Debbad v. JPMorgan Chase Bank, et al.,

Filing 22

ORDER signed by Judge Garland E. Burrell, Jr. on 3/26/2010 GRANTING 18 Motion to Dismiss. Pltf is GRANTED leave to amend within 14 days. (Engbretson, K.)

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

SHRAVAN KUMAR DEBBAD, Plaintiff, v. JPMORGAN CHASE BANK, formerly doing business as Washington Mutual Bank; QUALITY LOAN SERVICE CORPORATION,

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2:09-cv-01998-GEB-DAD ORDER GRANTING DEFENDANT'S MOTION TO DISMISS*

Defendant JPMorgan Chase Bank, N.A. ("JPMorgan") filed a motion to dismiss Plaintiff's complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. Plaintiff has not filed an opposition to the motion or a This

non-opposition statement as required by Local Rule 230(c).

failure to comply with Local Rule 230(c) is tantamount to filing a non-opposition statement. Plaintiff alleges the following three claims in his complaint concerning the foreclosure of his property located at 7911 Hazel Avenue, Orangevale, Sacramento County, California, 95662: (1) to set aside trustee's sale; (2) to cancel trustee's sale; (3) to quiet title. Plaintiff alleges he was never served with the Notice of

argument.

This matter is deemed to be suitable for decision without oral E.D. Cal. R. 230(g). 1

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Default and that the Notice of Trustee's Sale was sent to a neighboring property. (Compl. ¶¶ 6,11.)

JPMorgan argues Plaintiff's first and second claims should be dismissed because Plaintiff has "failed to allege or make actual tender," (Mot. 5:3-4) citing Abdallah v. United Sav. Bank, 43 Cal. App. 4th 1101, 1109 (1996), and other authority for the proposition that a defaulted borrower is "required to allege tender of the amount of [the lender's] secured indebtedness in order to maintain any cause of action for irregularity in the sale procedure." Since Plaintiff's

complaint fails to contain this allegation and Plaintiff has not shown the allegation is unnecessary to plead these claims, Plaintiff's first and second claims are dismissed. JPMorgan contends Plaintiff's third claim to quiet title should be dismissed, arguing "Plaintiff has not provided a scintilla of factual support for his claim." (Mot. 10:17-18.) California Code

of Civil Procedure section 760.020 contains the elements required to be alleged to state a quiet title claim. Since Plaintiff's

"conclusory statements" and "legal conclusions" in this claim fail to allege all the pleading elements in section 760.020, this claim is dismissed. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009). Plaintiff, however, is granted leave to amend any claim that has been dismissed. Any amended pleading shall be filed within

fourteen (14) days of the date on which this order is filed. Dated: March 26, 2010

GARLAND E. BURRELL, JR. United States District Judge

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