Bochene v. MFRA Tr. 2014-2

• Decision Date: 23 January 2018
• Docket Number: No. 2:17-cv-0768 TLN DB PS,2:17-cv-0768 TLN DB PS
• Parties: ANTHONY BOCHENE, Plaintiff, v. MFRA TRUST 2014-2, MFRESIDENTIALASSETS, LLC AS ADMINISTRATOR, et al., Defendants.
• Court: U.S. District Court — Eastern District of California

ANTHONY BOCHENE, Plaintiff, v. MFRA TRUST 2014-2, MFRESIDENTIALASSETS, LLC AS ADMINISTRATOR, et al., Defendants.

No. 2:17-cv-0768 TLN DB PS

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

January 23, 2018

FINDINGS AND RECOMMENDATIONS

This matter came before the undersigned on August 4, 2017, for hearing of a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure filed by defendant Capital One Bank as successor in interest to Chevy Chase Bank, FSB, ("Capital One Bank").¹ (ECF No. 27.) Plaintiff Anthony Bochene appeared in person on his own behalf. Attorney Megan Kelly appeared telephonically on behalf of defendant Capital One Bank. After hearing oral argument, defendant's motion was taken under submission.²

For the reasons stated below, the undersigned will recommend that defendant Capital One Bank's motion to dismiss be granted.

BACKGROUND

Plaintiff, proceeding pro se, commenced this action on March 6, 2017, by filing a complaint in the Nevada County Superior Court. (Compl. (ECF No. 1-1) at 2.³) Therein, plaintiff alleges that on August 28, 2001, plaintiff purchased "real property located at 10032 Hill rd. Soda Springs Ca. 95728." (Id. at 6.) On June 21, 2005, plaintiff "refinanced the property." (Id.) In 2007, plaintiff fell behind on his payments. (Id.) Plaintiff received a loan modification through defendant Citimortgage, Inc., ("CMI").⁴ (Id. at 6-7.)

"[A]lmost immediately," CMI breached the terms and conditions of the loan modification agreement. (Id at 7.) In 2009, the loan was assigned to U.S. Bank. (Id.) Despite repeated attempts to obtain a loan modification, "plaintiff received notice of commencement of foreclosure against his property." (Id. at 8.) Based on these allegations, the complaint asserts causes of action against defendant Capital One Bank for quite title, rescission based on fraud, violation of the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692-1692p ("FDCPA") and California's Rosenthal Fair Debt Collection Practices Act, Cal. Civ. Code §§ 1788-1788.33 ("Rosenthal Act"), and unfair business practices in violation of California Business and Professions Code § 17200. (Compl. (ECF No. 1-1) at 8-15.)

Defendant CMI removed the matter to this court on April 11, 2017, on the basis of both federal question and diversity jurisdiction. (ECF No. 1.) On June 29, 2017, defendant Capital One Bank filed the pending motion to dismiss. (ECF No. 18.) Plaintiff filed an opposition on July 19, 2017. (ECF No. 22.) Defendant Capital One Bank filed a reply on July 21, 2017. (ECF No. 23.)

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STANDARD

I. Legal Standards Applicable to Motions to Dismiss Pursuant to Rule 12(b)(6)

The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal sufficiency of the complaint. N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). "Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege "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). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

In determining whether a complaint states a claim on which relief may be granted, the court accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). In general, pro se complaints are held to less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, the court need not assume the truth of legal conclusions cast in the form of factual allegations. United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). While Rule 8(a) does not require detailed factual allegations, "it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678. A pleading is insufficient if it offers mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 676 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."). Moreover, it is inappropriate to assume that the plaintiff "can prove facts which it has not alleged or that the 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).

//// In ruling on a motion to dismiss brought pursuant to Rule 12(b)(6), the court is permitted to consider material which is properly submitted as part of the complaint, documents that are not physically attached to the complaint if their authenticity is not contested and the plaintiff's complaint necessarily relies on them, and matters of public record. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001).

