Figueiredo v. Aurora Loan et al

Filing 37

ORDER Signed by Magistrate Judge Bernard Zimmerman on 3/15/2010 Granting in Part & Denying in Part re 23 Motion to Dismiss, and Denying without prejudice Defendant's Motion to Expunge the lis pendens: Defendant's Motion to Dismiss is Gran ted Without Leave to Amend as to Plaintiff's Fourth Cause of Action. Defendant's Motion is Granted With Leave to Amend as to the remaining of action. Plaintiff shall file an Amended Complaint by 3/25/2010. Defendant's Motion to Expunge the lis pendens is Denied Without Prejudice to being renewed if defendant moves to dismiss plaintiff's amended complaint & Vacating Hearing Scheduled for 3/17/2010. (bzsec, COURT STAFF) (Filed on 3/15/2010)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. AURORA LOAN, et al., Defendant(s). SALLY FIGUEIREDO, Plaintiff(s), ) ) ) ) ) ) ) ) ) ) ) UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

No. C 09-4784 BZ ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

Before the Court is defendant's motion to dismiss plaintiff's first amended complaint ("complaint") under Federal Rule of Civil Procedure 12(b)(6) and to expunge a lis pendens under California Code of Civil Procedure Section 405.31. issues. The complaint fails to address several threshold Finding no need for oral argument, defendant's motion

to dismiss is GRANTED with leave to amend IN PART and GRANTED without leave to amend IN PART. Defendant's motion to expunge

the lis pendens is DENIED WITHOUT PREJUDICE. The complaint alleges five causes of action: (1) violation of California Civil Code § 2923.5; (2) fraud; (3) intentional misrepresentation; (4) violation of California 1

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Civil Code § 2323.6; and (5) violation of California Civil Code § 1572.1 Plaintiff originally sought modification of a Since

mortgage secured by a piece of residential property.

plaintiff filed this complaint, the property has been sold at a trustee's sale. Plaintiff's first cause of action suffers from at least one basic defect. Section 2923.5 of the Civil Code only

applies to "mortgages or deeds of trust recorded from January 1, 2003, to December 31, 2007, inclusive, that are secured by owner-occupied residential real property . . . . `owner-occupied' means that the residence is the principal residence of the borrower as indicated to the lender in loan documents." Cal. Civ. Code § 2923.5(i) (emphasis added). The

complaint does not allege that the subject piece of property was ever "owner-occupied." in its motion to dismiss. Defendant pointed out this defect Motion at 3.

Plaintiff, in her opposition, does not counter this argument and instead asks the court to presume that the property was owner-occupied simply because she "alleged that she is protected under" the statute. much of a bootstrap. Opp. at 5. This is too

Plaintiff's failure to allege whether

the property was owner-occupied can be solved by simply stating so in the complaint. It is plaintiff's obligation to

plead facts sufficient to state a plausible claim for relief.

As filed, plaintiff's first amended complaint omits pages 11-14. Doc. No. 20. Defendant's motion does not address any of the causes of action contained in the missing pages, including the second and third causes of action. Plaintiff refiled the complete complaint after this motion was fully briefed. Doc. No. 35. 2

1

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See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1955 (2009).

The

Court will not presume facts that plaintiff failed to allege in order to defeat a motion to dismiss. If plaintiff cannot

allege that the property was owner-occupied consistent with her obligations under Rule 11, then plaintiff cannot state a cause of action under Section 2923.5. Defendant's preemption argument and other challenges to the first cause of action are best resolved after plaintiff addresses the Court's concern about owner-occupancy. Plaintiff's fourth cause of action for violation of Section 2923.6 of the Civil Code fails because that section does not provide a private right of action to borrowers. See

Reynoso v. Chase Home Finance, 2009 WL 5069140, *4-5 (N.D.Cal 2009) and cases collected therein. Plaintiff has not cited,

and this Court has not found, a single case holding that a borrower has a private right of action under this section. This cause of action is DISMISSED WITHOUT LEAVE TO AMEND. The fifth cause of action under Civil Code Section 1572 presents the same problem as the second and third causes of action. Plaintiff argues that this cause of action

incorporates paragraphs 32-50 and 63-69 of the complaint. Paragraphs 32-50 were not included in the operative version of the complaint. IT IS ORDERED that defendant's motion to dismiss is GRANTED WITHOUT LEAVE TO AMEND as to plaintiff's FOURTH cause of action. Defendant's motion is GRANTED WITH LEAVE TO AMEND Plaintiff SHALL file an

as to the remaining causes of action.

amended complaint by MARCH 25, 2010. Defendant's motion to 3

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expunge the lis pendens is DENIED WITHOUT PREJUDICE to being renewed if defendant moves to dismiss plaintiff's amended complaint. VACATED. Dated: March 15, 2010 Bernard Zimmerman United States Magistrate Judge
G:\BZALL\-BZCASES\FIGUEIREDO V. AURORA LOAN\DISM ORD.wpd

The hearing scheduled for MARCH 17, 2010 is

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