Vega v. Saxon Mortgage Services, Inc. et al

Filing 7

ORDER granting Defendant Saxon Mortgage Services, Inc's 4 Motion to Dismiss. Each claim is dismissed w/o prejudice. Pla may file an Amended Complaint within 30 days of the date of this Order. Signed by Judge Irma E. Gonzalez on 3/16/2009. (All non-registered users served via U.S. Mail Service). (jah) (jrl).

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 -1Presently before the Court is defendant Saxon Mortgage Services, Inc.'s ("Saxon") motion to dismiss plaintiff's complaint for failure to state a claim upon which relief can be granted. For the reasons stated herein, the Court grants Saxon's motion. BACKGROUND Plaintiff Celestino de Jesus Vega ("Vega"), proceeding pro se, brings this suit in an apparent attempt to reverse the foreclosure on the deed of trust ("deed") on his home, located at 211 Rainbow Lane in Oceanside, California ("property"). Defendant Regional Trustee Services, Inc. ("Regional") is the trustee on the deed, and Saxon is the servicer of plaintiff's home loan. Plaintiff alleges that both defendants were agents of the deed's beneficiary. After plaintiff defaulted on his loan agreement, a notice of default was recorded against the property. The complaint alleges that on September 4, 2008, CELESTINO DE JESUS VEGA, vs. Plaintiff, CASE NO. 08-CV-2194-IEG (CAB) ORDER GRANTING SAXON MORTGAGE SERVICES, INC.'S MOTION TO DISMISS (Doc. No. 4)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

SAXON MORTGAGE SERVICES, INC.; HOMEQ SERVICING; REGIONAL TRUSTEE SERVICES CORPORATION; and DOES 1-X, Inclusive, Defendant.

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"defendants" conducted a trustee's sale of the property.1 Plaintiff filed a complaint in the Superior Court of San Diego County on October 30, 2008. On November 26, 2008, Saxon removed the action to federal court. (Doc. No. 1.) Saxon filed a motion to dismiss the complaint on December 5, 2008 (Doc. No. 4,) and a response in support of its motion on January 26, 2009. (Doc. No. 5.) Plaintiff did not file an opposition to Saxon's motion. The Court finds the motion suitable for disposition without oral argument pursuant to Local Civil Rule 7.1(d)(1). DISCUSSION I. Legal Standard A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a) (2009). A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the claims asserted in the complaint. Fed. R. Civ. P. 12(b)(6); Navarro v. Block, 250 F.3d 729, 731 (9th Cir. 2001). The court must accept all factual allegations pled in the complaint as true, and must construe them and draw all reasonable inferences from them in favor of the nonmoving party. Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337-38 (9th Cir.1996). To a void a Rule 12(b)(6) dismissal, a complaint need not contain detailed factual allegations, rather, it must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). However, "a plaintiff's obligation to provide the `grounds' of his `entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 555 (citation omitted). In spite of the deference the court is bound to pay to the plaintiff's allegations, it is not proper for the court to assume that "the [plaintiff] can prove facts that [he or she] has not alleged or that defendants have violated the . . . laws in ways that have not been alleged." Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). The Court recognizes the mandate to construe a pro se plaintiff's pleadings liberally in determining whether a claim has been stated. Ortez v. Washington County, 88 F.3d 804, 807 (9th Cir. 1996).

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Saxon explains that it initiated the foreclosure as an agent for the deed's beneficiary. -208cv2194

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II.

Plaintiff's Complaint Plaintiff's allegations against all defendants are concentrated in Paragraph V of his sparse

complaint. Although it is difficult to discern which causes of action plaintiff intends to bring, Saxon argues and the Court agrees that plaintiff's allegations can be distilled into the following arguments: A. B. C. D. E. F. Defendants engaged in unfair business practices; Defendants committed civil rights violations; Defendants engaged in predatory lending; Defendants lacked authority to foreclose; Defendants made intentional misrepresentations to plaintiff; and Defendants committed unspecified violations of the Fair Debt Collection Practices Act ("FDCPA") 15 U.S.C. §§ 1692, et seq.

The Court addresses each of these allegations below. III. Claims Plaintiff's sole allegations in support of his claims for "unfair business practices," "civil rights violations," and "predatory lending" are as follows: Beginning on or about November 2007 and continuing to the present time, Defendant(s) have wrongfully and unlawfully entered into the Unfair Business Practice of continually harassing Plaintiffs' (sic) by constantly calling during the day and evening, threatening foreclosure, and attempting to pressure and extort Plaintiff into making financial arrangements for the settlement of past due debts that are completely unfair and unacceptable. Plaintiff's civil rights have been violated. Plaintiff is the victim of "predatory lending" with respects (sic) to the high interest rates, unfathomable prepayment penalties that made it impossible for Plaintiff to seek and obtain new financing, unreasonable monthly payment adjustment amounts and adjustment dates. (Compl. ¶ V.) Even affording plaintiff's complaint the special consideration given to pro se claimants, plaintiff's allegations fail to present a cognizable legal theory or facts sufficient to support a cognizable legal theory. Plaintiff's allegations do not even rise to the level of "a short and plain statement of the claim showing that the pleader is entitled to relief," as required by Fed. R. Civ. P. 8(a). Plaintiff has not identified a term of the loan agreement or a statute that the defendants have purportedly violated. Plaintiff has also failed to allege which civil rights he believes have been violated not does he state a single action by defendants that constitutes a violation of his civil -308cv2194

Plaintiff's Unfair Business Practices, Civil Rights Violations and Predatory Lending

