Arvizu v. GMAC Mortgage, LLC, FKA GMAC Mortgage Corporation et al

Filing 41

ORDER on Motion to Dismiss, signed by Judge Oliver W. Wanger on 10/18/2010. Defendant shall lodge a formal order consistent with this decision within five (5) days following electronic service of this decision by the clerk. Plaintiff shall file an amended complaint within fifteen (15) days of the filing of the order. (Verduzco, M)

1 2 3 4 5 6 7 8 9 10 11 MATTHEW ARVIZU, 12 13 vs. Plaintiff, UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION Case No.: 1:10-cv-990-OWW-JLT ORDER ON MOTION TO DISMISS Date: Time: Dept: Judge: Monday, August 2, 2010 10:00 AM Courtroom 3, 7th Floor The Hon. Oliver W. Wanger

14 GMAC MORTGAGE, LLC FKA GMAC MORTGAGE CORPORATION; 15 GREENPOINT MORTGAGE FUNDING, INC.; MORTGAGE ELECTRONIC 16 REGISTRATION SYSTEMS, INC.; ETS SERVICES, LLC; EXECUTIVE TRUSTEE 17 SERVICES; CONNIE R. MELVIN d/b/a ACTION LEGAL SUPPORT SERVICE; 18 MERRITT LAW, INC.; and Does 1 to 200, inclusive, 19 . 20 21 22 23 24 25 26 27 28
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Complaint filed: March 26, 2010

The motion by Defendants GMAC Mortgage, LLC, Mortgage Electronic Registration Systems, Inc, and Executive Trustee Services, LLC (incorrectly sued as "ETS Services, LLC" and "Executive Trustee Services") (collectively, "Moving Defendants") to dismiss the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, came on for hearing in this Court on Monday, October 4, 2010. The Court ruled as follows:

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MEMORANDUM DECISION REGARDING DEFENDANTS' MOTION TO DISMISS (Doc. 6) I. INTRODUCTION.

Plaintiff Matthew Arvizu ("Plaintiff") proceeds with an action asserting eighteen causes of action against various Defendants involved in transactions related to a loan secured by Plaintiffs real property. Defendants removed this action to federal court on June 3, 2010. (Doc. 1). Defendants filed a motion to dismiss Plaintiffs complaint on June 10, 2010. (Doc. 6). Plaintiff filed opposition to the motion to dismiss on July 20, 2010. (Doc. 23). Defendants filed a reply on August 19, 2010. (Doc. 23). Defendants filed a reply on August 19, 2010. (Doc. 33). II. FACTUAL BACKGROUND.

On or about November 21, 2006, Plaintiff purchased a residence ("the Property") using funds acquired through a loan from Defendant Greenpoint. (Complaint at 7). The terms of the loan were memorialized in a promissory note, which was secured by a Deed of Trust, and Adjustable Rate Note, and Interim Interest Addendum to Note; these documents were recorded in Kern County on or about December 6, 2006. (Complaint at 7-8). The Deed of Trust identified Defendant MERS as a beneficiary as nominee for Greenpoint, Greenpoint as the servicer, and Marin Conveyancing Corp. as the Trustee. (Complaint at 8). The Deed of Trust appears to have been executed on November 21, 2006; however, the Uniform Residential Loan Application was completed on November 27, 2006. (Complaint at 8). Plaintiff contends that Greenpoint manipulated the lending process to the detriment of Plaintiff. (Complaint at 8). Plaintiff alleges he did not receive the required documents and disclosure upon consummation of the lease. (Complaint at 8). On or about March 17, 2009, a Notice of Default on the Property was recorded. The notice was signed by Maria DeBelen on behalf of "ETS Services LLC as Agent for Beneficiary." (Complaint at 8). Plaintiff alleges that he never received the Notice of Default. (Complaint at 18). Also on March 17, 2009, GMAC recorded a Substitution of Trustee purporting to designate
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ETS and Executive Trustee Services as Trustee under the Deed of Trust; in this document, MERS identified itself as the present beneficiary under the Deed of Trust. (Complaint at 17). On or about June 19, 2009, ETS and Executive recorded a Notice of Trustees Sale, stating a foreclosure sale date of July 15, 2009. (Complaint at 17). Following the sale, ETS and Executive executed a Trustees Deed Upon Sale which stated that GMAC, as foreclosing beneficiary, acquired title to the Property as grantee pursuant to the foreclosure sale. (Complaint at 18). Plaintiff alleges that GMAC is not and was not the holder of the Note, and that GMAC had no right to initiate foreclosure under the Deed of Trust. (Complaint at 18). Plaintiff alleges that Defendants engage in a pattern and practice of unlawfully foreclosing on properties. After learning of the foreclosure proceedings, Plaintiff sent GMAC a "Qualified Written Request" pursuant to 12 U.S.C. 2605(e)(1)(B); GMAC failed to respond. (Complaint at 19). III. A. Rule 12(b)(6) Dismissal under Rule 12(b)(6) is appropriate where the complaint lacks sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). To sufficiently state a claim to relief and survive a 12(b)(6) motion, the pleading "does not need detailed factual allegations" but the "[a]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Towmbly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Mere "labels and conclusions" or a "formulaic recitation of the elements of a cause of action will not do." Id. Rather, there must be "enough facts to state a claim to relief that is plausible on its face." Id. at 570. In other words, the "complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, --- U.S. ----, ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted). The Ninth Circuit has summarized the governing standard, in light of Twombly and Iqbal, as follows: "In sum, for a complaint to survive a motion to dismiss, the nonclusory 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)
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LEGAL STANDARD.

