured debt, in good faith, and with the ability to pay. Arnolds Mgmt. Corp. v. Eischen, 158
Cal.App.3d 575, 578-580 (1984); Karlsen v. Am. Sav. & Loan Assoc., 15 Cal.App.3d 112, 117 (1971).
A complaint that attacks the validity of a foreclosure sale but does not allege a proper tender fails to
state a cause of action . Karlsen, 15 Cal.App.3d at 117. The Complaint does not allege that Plaintiff is
or was ready, willing, and presently able to pay the full debt owing to redeem the Property. As a result,
Plaintiff has not stated a cause of action to set aside the foreclosure. Abdallah v. United Sav. Bank, 43
Cal.App.4th 1101, 1109 (1996). In her Opposition, Plaintiff states that she is ready, willing, and able to
make monthly payments. See Opp’n 4:26-5:1. Tendering monthly payments is not, however, a full
tender of the entirety of the secured debt, so it does not satisfy the tender requirement. As such, Plaintiff
has failed to make full tender and cannot challenge the foreclosure of the Property.
Plaintiff’s counter-argument that tender is not required because the trustee’s sale was void (not
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
Case No.

CV 13-7604 ABC (JCGx)

Date

Title

February 5, 2014

Patricia Alejandro v. Quality Loan Service Corp et al

merely voidable) is unavailing. Plaintiff contends that the foreclosure was void because QLS was never
properly substituted as a trustee under the deed of trust and therefore did not have standing to cause the
foreclosure. See Opp’n 5:28-6:8. Plaintiff does not explain why, exactly, she believes QLS was never
properly substituted, nor does she direct the Court to the relevant allegations in her lengthy Complaint.
However, the allegations that can be gleaned from the Complaint do not demonstrate that the foreclosure
was void. Plaintiff may be basing this argument on the allegation that none of the Defendants were in
possession of the promissory note. See Compl. ¶¶ 35, 63-68, 84. However, California courts have held
that nothing in California’s nonjudicial foreclosure framework requires the foreclosing beneficiary to be
in possession of the original note in order to foreclose. See Debrunner v. Deutsche Bank Nat’l Trust
Co., 204 Cal.App.4th 433, 440 (2012). Plaintiff alleges that the Defendants did not record a proper
chain of assignments (see Compl. ¶¶ 73-78, 85), but California law does not require deeds of trust to be
recorded before the trustee can commence foreclosure proceedings. Calvo v. HSBC Bank USA, N.A.,
199 Cal. App. 4th 118, 122-126 (2011). Plaintiff also alleges that the substitution of trustee is invalid
because it was robo-signed (see Compl. ¶ 12), but that conclusory allegation is not sufficient to lift
Plaintiff’s theory from speculative to plausible. See Chua v. IB Prop. Holdings, LLC, 2011 WL
3322884 *2 (C.D. Cal. 2011). Accordingly, Plaintiff’s claim for wrongful foreclosure fails because she
failed to make full tender as required to pursue this claim.
Although Plaintiff asks for leave to amend the Complaint to cure any deficiencies, none of the
deficiencies noted above can be cured by amendment. As such, amendment would be futile, so the
Complaint will be dismissed without leave to amend.
CONCLUSION
For the foregoing reason, Defendant’s Motion to Dismiss is hereby GRANTED. Plaintiff’s
Complaint is DISMISSED without leave to amend.

IT IS SO ORDERED.
:
Initials of Preparer

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