Jang et al v. 1st United Bank et al

Filing 28

ORDER signed by Judge John A. Mendez on 7/19/12 GRANTING 12 Motion to Dismiss as follows: Plaintiffs' claims for Violation of the Truth in Lending Act, violations of the Real Estate Settlement Procedures Act and violations of the Fair Credit Reporting Act are dismissed with prejudice; the court declines to exercise jurisdiction over the remaining state law claims and dismisses these claims without prejudice. CASE CLOSED. (Manzer, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KWANG JANG and AMY JANG,
Plaintiffs,

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v.

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1st UNITED BANK, formerly
Republic Federal Bank, N.A.,
formerly Hemisphere National
Bank, et al.

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Defendants.

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Case No. 2:11-CV-02427-JAM-GGH
ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS

This matter comes before the Court on Defendants 1st United

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Bank, formerly Republic Federal Bank, N.A., formerly Hemisphere

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National Bank, Mortgage Electronic Registration Systems, Inc.

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(“MERS”) and U.S. Bank, N.A., as trustee for Morgan Stanley

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Mortgage Loan Trust 2006-1 AR’s (collectively “Defendants”) Motion

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to Dismiss (Doc. #12) Plaintiffs Amy and Kwang Jang’s

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(“Plaintiffs”) Complaint (Doc. #2), pursuant to Federal Rule of

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Civil Procedure 12(b)(6).

Plaintiffs oppose Defendants’ motion.1

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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was originally
scheduled for May 2, 2012.
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For the reasons set forth below, Defendants’ Motion to Dismiss
is granted.

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I.

FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

This action arises out of a nonjudicial foreclosure of real

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property located at 840 Wedgewood Court in West Sacramento,

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California (“Subject Property”).

See Plaintiffs’ Complaint, Doc.

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#2 (“Comp.”) at ¶¶ 1, 42, 48-49.

In November 2005, Plaintiffs

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borrowed an unspecified amount from an unspecified lender, which

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was secured by the Subject Property.

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subsequently defaulted on the loan sometime in November 2009, after

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their March 2009 application for a loan modification was rejected.

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Id. at ¶¶ 25-28, 33.

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default, and they subsequently applied again for a loan

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modification.

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“Yuriko” at 1st United Bank that they had been approved for a

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modification, the modified payments were even higher than the

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existing payments Plaintiffs already could not afford.

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38-39.

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principle owed, were denied.

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February 2011, various defendants began the foreclosure process.

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Id. at ¶¶ 42-61.

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Id. at ¶¶ 22.

Plaintiffs

Plaintiffs received a letter regarding their

Id. at ¶¶ 33-38.

Although Plaintiffs were told by

Id. at ¶¶

Plaintiffs’ continued requests to the bank, to reduce the
Id. at ¶ 40.

Sometime in January or

Through this suit, Plaintiffs “are seeking to discover who

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owns their home and has the authority to modify it [sic].”

Comp.

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at ¶ 21.

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neglected to work with [them] in any reasonable way to avoid

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foreclosure . . . ,” and “purposefully deceived” them in wrongfully

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foreclosing on the Subject Property; for these reasons, Plaintiffs

Plaintiffs allege Defendants “failed, refused and/or

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allege they are entitled to equitable and monetary relief on their

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nine asserted causes of action.

Id. at ¶¶ 193-197.

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On May 1, 2012, this Court issued an Order to Show Cause

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regarding Plaintiffs’ failure to serve named Defendants First

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American Title and Cal-Western Reconveyance Corporation.

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Because Plaintiffs did not respond to this Court’s Order, on May

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14, 2012, this Court Ordered First American Title and Cal-Western

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Reconveyance Corporation dismissed from this action pursuant to

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Federal Rule of Civil Procedure 4(m).

Doc. #26.

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II.

OPINION

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A.

Legal Standard

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A party may move to dismiss an action for failure to state a

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claim upon which relief can be granted pursuant to Federal Rule of

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Civil Procedure 12(b)(6).

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court must accept the allegations in the complaint as true and draw

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all reasonable inferences in favor of the plaintiff.