ANALYSIS

I. Rule 8

Although the Federal Rules of Civil Procedure adopt a flexible pleading policy, a complaint must give the defendant fair notice of the plaintiff's claims and must allege facts that state the elements of each claim plainly and succinctly. Fed. R. Civ. P. 8(a)(2); Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). "A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of cause of action will not do.' Nor does a complaint suffice if it tenders 'naked assertions' devoid of 'further factual enhancements.'" Ashcroft v. Iqbal, 556 U.S.662, 678 (2009) (quoting Twombly, 550 U.S. at 555, 557). A plaintiff must allege with at least some degree of particularity overt acts which the defendants engaged in that support the plaintiff's claims.⁵ Jones, 733 F.2d at 649.

Here, the complaint purports to assert four causes of action against defendant Capital One Bank: (1) quite title; (2) rescission based on fraud; (3) unlawful debt collection; and (4) and unfair business practices. (Compl. (ECF No. 1-1) at 8-15.) Each of those claims requires particular factual allegations in support. For example, claims of fraud "must be accompanied by 'the who, what, when, where, and how' of the misconduct charged.'" Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir. 2009) (quoting Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003)). And in order to state an unlawful debt collection claim under the FDCPA the complaint "must allege facts that establish the following: (1) plaintiff has been the object of collection activity arising from a consumer debt; (2) the defendant qualifies as a 'debt collector'under the FDCPA; and (3) the defendant has engaged in a prohibited act or has failed to perform a requirement imposed by the FDCPA." Dang v. CitiMortgage, Inc., No. 5:11-cv-05036 EJD, 2012 WL 762329, at *3 (N.D. Cal. Mar. 7, 2012); see also Schlegel v. Wells Fargo Bank, NA, 720 F.3d 1204, 1208 (9th Cir. 2013) (quoting Iqbal, 556 U.S. at 678) ("complaint must plead 'factual content that allows the court to draw the reasonable inference' that Wells Fargo is a debt collector").

However, the only factual allegations found in the complaint concerning defendant Capital One Bank simply allege that "on or about June 21, 2005, when Plaintiff agreed to close the refinancing loan secured by the subject property," defendant Capital One Bank "failed to disclose to Plaintiff that his income would be insufficient to repay the loan." (Compl. (ECF No. 1-1) at 10.) That is the entire extent of the complaint's factual allegations relating to defendant Capital One Bank. In this regard, with respect to defendant Capital One Bank, plaintiff's complaint fails to allege facts that state the elements of any claim plainly and succinctly.

II. Statute of Limitations

As noted above, the complaint's only allegation against defendant Capital One Bank concerns an event occurring on June 21, 2005. (Compl. (ECF No. 1-1) at 10.) And the most recent date alleged in the complaint is "2010."⁶ (Id. at 8.) The statute of limitations for unfair debt collection practice claims, however, is one year from the date of the violation. See Quinlan v. Citimortgage, Inc., No. 2:11-cv-0986 MCE EFB, 2013 WL 3325961, at *2 (E.D. Cal. July 1, 2013). Claims based upon fraud are subject to a three-year statute of limitations. See Cal. Civ. Pro. Code § 338(d). And claims based upon the violation of California Business and Professions Code § 17200 are subject to a four-year statute of limitations. See Cal. Bus. & Prof. Code § 17208.

With respect to defendant Capital One Bank, only plaintiff's claim for quiet title would not be barred by the applicable statute of limitations.⁷ See Salazar v. Thomas, 236 Cal.App.4th 467, 477 (2015) (quotation and alteration omitted) ("as a general rule, the statute of limitations for a quiet title action does not run against one in possession of land"). While, under some circumstances, the running of a statute of limitations may be tolled, plaintiff stated at the August 4, 2017 hearing that he learned of defendants' wrongful conduct in 2010. See O'Donnell v. Vencor, Inc., 465 F.3d 1063, 1068 (9th Cir. 2006) (quoting Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990) ("Equitable tolling is generally applied in situations 'where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass.'").

In this regard, the complaint's claims for unfair debt collection,...