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(internal quotation marks omitted). Apart from factual insufficiency, a complaint is also subject to dismissal under Rule 12(b)(6) where it lacks a cognizable legal theory, Balistreri, 901 F.2d at 699, or where the allegations on their face "show that relief is barred" for some legal reason, Jones v. Bock, 549 U.S. 199, 215, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). In deciding whether to grant a motion to dismiss, the court must accept as true all "wellpleaded factual allegations" in the pleading under attack. Iqbal, 129 S.Ct. at 1950. A court is not, however, "required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). "When ruling on a Rule 12(b)(6) motion to dismiss, if a district court considers evidence outside the pleadings, it must normally convert the 12(b)(6) motion into a Rule 56 motion for summary judgment, and it must give the nonmoving party an opportunity to respond." United States v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003). "A court may, however, consider certain materials--documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice--without converting the motion to dismiss into a motion for summary judgment." Id. at 908. B. Rule 9(b) Rule 9(b) imposes an elevated pleading standard with respect to certain claims. Rule 9(b) provides: In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a persons mind may be alleged generally. "To comply with rule 9(b), allegations of fraud must be specific enough to give defendants notice of the particular misconduct which is alleged to constitute the fraud." Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir. 2007) (internal quotation marks omitted). Allegations of fraud must include the "time, place, and specific content of the false representations as well as the identities of the parties to the misrepresentations." Id. (internal quotation marks omitted). The "[a]verments of fraud must be accompanied by the who, what, when, where, and how of the misconduct charged." Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir. 2009) (internal
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quotation marks omitted). A plaintiff alleging fraud "must set forth more than the neutral facts necessary to identify the transaction. The plaintiff must set forth what is false or misleading about a statement, and why it is false." Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003) (emphasis and internal quotation marks omitted). IV. DISCUSSION.

