Rucker v. Ocwen Loan Servicing, LLC et al

Filing 8

ORDER granting 3 Defendant's Motion to Dismiss. The Complaint is hereby dismissed without prejudice against Defendant Ocwen only. Signed by Judge Dana M. Sabraw on 9/6/11. (All non-registered users served via U.S. Mail Service)(lao)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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LONZO LYNN RUCKER,

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Plaintiff,
vs.

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CASE NO. 11cv1242 DMS (BGS)

ORDER GRANTING
DEFENDANT’S MOTION TO
DISMISS

OCWEN LOAN SERVICING, LLC; et al.,

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[Docket No. 3]

Defendants.

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This case comes before the Court on Defendant Ocwen Loan Servicing, LLC’s motion to

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dismiss. Plaintiff filed an opposition to the motion, and Defendant filed a reply. For the reasons

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discussed below, the Court grants the motion.

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I.

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BACKGROUND

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This case concerns the real property located at 3212-3214 Newton Avenue, San Diego,

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California. On July 3, 2006, Scotty and Jeanne G. Schuetz, refinanced their loan on the property.

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(Compl. ¶ 6.) In March 2009, the lender filed a Notice of Default and Election to Sell Under Deed of

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Trust against the Schuetzes’ property. (Compl., Ex. B.) Thereafter, the Schuetzes deeded the property

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to Plaintiff pursuant to a Grant Deed. (Compl. ¶6, Ex. D.) The property was subsequently scheduled

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for a trustee’s sale on January 10, 2011. (Compl., Ex. C.) It appears that sale has yet to occur.

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11cv1242

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On April 28, 2011, Plaintiff filed the present case in San Diego Superior Court against Defendant

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Ocwen Loan Servicing, LLC (“Defendant”) and Regional Service Corporation. In the Complaint,

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Plaintiff alleges the following claims for relief: (1) violation of California Civil Code § 2923.5, (2)

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fraud, (3) intentional misrepresentation, (4) violation of California Civil Code § 2923.6, (5) violation

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of California Civil Code § 1572, (6) violation of California Business and Professions Code § 17200, and

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(7) violation of the Truth in Lending Act (“TILA”). Defendant removed the case to this Court on June

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6, 2011. The present motion followed.

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II.

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DISCUSSION

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Defendant moves to dismiss the Complaint in its entirety. It argues each of Plaintiff’s claims

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fails to state a claim for relief.1

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A.

Standard of Review

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In two recent opinions, the Supreme Court established a more stringent standard of review for

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12(b)(6) motions. See Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937 (2009); Bell Atlantic Corp. v.

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Twombly, 550 U.S. 544 (2007). To survive a motion to dismiss under this new standard, “a complaint

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must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

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face.’” Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 570). “A claim has facial plausibility

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when the 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. (citing Twombly, 550 U.S. at 556).

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“Determining whether a complaint states a plausible claim for relief will ... be a context-specific

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task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 1950

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(citing Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007)). In Iqbal, the Court began this task “by

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identifying the allegations in the complaint that are not entitled to the assumption of truth.” Id. at 1951.

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It then considered “the factual allegations in respondent’s complaint to determine if they plausibly

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suggest an entitlement to relief.” Id. at 1951.

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Defendant moves to dismiss Plaintiff’s TILA claim, but it is not named as a defendant on
that claim. Accordingly, the Court declines to address Defendant’s arguments for dismissal of that
claim.
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11cv1242

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In this case, the Court approaches its task of deciding the motion to dismiss while keeping in

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mind the admonition from the Supreme Court that “[a] document filed pro se is ‘to be liberally

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construed,’ and ‘a pro se complaint, however inartfully pleaded, must be held to less stringent standards

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than formal pleadings drafted by lawyers[.]’” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting

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Estelle v. Gamble, 429 U.S. 97, 106 (1976)) (internal citations omitted). That Plaintiff is proceeding

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pro se does not relieve Defendant of its burden to show that dismissal is appropriate. See Abbey v.