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Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by

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Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319,

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322 (1972).

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are not entitled to the assumption of truth.

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556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550

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U.S. 544, 555 (2007)).

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needs to plead “enough facts to state a claim to relief that is

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plausible on its face.”

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appropriate where the plaintiff fails to state a claim supportable

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by a cognizable legal theory.

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901 F.2d 696, 699 (9th Cir. 1990).

In considering a motion to dismiss, the

Scheuer v.

Assertions that are mere “legal conclusions,” however,
Ashcroft v. Iqbal,

To survive a motion to dismiss, a plaintiff

Twombly, 550 U.S. at 570.

Dismissal is

Balistreri v. Pacifica Police Dep’t,

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Upon granting a motion to dismiss for failure to state a

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claim, the court has discretion to allow leave to amend the

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complaint pursuant to Federal Rule of Civil Procedure 15(a).

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“Dismissal with prejudice and without leave to amend is not

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appropriate unless it is clear . . . that the complaint could not

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be saved by amendment.”

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316 F.3d 1048, 1052 (9th Cir. 2003).

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B.

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Motion to Dismiss2
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Federal Claims for Relief
a.

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Eminence Capital, L.L.C. v. Aspeon, Inc.,

Violations of the Truth in Lending Act (“TILA”)

In their Complaint, Plaintiffs allege “Defendants failed to

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include and disclose certain charges in the finance charge shown on

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the TILA statement,” in violation of 15 U.S.C. § 1601, et seq., and

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seek both rescission and damages.

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argue that Plaintiffs’ TILA claim must be dismissed because it is

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barred by the applicable statute of limitations.

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Motion to Dismiss, Doc. #12 (“MTD”) at pg. 22-23.

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Comp. at ¶¶ 198-202.

Defendants

See Defendants’

The statute of limitations for a claim under TILA is one year

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for damages and three years for rescission, see 15 U.S.C. §

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1640(e), and as Defendants correctly note, Plaintiffs’ Complaint

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was filed well outside both.

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Plaintiffs acknowledge their TILA claim was filed outside of the

See Defs’ MTD at pg. 22-23.

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The Court notes with great concern that all nine of Plaintiffs’
causes of action, as pled in their complaint, are identical or
substantially similar to those contained in other complaints filed
by Plaintiffs’ former attorney in the Eastern District, all of
which have been dismissed for failure to state a claim. Compare,
e.g., Von Brincken v. Mortgageclose.com Inc., et al., 2011 WL
2621010 (E.D. Cal. June 30, 2011), 10-cv-02153 JAM-KJN, Docs. #1,
12, 62, 74, with Comp.; see also Hall v. Mortgage Investors Group,
2011 WL 4374995 (E.D. Cal. Sept. 19, 2011). Boilerplate or “cut
and paste” pleadings are strongly discouraged by this Court,
particularly pleadings that contain claims previously dismissed.
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statute of limitations, but argue that this Court “should exercise

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its discretion and use its equitable power in order to toll the

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statute of limitations” because Plaintiffs, as lay persons, with

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“no experience in investment banking, securities dealing, or

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mortgage lending would not have been able to discover Defendants’

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actions within the applicable statute[] of limitations.”

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Plaintiffs’ Opposition to Defendants’ Motion to Dismiss, Doc. #23

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(“OPP”) at pg. 4-5.

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In the Ninth Circuit, “[e]quitable tolling may be applied if,

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despite all due diligence, a plaintiff is unable to obtain vital

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information bearing on the existence of his claim.”

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Pacific Bell, 202 F.3d 1170, 1178 (9th Cir. 2000) (citing Holmberg

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v. Armbrecht, 327 U.S. 392, 397 (1946)).

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Santa Maria v.

Importantly:

[E]quitable tolling does not depend on any wrongful
conduct by the defendant to prevent plaintiff from suing.
Instead it focuses on whether there was excusable delay
by the plaintiff. If a reasonable plaintiff would not
have known the existence of a possible claim within the
limitations period, then equitable tolling will serve to
extend the statute of limitations for filing suit until
plaintiff can gather what information he needs.