Defendants advance two arguments that are generally applicable to all of Plaintiffs claims. First, Defendants contend that this entire action should be dismissed because Plaintiff lacks standing due to a Chapter 7 petition filed in the Bankruptcy Court after the complaint was filed. However, on September 27, 2010, Plaintiffs Bankruptcy case closed. As Plaintiff has received his discharge and the bankruptcy proceeding is now closed, Defendants argument that the complaint should be dismissed for lack of standing so that the Chapter 7 trustee can be substituted as Plaintiff is now moot. Second, Defendants contend that many, if not all, of Plaintiffs claims are barred by the doctrine of collateral estoppel. Defendants ask the court to take judicial notice of a judgment entered by the California Superior Court in connection with GMACs unlawful detainer action against Plaintiff. Defendants contend that the issues raised in this action were or should have been raised in the unlawful detainer trial. Although the court may take judicial notice of the fact that GMAC obtained a judgment against Plaintiff, there is no written decision from the Superior Court from which the court can determine what issues were actually litigated in the unlawful detainer action. Nor is Plaintiffs answer to the unlawful detainer complaint before the court. Because unlawful detainer proceedings in California are generally limited in scope, the court cannot say that Plaintiffs claims in this case are precluded as a matter of law: As a general rule, in unlawful detainer proceedings, only claims bearing directly upon the right to possession are involved. However...courts must make a limited inquiry into the basis of the plaintiffs title... [W]here the plaintiff in the unlawful detainer action is the purchaser at a trustees sale, he or she need only prove a sale in compliance with the statute and deed of trust, followed by purchase at such sale, and the defendant may raise objections only on that phase of the
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issue of title. Matters affecting the validity of the trust deed or primary obligation itself, or other basic defects in the plaintiffs title, are neither properly raised in this summary proceeding for possession, nor are they concluded by the judgment. Old Nat'l Fin. Servs. V. Seibert, 194 Cal.App.3d 460, 465 (Cal. Ct. App. 1987). The record is insufficient to determine that all of Plaintiffs claims are barred by collateral estoppel. A. Plaintiff's TILA1 Claim Plaintiff seeks recision of the underlying loan transaction pursuant to 15 U.S.C. § 1635 as well as statutory damages and costs pursuant to U.S.C. § 1635 as well as statutory damages and costs pursuant to U.S.C. § 1640(a). (Complaint at 20-22). Plaintiffs TILA claim is based on defendants alleged failure to provide required disclosures and for placing "terms prohibited by statute into the transaction." (Complaint at 22). Defendants assert correctly that Plaintiffs TILA claims are time barred. The right of rescission provided by section 1635 expires three years after the date of consummation of the transaction or upon the sale of the property, whichever occurs first. 15 U.S.C. § 1635(f). Based on the allegations of the complaint and judicially noticeable documents contained in the record, the Property at issue in this action was sold in a foreclosure sale on July 15, 2009. Accordingly, Plaintiff does not have a valid claim for recision under section 1635, and Plaintiff may not cure the deficiency of his recision claim with an amended complaint. Id.; Miguel v. Country Funding Corp, 309 F.3d 1161, 1164 (9th Cir. 2002) ("section 1635(f) represents an ,,absolute limitation on rescission actions"). Plaintiffs recision claim is DISMISSED, with prejudice. Plaintiffs claim for statutory damages and costs is also foreclosed by the allegations of the complaint and judicially noticeable documents in the record. An action for statutory damages and costs pursuant to section 1640 must be brought within one year from the date of the occurrence of the TILA violation. 15 U.S.C. § 1640(e). The TILA violations alleged in the complaint concern disclosure violations which occurred in November 206. (Complaint at 8; 21-

The Truth in Lending Act, 15 U.S.C. § 2601 et seq.
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22). Accordingly, Plaintiffs claim is time barred, as it was not brought within one year of the alleged violations. Plaintiffs contention that the statute of limitations began to run when Defendants allegedly failed to respond to the recision demand Plaintiff sent in October of 2009 lacks merit. First, the complaint does not clearly allege a TILA violation based on the October 2009 recision demand. More importantly, however, Plaintiff had no right to recision in October 2009. The July 15, 2009 foreclosure sale extinguished Plaintiffs right to recision. 15 U.S.C. § 1635(f). Plaintiffs claim for damages and costs under section 1640 is DISMISSED, with prejudice. B. Plaintiff's RESPA2 Claim Defendant contends that Plaintiffs RESPA claim is time-barred, and that the complaint fails to properly plead damages in connection with the alleged RESPA violation. Plaintiff responds that he is entitled to equitable tolling, and that "damages will be determined at trial." (Opposition at 7-8). The nature of Plaintiffs RESPA claim is unclear, but Plaintiffs opposition indicates that the RESPA violations occurred at the time of "closing." (See Opposition at 7). To the extent Plaintiffs claim was not filed within the applicable statute of limitations, Plaintiffs conclusory assertion of equitable tolling is insufficient; the complaint must allege facts sufficient to support the contention that equitable tolling should apply. In any event, to the extent Plaintiff has a RESPA claim that is not time-barred, such claim be dismissed because the complaint does not properly allege any damages. Plaintiffs opposition states that "damages will be determined at trial;" this statement is tantamount to a tacit concession that the complaint does not allege any damages in connection with Defendants alleged violation of the notice requirements set forth in 12 U.S.C. § 2605, and no damages are alleged within the four corners of the complaint. Plaintiffs claim for statutory damages of $1,000.00 pursuant to 12 U.S.C. § 2605(1)(B) is insufficient, as the complaint does not allege facts sufficient to give rise to the inference that Defendants engage in a pattern or

