Amaral v. Wachovia Mortg. Corp.
| Decision Date | 17 February 2010 |
| Docket Number | No. 09-CV-00937-OWW-GWA.,09-CV-00937-OWW-GWA. |
| Citation | 692 F. Supp.2d 1226 |
| Court | U.S. District Court — Eastern District of California |
| Parties | Mary AMARAL, Joe Amaral and Danny Amaral, Plaintiffs, v. WACHOVIA MORTGAGE CORPORATION, a North Carolina Corporation; Carrington Mortgage Services, LLC; and Does 1-50 inclusive, Defendants. |
Kimberly L. Mayhew, Caswell Bell and Hillison LLP, Fresno, CA, for Plaintiffs.
Jeremy E. Shulman, Mark T. Flewelling, Anglin Flewelling Rasmussen, Campbell & Trytten, LLP, Pasadena, CA, Brian H. Gunn, Wolfe and Wyman LLP, Walnut Creek, CA, for Defendants.
Before the court is a motion to dismiss or, in the alternative, a motion for a more definite statement filed by Defendant Carrington Mortgage Corporation ("Carrington"), and a motion to dismiss and a motion to strike filed by Defendant Wachovia Mortgage, FSB ("Wachovia") erroneously sued as Wachovia Mortgage Corporation. The motions are directed at the claims asserted by Plaintiffs Mary Amaral, Joe Amaral, and Danny Amaral ("Plaintiffs") in their removed complaint (Doc. 24-2). The following background facts are taken from the complaint and other documents on file in this case.
This is a mortgage fraud case concerning Plaintiffs' residence located in Lemoore, California. Initially, Plaintiffs obtained two loans from Freemont & Loan ("Freemont"), one for $460,000 (the "First Loan") and one for $115,000 (the "Second Loan"). Around January 2008, Plaintiffs approached Wachovia to obtain a third loan, i.e., a refinance loan, to pay off both their First and Second Loan. (Doc. 24-2 at 2-3.)
On or about April 1, 2008, Carrington took over "servicing" of the First Loan allegedly without notice to Plaintiffs. On or about April 30, 2008, Wachovia purportedly wired $594,806.16 to Freemont to pay off both loans. On May 13, 2008, however, Carrington sent Plaintiffs a Notice of Intent to Foreclose on the First Loan. This notice stated that the monthly loan payments due on or after March 1, 2008, had not been received. Starting in June 2008, Plaintiffs made monthly payments to Wachovia on the refinance loan. Starting in December 2008, Wachovia refused to accept Plaintiffs' payments. (Id. at 3-4.)
On April 21, 2009, Plaintiffs filed a complaint in Kings County Superior Court. In May 2009, Defendant Carrington filed a notice of removal purporting to remove, with Wachovia's consent, Plaintiffs' state case to federal court. Carrington, however, attached the wrong complaint to its notice of removal—the attached complaint was filed by "Gerald Anudokem" in the Northern District of California. This irregularity was pointed out to Carrington in an order dated September 17, 2009. (Doc. 23.) On October 1, 2009, Carrington filed an amended notice of removal (to which no party objected) and attached the correct complaint.
Plaintiffs' complaint contains causes of action for: (1) a violation of the Real Estate Settlement Procedures Act of 1974, 12 U.S.C. § 2601 et seq. ("RESPA"); (2) a violation of § 2937 of the California Civil Code; (3) declaratory relief; (4) fraud; and (5) conversion. The RESPA, § 2937, and declaratory relief claims are asserted against Carrington. The fraud and conversion claims are asserted against Wachovia.
Federal question jurisdiction, which exists over the RESPA claim, is the asserted basis for subject matter jurisdiction. Supplemental jurisdiction is asserted as to the state law claims.
Carrington moves to dismiss Plaintiffs' RESPA, § 2937, and declaratory relief claims. Alternatively, Carrington moves for a more definite statement of these claims. Wachovia moves to dismiss the fraud and conversion claims, and also moves to strike Plaintiffs' request for punitive damages. With respect to the fraud claim, Wachovia further contends that Plaintiffs have failed to comply with Rule 9(b)'s pleading requirements.
Dismissal under Rule 12(b)(6) is appropriate where the complaint lacks sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.1988). To sufficiently state a claim to relief and survive a 12(b) (6) motion, the pleading "does not need detailed factual allegations" but the "factual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Mere "labels and conclusions" or a "formulaic recitation of the elements of a cause of action will not do." Id. Rather, there must be "enough facts to state a claim to relief that is plausible on its face." Id. at 570, 127 S.Ct. 1955. In other words, the "complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted). The Ninth Circuit has summarized the governing standard, in light of Twombly and Iqbal, as follows: "In sum, for a complaint to survive a motion to dismiss, the non-conclusory factual content, and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir.2009) (internal quotation marks omitted). Apart from factual insufficiency, a complaint is also subject to dismissal under Rule 12(b)(6) where it lacks a cognizable legal theory, Balistreri, 901 F.2d at 699, or where the allegations on their face "show that relief is barred" for some legal reason, Jones v. Bock, 549 U.S. 199, 215, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007).
