Hinrichsen et al v. Quality Loan Service Corporation et al

Filing 97

ORDER denying 96 Motion to Dismiss Counterclaim. Signed by Judge Dana M. Sabraw on 3/30/2017. (All non-registered users served via U.S. Mail Service) (fth)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 RICK J. HINRICHSEN, ANNA HINRICHSEN, HOLLY COX, ORDER DENYING MOTION TO DISMISS COUNTERCLAIM Plaintiffs, 13 14 Case No.: 16cv0690 DMS (BLM) v. 20 QUALITY LOAN SERVICE CORPORATION; DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR THE HOLDERS OF NEW CERNTURY HOME EQUITY LOAN TRUST, SERIES 2005-A, ASSET BACKED PASS-THROUGH CERTIFICATES; DOES 1-10, INCLUSIVE, 21 Defendants. 15 16 17 18 19 22 AND RELATED COUNTERCLAIM. 23 24 25 This case comes before the Court on pro se parties Rich Hinrichsen, Anna 26 Hinrichsen and Holly Cox’s motion to dismiss the Counterclaim. Deutsche Bank National 27 Trust Company (“DBNTC”) and Bank of America, N.A. (“BofA”) filed an opposition to 28 1 16cv0690 DMS (BLM) 1 the motion,1 and the Hinrichsens and Ms. Cox filed a reply. For the reasons discussed 2 below, the Court denies the motion. 3 I. 4 BACKGROUND 5 The facts of this case are set out in detail in this Court’s January 5, 2017 Order 6 Granting Motion for Leave to File Amended Answer and Counterclaim and to Add New 7 Parties. Since that Order issued, DBNTC and BofA filed an Amended Answer and 8 Counterclaim against the Hinrichsens, Ms. Cox, Pacifico Property Trust, The Rick and 9 Anna Hinrichsen Property Trust, Steven Lucore, Sr., Judy Lucore and Hayven Arizona 10 Finance alleging claims for (1) fraud in the reconveyance of the lien, (2) fraud in the further 11 encumbrance of the property, (3) quasi-contract, (4) declaratory relief, (5) rescission and 12 (6) cancellation. In response to the Counterclaim, the Hinrichsens and Ms. Cox filed the 13 present motion to dismiss. 14 II. 15 DISCUSSION 16 The Hinrichsens and Ms. Cox move to dismiss the Counterclaim in its entirety. 17 DBNTC and BofA oppose the motion, and request leave to amend if the motion is granted. 18 In Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly, 550 19 U.S. 544 (2007), the Supreme Court established a more stringent standard of review for 20 12(b)(6) motions. To survive a motion to dismiss under this new standard, “a complaint 21 must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is 22 plausible on its face.’” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 570). “A claim 23 24 25 26 27 28 1 The Hinrichsens and Ms. Cox assert the opposition brief was untimely filed. In support of this argument, they cite “Civil Local Rule 7-9,” (Reply at 2), but there is no such Local Rule. Contrary to the Hinrichsens’ argument, Civil Local Rule 7.1.e.2 states opposition briefs must be filed “not later than fourteen (14) calendar days prior to the noticed hearing.” Civil Local Rule 7.1.e.2. The opposition brief was filed by that deadline, and was therefore timely filed. 2 16cv0690 DMS (BLM) 1 has facial plausibility when the plaintiff pleads factual content that allows the court to draw 2 the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing 3 Twombly, 550 U.S. at 556). 4 “Determining whether a complaint states a plausible claim for relief will ... be a 5 context-specific task that requires the reviewing court to draw on its judicial experience 6 and common sense.” Id. at 679 (citing Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007)). 7 In Iqbal, the Court began this task “by identifying the allegations in the complaint that are 8 not entitled to the assumption of truth.” Id. at 680. It then considered “the factual 9 allegations in respondent’s complaint to determine if they plausibly suggest an entitlement 10 to relief.” Id. at 681. 11 Here, the first and primary argument in support of the motion to dismiss is that the 12 2012 reconveyance of the property is “irrelevant” because in 2006 the Hinrichsens 13 rescinded their mortgage under Truth in Lending Act (“TILA”).2 The Hinrichsens have 14 raised similar arguments in previous briefs, and as indicated in the Court’s Order granting 15 BofA’s motion for leave to intervene, the effect of the Hinrichsens’ alleged rescission of 16 their mortgage under TILA “is an issue that remains to be determined in this case.” (Docket 17 No. 78 at 5.) Unless and until that issue is determined, the 2012 reconveyance of the 18 property is not “irrelevant” to this case, and the Hinrichsens’ argument to the contrary does 19 not warrant dismissal of the Counterclaim. 20 The only other argument raised in the motion is that the fraud claims are untimely. 21 Specifically, the Hinrichsens and Ms. Cox assert “the statute of limitations for a cause of 22 action under Cal. Civ. Code § 1719 has expired.” (Mem. of P. & A. in Supp. of Mot. at 5.) 23 But, there is no counterclaim under California Civil Code § 1719. To the extent the 24 Hinrichsens and Ms. Cox are asserting the fraud claims actually alleged in the 25 Counterclaim are time-barred, DBNTC and BofA have alleged facts that support 26 27 2 28 Indeed, this is the primary argument in support of dismissal of each of the claims alleged in the Counterclaim. 3 16cv0690 DMS (BLM) 1 invocation of the discovery rule. (See Answer and Counterclaim ¶ 41; Opp’n to Mot. at 2 16-20.) Thus, the fraud claims are not subject to dismissal at this stage of the case on the 3 ground they are untimely. 4 III. 5 CONCLUSION 6 7 8 9 For the reasons set out above, the Court denies the motion to dismiss the Counterclaim. IT IS SO ORDERED. Dated: March 30, 2017 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 16cv0690 DMS (BLM)

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