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Id. (citing Thelen v. Marc’s Big Boy Corp., 64 F.3d 264, 268 (7th

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Cir. 1995)) (other citations omitted).

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devoid of facts demonstrating that they exercised due diligence in

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attempting to uncover information regarding their claims or

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explaining why it was reasonable for them to not have known of the

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existence of their claim.

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Plaintiffs do not direct the Court to any portion of the Complaint

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to support their argument that the statute of limitations should be

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tolled.

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regarding equitable tolling lack the requisite factual specificity

OPP at pg. 4-5.

Plaintiffs’ Complaint is

See Comp. at ¶¶ 181-89.

Tellingly,

Plaintiffs’ conclusory statements

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to withstand Defendants’ Motion to Dismiss, and therefore,

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Plaintiffs’ TILA claim is dismissed.

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Mortgageclose, et al., 2011 WL 2621010 at *2-3 (E.D. Cal. June 30,

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2011) (finding the plaintiff’s federal claims were barred by the

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statute of limitations, as plaintiff had failed to plead facts

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supporting the application of equitable tolling in his second

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amended complaint).

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See Von Brincken v.

The Court further finds that allowing Plaintiffs leave to
amend their TILA claim would be futile for two reasons.

First, in

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their Motion to Dismiss, Defendants address several other cases

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brought by Plaintiffs’ former attorney, where allegations identical

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to Plaintiffs’ regarding equitable tolling were found to be

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insufficient at the pleading stage.

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inter alia, Shapiro v. Bank of America, N.A., 2011 WL 4851145 (E.D.

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Cal. 2011)).

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Opposition, and instead simply argue that their claim was

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adequately pled.

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Defendants’ argument regarding prior dismissals on identical

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pleadings demonstrates that there are no facts in this case that

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would require the statute of limitations to be tolled.

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Rodriguez v. Wells Fargo Bank, N.A., 2011 WL 2946381 (E.D. Cal.

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Jul. 21, 2011).

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Plaintiffs ask this court to grant them leave to amend if it finds

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that any claims are insufficiently pled.

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Plaintiffs give no indication of what more they could plead to

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state a claim under TILA, signaling that indeed there are no

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additional facts Plaintiffs could include in their Complaint if

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they were granted leave to amend.

MTD at pg. 22-23 (citing,

Plaintiffs do not respond to this in their

OPP at pg. 4-6.

Plaintiffs’ failure to rebut

See

Second, on the last page of their Opposition,

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OPP at pg. 10.

However,

See, e.g., Rodriguez, 2011 WL

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2946381 (granting defendants’ motion to dismiss without leave to

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amend because plaintiff’s attorney had previously filed identical

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complaints that did not satisfy Rule 8’s pleading standard).

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these reasons, Plaintiffs’ claim under TILA for rescission and

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damages is dismissed with prejudice.

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b.

For

Violations of RESPA

Plaintiffs allege that Defendants violated the Real Estate

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Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2607, by

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“accept[ing] charges for the rendering of real estate services

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which were in fact charges services [sic] other than those actually

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performed.”

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Comp. at ¶ 205.

RESPA proscribes referral fees or fee splitting “in connection

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with a transaction involving federally related mortgage loan.”

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U.S.C. § 2607(a), (b).

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Plaintiffs’ RESPA claim is barred by the one-year statute of

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limitations.

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same argument regarding the application of equitable tolling as he

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did with his TILA claim, and it is defective for the same reasons

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stated above.

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claim is dismissed.

As Defendants correctly point out,

MTD at pg. 24; 12 U.S.C. § 2614.

See supra at B.1.a.

Plaintiff makes the

Accordingly, Plaintiffs’ RESPA

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The Court further finds that allowing Plaintiffs leave to

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amend their RESPA claim in this case would be futile, for the same

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reasons leave to amend Plaintiffs’ TILA claim was denied.

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supra at B.1.a.; see also Rodriguez, 2011 WL 2946381.

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Plaintiffs’ RESPA claim is dismissed with prejudice.