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The Real Estate Settlement Procedures Act, 12 U.S.C. § 2601 et seq.
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practice of noncompliance with RESPA. See 12 U.S.C. § 2605(1)(B) (plaintiffs may recover "any additional damages, as the court may allow, in the case of a pattern or practice of noncompliance with the requirements of this section, in an amount not to exceed $ 1,000"). Plaintiffs RESPA claim is DISMISSED, without prejudice. C. Plaintiff's Debt Collection Claims Plaintiff contends that Defendants violated Californias Rosenthal Fair Debt Collection Practices Act ("RFDCPA") and the federal Fair Debt Collection Practices Act (FDCPA) by foreclosing on Plaintiffs property, filing an unlawful detainer action, falsely stating the amount of debt, and increasing the amount of the debt by including amounts not permitted by law or contract. (Complaint at 23). Plaintiffs contentions regarding misrepresentation and inflation of the amount of debt at issue are not supported by sufficient factual allegations in the complaint. Further, foreclosing on a property pursuant to a deed of trust is not debt collection within the meaning of the RFDCPA or the FDCA. See Izenberg v. ETS Servs., LLC, 589 F.Supp.2d 1193, 1198-99 (C.D. Cal. 2008); Ines v. Countrywide Home Loans, Inc., 2008 U.S. Dist. LEXIS 88739, 2008 WL 4791863, at *2 (S.D. Cal. Nov. 3, 2008). The complaint fails to allege facts sufficient to support the inference that Defendants are "debt collectors." Plaintiffs argument that because the foreclosure proceeding was invalid, all the Defendants conduct constituted "debt collection" lacks merit because, inter alia, the complaint does not allege sufficient facts to establish the illegality of the foreclosure proceeding. Plaintiffs debt collection claims are DISMISSED, without prejudice. D. Plaintiff's Title Related Claims As Plaintiff concedes, Plaintiffs claims for wrongful foreclosure, quiet title, to set aside trustees sale, and cancellation of the trustees deed are deficient because the complaint does not allege an offer to tender. (Opposition at 9). It is undisputed that these claims must be dismissed. The only question is whether Plaintiff should be given leave to amend. To the extent that any of these claims are based solely on Plaintiffs argument that only a holder of the promissory note may enforce its terms or the terms of the deed of trust, the claims are untenable. See, e.g., Castaneda v. Saxon Mortgage Servs., Inc., 687 F.Supp.2d 1191, 1201
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(E.D. Cal. 2009) ("Under California law, there is no requirement for the production of the original note to initiate a non-judicial foreclosure"). Additionally, any claims premised on the argument that the foreclosure sale was not performed in compliance with the relevant California statutory authority or with the Deed of Trust are precluded by the prior judgment issued against Plaintiff in the unlawful detainer action. See Wood v. Herson, 39 Cal.App.3d 737, 743-744 (Cal.Ct.App. 1974) (discussing application of collateral estoppel as applied to judgment in unlawful detainer actions). Plaintiff will be given one opportunity to plead cognizable claims. E. Slander of Title Claim Slander of title occurs when a person, without a privilege to do so, publishes a false statement that disparages title to property and causes pecuniary loss. Trust Ins. Exch. V. Bennett, 53 Cal.App.4th 75, 84 (Cal.Ct.App. 1997). "The elements of the tort are (1) publication, (2) absence of justification, (3) falsity and (4) direct pecuniary loss." Id. (citation omitted). Although the complaint alleges that Defendants recording of the Notice of default, Notice of Trustees Sale, and Trustees deed was "improper," (Complaint at 27), the complaint fails to allege facts sufficient to support the inference that the publications were false. The complaint also fails to allege that Plaintiff suffered direct pecuniary loss as a result of the publications. As Defendants point out, the apparent basis for Plaintiffs slander of title claim is Plaintiffs argument concerning possession of the Note at the time of the "improper" publications. Plaintiffs opposition to the motion to dismiss states "if allowed to amend, Plaintiff will eliminate the Slander of Title cause of action." (Opposition at 12). Plaintiffs slander of title claim is DISMISSED, with prejudice. F. Civil Conspiracy Claim The complaint asserts a cause of action for "civil conspiracy." (Complaint at 28-29). There is no stand alone cause of action for civil conspiracy recognized by California law. E.g. Grisham v. Philip Morris U.S.A., Inc., 40 Cal.4th 623, 632 (Cal. 2007) (citing Applied Equipment Corp. v. Litton Saudi Arabia Ltd. 7 Cal.4th 503, 510-511 (Cal. 1994)). This claim is DISMISSED without prejudice.
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G.