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rights. Although the Court must assume plaintiff can prove the facts he alleges in his complaint, it may not assume that Saxon has violated the law in ways that have not been alleged. Associated Gen. Contractors, 459 U.S. at 526. Accordingly, plaintiff's "unfair business practices," "civil rights violations," and "predatory lending" claims are dismissed. IV. Plaintiff's Intentional Misrepresentation Claim Plaintiff also appears to allege defendants committed the tort of intentional misrepresentation. His sole factual and legal allegations supporting this cause of action are that he is "ignorant of the terms of the ["original mortgage"] notes and has never been made to understand the terms, and has been purposely mislead (sic) and misrepresented." (Compl. ¶ V.) To state a claim for the tort of deceit based on intentional misrepresentation, plaintiff must allege the following elements: "(1) the defendant represented to the plaintiff that an important fact was true; (2) that representation was false; (3) the defendant knew that the representation was false when the defendant made it, or the defendant made the representation recklessly and without regard for its truth; (4) the defendant intended that the plaintiff rely on the representation; (5) the plaintiff reasonably relied on the representation; (6) the plaintiff was harmed; and (7) the plaintiff's reliance on the defendant's representation was a substantial factor in causing that harm to the plaintiff." Manderville v. PCG&S Group, Inc., 146 Cal. App. 4th 1486, 1498 (Cal. Ct. App. 2007). Plaintiff has failed to satisfy the pleading requirements for a claim of intentional misrepresentation. Most notably, plaintiff has not identified a single untrue statement made by Saxon or a single term in the loan documents that is untrue. Although plaintiff claims that he is ignorant of the terms of his loan documents, it does not follow that a misstatement by Saxon is the cause. The Court must not assume plaintiff "can prove facts the [he] has not alleged. . . ." Associated Gen. Contractors, 459 U.S. at 526. Accordingly, plaintiff's intentional misrepresentation claim is dismissed. V. Plaintiff's Federal Fair Debt Collection Practices Claim Plaintiff alleges "Defendant(s) have committed many unlawful acts under the Fair Debt Collection Practices Act." (Compl. ¶ V.) "The [FDCPA] prohibits debt collectors from making -4-

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false or misleading representations and from engaging in various abusive and unfair practices." Heintz v. Jenkins, 514 U.S. 291, 292 (1995); see also 15 U.S.C. §§ 1692, et seq. To state a claim for violation of the FDCPA, a plaintiff must allege that the defendant is a "debt collector" collecting a "debt." Uyeda v. J.A. Cambece Law Office, P.C., 2005 U.S. Dist. LEXIS 9271, at *7 (N.D. Cal. May 16, 2005). A "debt collector" under the FDCPA is a person whose "principal purpose" is the collection of debts, or who "regularly collects or attempts to collect . . . debts." 15 U.S.C. § 1692a(6) (2009). This definition excludes persons who collect debts "to the extent such activity . . .(ii) concerns a debt which was originated by such person; [or] (iii) concerns a debt which was not in default at the time it was obtained by such a person." Id. § 1692a(6)(f). Defendant Saxon, the loan servicer, is not a debt collector within the meaning of the law. "The legislative history of section 1692a(6) indicates conclusively that a debt collector does not include . . . a mortgage servicing company . . . ." Perry v. Stewart Title Co., 756 F.2d 1197, 1208 (5th Cir. 1985). Plaintiff therefore cannot successfully allege an FDCPA violation against Saxon. VI. Plaintiff's Claim that Saxon Lacked Authority to Foreclose on the Property Plaintiff appears to allege that defendants lacked authority to foreclose under the deed because defendants did not show him proof they were in possession of the original note. (Compl. ¶ V.) California Civil Code §§ 2924-2924k provide a "comprehensive framework for the regulation of a nonjudicial foreclosure sale pursuant to a power of sale contained in a deed of trust." Moeller v. Lien, 25 Cal. App. 4th 822, 830 (Cal. Ct. App. 1994). Under this framework, nonjudicial foreclosure proceedings may be instituted by "the trustee, mortgagee, or beneficiary, or any of their authorized agents" by filing a notice of default with the office of the recorder. Cal. Civ. Code § 2924(a)(1) (2008). No less than three months after the filing of the notice of default, a notice of sale may be given by "the mortgagee, trustee, or other person authorized to take the sale." Cal. Civ. Code § 2924(a)(3) (2008). There is no requirement that the original note be in possession of or produced by the foreclosing party. Plaintiff's claim is not legally cognizable, and is therefore dismissed.

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VII.

Injunctive Relief The Complaint requests "a temporary restraining order, a preliminary injunction, and a

permanent injunction" enjoining defendants from proceeding with the foreclosure process. (Compl. ¶ IX.) The Court finds that injunctive relief is not presently warranted, because the Complaint does not set forth the appropriate legal standard for injunctive relief or present any argument that plaintiff's situation meets that standard. See Stuhlbarg Intern. Sales Co. v. John D. Brush and Co., 240 F.3d 832, 839-840 (9th Cir. 2001) (holding a preliminary injunction is appropriate if the moving party establishes either (1) a combination of probable success on the merits and the possibility of irreparable injury; or (2) serious questions going to the merits of the case and the balance of hardships tips sharply in favor of the moving party). CONCLUSION Saxon's motion to dismiss is GRANTED. Each claim is dismissed without prejudice. Plaintiff may file an amended complaint within thirty (30) days of the date of this order addressing the deficiencies set forth herein. IT IS SO ORDERED.

DATED: March 16, 2009 IRMA E. GONZALEZ, Chief Judge United States District Court

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