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c.

See

Accordingly,

Violations of FCRA

Plaintiffs allege that Defendants violated the Fair Credit
Reporting Act (“FCRA”), 15 U.S.C. § 1681, by “wrongfully,
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improperly, and illegally report[ing] negative information as to

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[the Plaintiff] to one or more credit reporting agencies . . . .”

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Comp. at ¶ 209.

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There is a private right of action for violations of section

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1681(S)(2()(b) of the FRCA.

Matracia v. JP Morgan Chase Bank, 2011

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WL 1833092 at *3 (E.D. Cal. May 12, 2011).

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such a claim, a plaintiff must allege that she had a dispute with a

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credit reporting agency regarding the accuracy of an account, that

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the credit reporting agency notified the furnisher of the

However, to succeed on

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information, and that the furnisher failed to take the remedial

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measures outlined in the statute.

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argue, Plaintiffs have not pled any facts supporting the elements

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of a cause of action under FCRA, and Plaintiffs do not rebut this

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charge by pointing the Court to any facts pled in their Complaint

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substantiating the FCRA claim.

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Accordingly, Plaintiffs’ FCRA claim must be dismissed.

Id.

As Defendants properly

MTD at pg. 24; OPP at pg. 6-7.

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Plaintiffs’ attorney has previously pled claims under FCRA

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that this Court has repeatedly found fail under Federal Rule of

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Civil Procedure 12(b)(6).

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Group, 2011 WL 4374995 (E.D. Cal. Sept. 19, 2011).

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with the fact that Plaintiffs simply argue that their claim was

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adequately pled, demonstrate that allowing Plaintiffs leave to

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amend their FCRA claim would be futile.

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2946381.

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with prejudice.

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See, e.g., Hall v. Mortgage Investors
This, coupled

See Rodriguez, 2011 WL

For these reasons, Plaintiffs’ FCRA claim is dismissed

2.

State Law Claims for Relief

Plaintiffs assert six causes of action against Defendants
under California law for fraud, unjust enrichment, civil RICO
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violations, breach of security instrument, wrongful foreclosure,

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and to quiet title.

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claims under federal law have been dismissed without leave to

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amend.

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See Comp.

As set forth above, Plaintiffs’

The Court has discretion to “decline to exercise supplemental

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jurisdiction over [state law claims] if: . . . (3) [it] has

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dismissed all claims over which it has original jurisdiction . .

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. ,” id. at § 1367(c), and it is appropriate to remand for lack of

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subject matter jurisdiction “at any time before final judgment . .

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. .”

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Court exercises its discretion to decline supplemental jurisdiction

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over Plaintiffs’ remaining claims, which all arise under state law.

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Accord Keen v. American Home Mortgage Servicing, Inc., 2010 WL

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624306, at *1 (E.D. Cal. Feb. 18, 2010) (“In the usual case in

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which federal law claims are eliminated before trial, the balance

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of factors will point toward declining to exercise jurisdiction

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over the remaining state law claims.”) (internal citations

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omitted).

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Id. at § 1447(c).

Pursuant to 42 U.S.C. section 1367, this

Accordingly, this Court will not address the merits of the
remaining issues raised in Defendants’ Motion to Dismiss.

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III. ORDER

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After carefully considering the papers submitted in this

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matter, it is hereby ordered that Defendants’ Motion to Dismiss is

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GRANTED, as follows:

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1.

Plaintiffs’ claim for violations of the Truth in Lending

Act is dismissed with prejudice;
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2.

Plaintiffs’ claim for violations of the Real Estate

Settlement Procedures Act is dismissed with prejudice; and
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Plaintiffs’ claim for violations of the Fair Credit

Reporting Act is dismissed with prejudice.
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This Court declines to exercise supplemental jurisdiction

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over Plaintiffs’ remaining state law claims and dismisses these

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claims without prejudice.

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The Clerk shall close this case.

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IT IS SO ORDERED.

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Dated: July 19, 2012

____________________________
JOHN A. MENDEZ,
UNITED STATES DISTRICT JUDGE

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