UCL Claims3 The complaint alleges "Plaintiff is informed and believes...that Defendants committed

unlawful, unfair, and/or fraudulent business practices as defined by California Business and Professions Code § 17200" ("UCL claims"). (Complaint at 29). Plaintiffs conclusory allegations do not give Defendants fair notice of the nature of Plaintiffs claim. California law prohibits unfair competition including "any unlawful, unfair or fraudulent business act or practice." Cal. Bus. & Prof. Code § 1700 et seq. Because the statute is written in the disjunctive, it applies separately to business acts or practices that are (1) unlawful, (2) unfair, or (3) fraudulent. See Pastoria v. Nationwide Ins., 112 Cal.App.4th 1490, 1496 (Cal.Ct.App. 2003). Each prong of the UCL is a separate and distinct theory of liability. See id. Plaintiffs UCL allegations do not specify the basis for his claim--i.e., whether it is based on an unlawful, unfair, or fraudulent practice--let alone state, with reasonable particularity, the facts supporting the statutory elements of the violation. Second, to the extent Plaintiff asserts a UCL claim based on a violation of other law, his complaint fails to state a claim for a violation of RESPA, the RFDCPA, or any other law. Accordingly, to the extent the UCL claim is predicated on the violation of other law, it is insufficiently pled. Third, to the extent Plaintiff asserts a UCL claim that is based on or grounded in fraud, it must meet the requirements of Rule 9(b), which it does not. The complaint fails to specify what particular role each Defendant played in any alleged fraud. Plaintiffs UCL claim is DISMISSED, without prejudice. H. Plaintiff's RICO Claims Plaintiffs RICO claims are based on Defendants alleged scheme to wrongfully foreclose on Plaintiffs property. (Complaint at 30-35). To the extent that Plaintiffs RICO claims rely on the predicate act of initiating a foreclosure without having possession of the Note, Plaintiffs claims are untenable. See, e.g., Castaneda, 687 F.Supp.2d at 1201 (E.D. Cal. 2009) ("Under California law, there is no requirement for the production of the original note to initiate a nonjudicial foreclosure"). Plaintiff conclusory allegation that Defendants attempted to acquire the

3

California Business and Professions Code § 17200 et seq.
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subject Property through "deception and fraud" is not supported by sufficient factual allegations. Plaintiffs RICO claims are dismissed, without prejudice. I. Plaintiff's Fraud Claim Plaintiffs fraud claim fails to comply with the requirements of Federal Rule of Civil Procedure 9. Plaintiff attempts to simply incorporate the preceding 139 paragraphs of the complaint and asserts boilerplate language tracking the elements of fraud. (Complaint at 36). Plaintiff tacitly concedes that the complaint should be amended "to provide more specificity...including the actions of each defendant, the type of actions, and when those actions occurred." (Opposition at 11). Plaintiffs fraud claim is DISMISSED, without prejudice. J. Claims Based on California Civil Code §§ 2923.5 and 2923.6 California Civil Code section 2923.5 requires, before a notice of default may be filed, that a lender contact the borrower in person or by phone to "assess" the borrowers financial situation and "explore" options to prevent foreclosure. Mabry v. Superior Court, 185 Cal.App.4th 208, 204 (Cal.Ct. App. 2010). The right of action provided by section 2923.5 is limited to obtaining a postponement of an impending foreclosure to permit the lender to comply with section 2923.5. As the complaint alleges that the Property ahs already been sold in a foreclosure sale, Plaintiffs claim under section 2923.5 is moot and is DISMISSED with prejudice. Unlike section 2923.5, section 2923.6 does not require lenders to take any action. Id. at 211 n.9. Plaintiff has no cause of action under section 2923.6. Plaintiffs claim is DISMISSED with prejudice. ORDER For the reasons stated, IT IS ORDERED: 1) 2) 3) Plaintiffs TILA claims are DISMISSED, with prejudice; Plaintiffs RESPA claim is DISMISSED, without prejudice; Plaintiffs debt collection claims under Californias RFDCPA and the federal

FDCPA are DISMISSED, without prejudice; 4) Plaintiffs claims for unlawful foreclosure, quiet title, to set aside trustees sale,
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and for cancellation of the trustees deed are DISMISSED, without prejudice;
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5) 6) 7) 8) 9) 10)

Plaintiffs slander of title claim is DISMISSED, with prejudice; Plaintiffs civil conspiracy claim is DISMISSED, without prejudice; Plaintiffs UCL claims are DISMISSED, without prejudice; Plaintiffs RICO claims are DISMISSED, without prejudice; Plaintiffs fraud claim is DISMISSED, without prejudice; Plaintiffs Claims Based on California Civil Codes §§ 2923.5 and 2923.6 are

DISMISSED, with prejudice, and 11) Defendant shall lodge a formal order consistent with this decision within five (5)

days following electronic service of this decision by the clerk. Plaintiff shall file an amended complaint within fifteen (15) days of the filing of the order. Defendant shall file a response within fifteen (15) days of receipt of the amended complaint.

IT IS SO ORDERED. Dated:

October 18, 2010
DEAC_Signature-END:

/s/ Oliver W. Wanger
UNITED STATES DISTRICT JUDGE emm0d64h

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