Vazquez v. Select Portfolio Servicing, et al.

Filing 70

ORDER OF DISMISSAL by Judge Jon S. Tigar, granting 59 Motion to Dismiss; granting 60 Motion to Dismiss; denying 69 Motion to Forward Case. (Attachments: # 1 Certificate/Proof of Service) (wsn, COURT STAFF) (Filed on 5/21/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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R. IVANNE VAZQUEZ,

Case No. 13-cv-03789-JST

Plaintiff,
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v.

ORDER OF DISMISSAL

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SELECT PORTFOLIO SERVICING, et al.,

Re: ECF Nos. 59, 60, 69

Defendants.

United States District Court
Northern District of California

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In this action by a homeowner challenging a foreclosure, Defendants California

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Reconveyance Company (“CRC”), ECF No. 60 (“CRC Mot.”), and Select Portfolio Servicing

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(“SPS”), ECF No. 59 (“SPS Mot.”) move to dismiss the First Amended Complaint. The Court

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previously dismissed the complaint for failure to state a claim upon which relief can be granted.

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ECF No. 49. The Court will grant the instant motions to dismiss without leave to amend.

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On a motion to dismiss, courts accept the material facts alleged in the complaint, together

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with reasonable inferences to be drawn from those facts, as true. Navarro v. Block, 250 F.3d 729,

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732 (9th Cir. 2001). However, “the tenet that a court must accept a complaint’s allegations as true

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is inapplicable to threadbare recitals of a cause of action’s elements, supported by mere conclusory

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statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

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In addition, to survive a motion to dismiss, a plaintiff must plead “enough facts to state a

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claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

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(2007). Plausibility does not mean probability, but it requires “more than a sheer possibility that a

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defendant has acted unlawfully.” Iqbal, 556 U.S. at 678. “A claim has facial plausibility when the

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plaintiff pleads factual content that allows the court to draw the reasonable inference that the

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defendant is liable for the misconduct alleged.” Id. “[B]efore dismissing a pro se complaint the

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district court must provide the litigant with notice of the deficiencies in his complaint in order to

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ensure that the litigant uses the opportunity to amend effectively.” Ferdik v. Bonzelet, 963 F.2d

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1258, 1261 (9th Cir. 1992). Nevertheless, “[p]ro se litigants must follow the same rules of

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procedure that govern other litigants.” King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987)

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(overruled on other grounds).

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The Court previously dismissed Plaintiff’s original complaint, which did not identify

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specific causes of action, based on the Court’s liberal reading of the complaint. The Court

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concluded that Plaintiff failed to state a claim because: (1) Plaintiff’s allegation that the

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foreclosing entities do not possess the promissory note did not affect the validity of the

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foreclosure; (2) Plaintiff’s demand for access to the original promissory note under the Truth in
Lending Act (“TILA”), 15 U.S.C. §§ 1601–1667j, the Real Estate Settlement Procedures Act

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United States District Court
Northern District of California

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(“RESPA”), 12 U.S.C. § 2605, and the Uniform Commercial Code was not recognized in the law;

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(3) Plaintiff’s TILA claim was also time-barred; (4) Plaintiff’s request for rescission was barred by

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the tender rule; and (5) the Uniform Commercial Code does not apply to non-judicial foreclosure.

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See ECF No. 49 at 2–4 (citing cases). The Court warned Plaintiff that further failure to state a

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claim could result in dismissal with prejudice.

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Plaintiff’s First Amended Complaint, ECF No. 57, suffers from the same deficiencies as

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the original complaint. Plaintiff makes the same allegations he made before and, although he now

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states them in more detail, they rest on the same legal theories. These claims remain deficient for

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the reasons expressed in the Court’s prior order.

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Plaintiff also makes mention of the Federal Debt Collection Practices Act, the Federal Fair

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Credit Reporting Act, fraud in the concealment, fraud in the inducement, “international” infliction

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of emotional distress, and “illegal securitization.” If Plaintiff means to add new causes of action,

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he cannot do so here because he has not obtained leave of court. In its prior order, the Court

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granted Plaintiff leave to amend the original complaint “consistent with the terms of” that order,

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ECF No. 49 at 6, but did not grant leave to add new claims. See Fed. R. Civ. P. 15(a)(2). Even

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putting that problem aside, none of the claims is adequately pleaded, since the First Amended

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Complaint does not contain any factual allegations concerning any of these new purported causes

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of action.
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Finally, Plaintiff purports to petition to quiet title. Plaintiff’s quiet title cause of action

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fails for the same reason as his wrongful foreclosure claim. Plaintiff does not adequately allege

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that he is the rightful owner of the property, nor has Plaintiff tendered the amount of his

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indebtedness. See Kelley v. Mortg. Electronic Registration, 642 F. Supp. 2d 1048, 1057 (N.D.

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Cal. Aug. 12, 2009) (dismissing quiet title claim because plaintiff failed to allege ownership and

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tender).
Because Plaintiff has failed to amend the complaint in a manner that addresses the

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deficiencies previously identified by the Court, and because Plaintiff has had ample notice and

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opportunity to do so, the Court hereby GRANTS Defendants’ motions to dismiss the First
Amended Complaint and DISMISSES Plaintiff’s First Amended Complaint without leave to

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United States District Court
Northern District of California

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amend.

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The Court notes that in Plaintiff’s last filing, ECF No. 69, in addition to opposing the

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motions to dismiss, Plaintiff requested that the Court forward his case to the Court of Appeals. If

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Plaintiff wishes to appeal this order, Plaintiff must do so in accordance with the Federal Rules of

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Appellate Procedure. This Court cannot forward its own order to the Court of Appeals for review.

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Defendants shall file a proposed form of judgment within fourteen days from the date of
this order.
IT IS SO ORDERED.
Dated: May 20, 2014
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JON S. TIGAR
United States District Judge

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