In deciding whether to grant a motion to dismiss, the court must accept as true all "well-pleaded factual allegations" in the pleading under attack. Iqbal, 129 S.Ct. at 1950. A court is not, however, "required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001); see, e.g., Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 683 (9th Cir.2009). "When ruling on a Rule 12(b)(6) motion to dismiss, if a district court considers evidence outside the pleadings, it must normally convert the 12(b)(6) motion into a Rule 56 motion for summary judgment, and it must give the nonmoving party an opportunity to respond." United States v. Ritchie, 342 F.3d 903, 907 (9th Cir.2003). "A court may, however, consider certain materials-documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice-without converting the motion to dismiss into a motion for summary judgment." Id. at 908.
"If a pleading fails to specify the allegations in a manner that provides sufficient notice, a defendant can move for a more definite statement under Rule 12(e) before responding." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). Under Rule 12(e), "a party may move for a more definite statement of a pleading" when it is "so vague or ambiguous that the party cannot reasonably prepare a response."
A Rule 12(e) motion is proper only if the complaint is so indefinite that the defendant cannot ascertain the nature of the claim being asserted, i.e., so vague that the defendant cannot begin to frame a response. See Famolare, Inc. v. Edison Bros. Stores, Inc., 525 F.Supp. 940, 949 (E.D.Cal.1981). The motion must be denied if the complaint is specific enough to notify defendant of the substance of the claim being asserted. See Bureerong v. Uvawas, 922 F.Supp. 1450, 1461 (C.D.Cal. 1996); see also San Bernardino Pub. Employees Ass'n v. Stout, 946 F.Supp. 790, 804 (C.D.Cal.1996) ().
Under Rule 12(f), a court may strike from a pleading "an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R.Civ.P. 12(f). "The function of a 12(f) motion to strike is to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial." Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir.1983). A motion to strike should not be granted unless it is clear that the matter to be stricken could have no possible bearing on the subject matter of the litigation. Neveu v. City of Fresno, 392 F.Supp.2d 1159, 1170 (E.D.Cal.2005).
In terms of factual sufficiency, Rule 9(b), when it applies, imposes an elevated pleading standard. Rule 9(b) states:
In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally.
"To comply with Rule 9(b), allegations of fraud must be specific enough to give defendants notice of the particular misconduct which is alleged to constitute the fraud." Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir.2007) (internal quotation marks omitted). The "time, place, and specific content of the false representations as well as the identities of the parties to the misrepresentations" must be specified. Id. (internal quotation marks omitted). The "averments of fraud must be accompanied by the who, what, when, where, and how of the misconduct charged." Kearns v. Ford Motor...
To continue reading
Request your trial
-
Newsom v. Countrywide Home Loans Inc. Dba America's Wholesale Lender
...fraud claim, as applied, bears on lending activities expressly contemplated by § 560.2(b), it is preempted.” Amaral v. Wachovia Mortg. Corp., 692 F.Supp.2d 1226, 1237 (E.D.Cal.2010) (granting motion to dismiss fraud cause of action which alleged that the lender “made material false represen......
-
Teaupa v. U.S. Nat'l Bank N.A.
...factual allegations indicating how he was damaged by the any alleged RESPA violation”); see also, e.g., Amaral v. Wachovia Mortg. Corp., 692 F.Supp.2d 1226, 1232 (E.D.Cal.2010) (“Absent factual allegations suggesting that Plaintiffs suffered actual damages, Plaintiffs' [§ 2605(f) ] RESPA cl......
-
Dixon v. Wells Fargo Bank, N.A.
...where she alleged that the bank improperly qualified her for a loan that she could not afford to pay); Amaral v. Wachovia Mortg. Corp., 692 F.Supp.2d 1226, 1237–38 (E.D.Cal.2010) (finding that HOLA preempted a fraud claim alleging that the lender made material false representations that the......
-
Esoimeme v. Wells Fargo Bank, CIV S-10-2259 JAM EFB PS
...claim alleging that defendant failed to provide disclosures and misrepresented interest rates and fees); Amaral v. Wachovia Mortg. Corp. 692 F. Supp.2d 1226, 1237-38 (E.D. Cal. 2010) (finding that HOLA preempted fraud claim alleging that defendant made material false representations regardi......