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Hawaii Employers Mutual Ins. Co., No. 09-000545 SOM/BMK, 2010 WL 4273111, at *4 (D. Hawaii

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Oct. 22, 2010) (stating that although pro se complaint “is not a model of clarity,” defendant bears burden

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of persuading court that dismissal is warranted). Furthermore, “a motion to dismiss is not the

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appropriate procedural vehicle to test the merits of Plaintiff’s FAC and the claims asserted therein.”

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Walker v. City of Fresno, No. 1:09-cv-1667-OWW-SKO, 2010 WL 3341861, at *4 (E.D. Cal. Aug. 23,

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2010) (citing Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001)). Rather, on a motion to dismiss the

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Court’s review is limited to determining whether the factual allegations in the complaint state a plausible

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claim for relief.

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B.

California Civil Code § 2923.5

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Plaintiff’s first claim alleges Defendants violated California Civil Code § 2923.5. Defendant

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argues this claim must be dismissed because the evidence demonstrates it complied with the statute.

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(See Req. for Judicial Notice in Supp. of Mot., Ex. 3.)2 The Notice of Default and Election to Sell Under

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Deed of Trust states: “Pursuant to California Civil Code Section 2923.5, the mortgagee, beneficiary, or

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authorized agent has contacted the borrower, tried with due diligence to contact the borrower as required

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by this section, or the borrower has surrendered the property to the mortgagee, trustee, beneficiary, or

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authorized agent.” (Id. at 1.) Plaintiff does not dispute this evidence, nor does he raise a specific

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argument against dismissal of this claim. Accordingly, the Court grants the motion to dismiss this

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claim.

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The Court takes judicial notice of this document pursuant to Federal Rule of Evidence 201.
See Johnson v. Bank United F.S.B., No. 2:10-cv-02567-GEB-KJM, 2010 WL 5287551, at *2 (E.D.
Cal. Dec. 17, 2010) (taking judicial notice of Notice of Default and Election to Sell under Deed of
Trust).
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11cv1242

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C.

Fraud/Intentional Misrepresentation/California Civil Code § 1572

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Plaintiff’s second, third and fifth claims allege fraud, intentional misrepresentation and violation

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of California Civil Code § 1572,3 respectively. Defendant argues these claims should be dismissed for

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failure to comply with Federal Rule of Civil Procedure 9(b), and for failure to allege causation.

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A fraud-based pleading satisfies Rule 9(b) if it identifies “the who, what, when, where, and how”

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of the misconduct charged. Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003). The

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allegations in the Complaint do not meet this standard. Absent compliance with Rule 9(b), the Court

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grants the motion to dismiss these claims.4

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D.

California Civil Code § 2923.6

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Plaintiff’s fourth claim alleges a violation of California Civil Code § 2923.6. Defendant argues

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this claim must be dismissed because the statute does not provide a private right of action, and because

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it imposes no duty on Defendant. Other courts have agreed with Defendant that there is no private right

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of action under this statute. See Anaya v. Advisors Lending Group, No. CV F 09-1191 LJO DLB, 2009

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WL 2424037, at *8 (E.D. Cal. Aug. 5, 2009); Farner v. Countrywide Home Loans, No. 08cv2193

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BTM(AJB), 2009 WL 189025, at *2 (S.D. Cal. Jan. 26, 2009). Plaintiff fails to explain why that

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conclusion should not apply here. Accordingly, the Court grants the motion to dismiss this claim.

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III.

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CONCLUSION AND ORDER

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For these reasons, the Court grants Defendant’s motion to dismiss. The Complaint is hereby
dismissed without prejudice against Defendant Ocwen only.
IT IS SO ORDERED.

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California Civil Code § 1572 is entitled “Actual fraud,” and sets out what constitutes actual
fraud with respect to contracts.
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Plaintiff’s 17200 claim relies on the same allegations underlying his fraud claims. (See
Compl. at 18-19.) Because those allegations do not satisfy Rule 9(b), the Court grants the motion to
dismiss the 17200 claim, as well. See Delong v. TaxMasters, Inc., No. CV 11-014310ODW (AGRx),
2011 WL 3715251, at *5 (C.D. Cal. Aug. 24, 2011) (stating allegations of fraudulent conduct under
§ 17200 must satisfy Rule 9(b)).
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11cv1242

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DATED: September 6, 2011
HON. DANA M. SABRAW
United States District Judge

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11cv1242