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