CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Decision Date31 March 2011
Docket NumberCASE NO. CV F 11-0352 LJO DLB




Dated: March 31, 2011



Several defendants1 seek to dismiss as legally barred and inadequately pled plaintiff Susana Islas Dooms' ("Ms. Dooms") claims arising from her home loan default, failed loan modification, and trustee's sale of her Fresno residence ("property"). This Court considered the moving defendants' F. R. Civ. P. 12(b)(6) motion to dismiss on the record and VACATES the April 25, 2011 hearing, pursuant to Local Rule 230(g). For the reasons discussed below, this Court DISMISSES this action against the moving defendants.

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The complaint alleges that Ms. Dooms was induced not to make home loan payments to qualify her for loan modification and was assured that the property would not be subject to foreclosure. Ms. Dooms did not obtain a loan modification, and through foreclosure proceedings, the property was sold at a trustee's sale. The complaint alleges against the moving defendants, Countrywide and defendant Cal-Western Reconveyance Corporation ("Cal-Western Reconveyance")3 California common law and statutory claims which will be discussed below. The complaint seeks to set aside the trustee's sale and to reconvey the property to Ms. Dooms.

Ms. Dooms' Loans

Ms. Dooms obtained from Plaza Homemortgage, Inc. a December 21, 2006 loan for $310, 000 and secured by a Deed of Trust ("first DOT") on the property. The first DOT identifies Chicago Title as trustee and MERS as beneficiary and was recorded on December 28, 2006. 4

In August 2007, Ms. Dooms received a $55, 000 line of credit from Countrywide and secured by a Deed of Trust and Assignment of Rents ("second DOT") on the property. The second DOT was recorded on August 15, 2007.

Loan Modification Attempts

In 2007, Ms. Dooms "experienced financial difficulties. " In early 2008, Ms. Dooms requested a loan modification from Countrywide for a reduced monthly mortgage payment. In June 2008, Countrywide advised Ms. Dooms that to qualify for "any available loan modification program, " Ms. Dooms must be "in default for three months. " Ms. Dooms stopped making her mortgage payments for July, August and September 2008.

In September 2008, Ms. Dooms telephoned Countrywide and was informed that Countrywide

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"had no record of her loan because her loan was sold to Ocwen. " Ocwen confirmed taking over Ms. Dooms' loan but lacked a record of her loan modification request. Ocwen informed Ms. Dooms to request loan modification through Ocwen's website, and Ms. Dooms submitted three online requests for loan modification. Ms. Dooms later mailed a loan modification package to Ocwen. In following months during 2009, Ms. Dooms inquired of Ocwen about her loan modification and faxed "the same documents at least five times before Ocwen would confirm receipt. "

Foreclosure Proceedings

By an Assignment of Deed of Trust ("Ocwen DOT assignment") dated April 1, 2009, MERS assigned to Ocwen all beneficial interest under the first DOT. The Ocwen DOT assignment was notarized on April 19, 2010 and recorded on April 22, 2010.

In July 2008, Ms. Dooms defaulted on her first DOT loan. On April 23, 2009, Cal-Western Reconveyance for Ocwen recorded a Notice of Default which noted that Ms. Dooms was $17, 451. 66 in arrears as of April 22, 2009 on her first DOT loan.

On June 9, 2009, Cal-Western Reconveyance recorded a Substitution of Trustee ("trustee substitution") by which MERS substituted Cal-Western Reconveyance as trustee under the first DOT. MERS executed the trustee substitution on April 1, 2009.

On November 17, 2009, Cal-Western Reconveyance recorded a Notice of Trustee's Sale ('trustee's sale notice") to set a December 3, 2009 sale. Cal-Western Reconveyance executed the trustee's sale notice on November 3, 2009. The trustee's sale notice was not posted on the property.

By an Assignment of Deed of Trust California ("Freddie Mac DOT assignment") executed and notarized on January 4, 2010, Ocwen assigned to Freddie Mac its interest in the first DOT. The Freddie Mac DOT assignment was recorded on May 7, 2010 and states that it "is made and entered into as of the 16th day of January 2009. " An allonge is attached to the Freddie Mac DOT assignment to transfer Ms. Dooms' $310, 000 promissory note to Freddie Mac. The allonge states that its effective date is January 16, 2009.

Ms. Dooms telephoned Ocwen regarding the trustee's sale notice and "was assured by an Ocwen representative that her Property would not be sold because she was in a loan modification process. " Each time the trustee's sale was postponed, Ms. Dooms "was assured by Ocwen that her Property would

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not be sold, and it was not. " After three postponements, the property was set for an April 26, 2010 sale.

On April 17, 2010, "Scott" at Ocwen informed Ms. Dooms that she "qualified for a loan modification with his department" and that "he would make sure that the Property was taken off of calendar for the sale scheduled on April 26, 2010. "

Ocwen's April 17, 2010 letter informed Ms. Dooms that she had until May 17, 2010 to submit documents to support her loan modification.

On April 26, 2010, Ocwen sold the property to Freddie Mac. A Trustee's Deed Upon Sale was recorded on May 7, 2010.

Ms. Dooms "would never have defaulted on her mortgage had she known her home would be foreclosed" in that her father "was ready, willing, and able to cure her default. " Ms. Dooms "defaulted on her mortgage payments for the sole purpose of qualifying for a loan modification program, as advised by Countrywide and Ocwen. "

Ms. Dooms' Claims

The complaint alleges against the moving defendants fourteen California common law and statutory claims which will be addressed below. The complaint seeks to enjoin defendants from evicting Ms. Dooms and from transferring the property. The complaint seeks to cancel the Trustee's Deed Upon Sale, set aside the foreclosure and reconvey the property's title to Ms. Dooms. The complaint seeks recovery for Ms. Dooms' "mental anguish" and punitive damages.


F. R. Civ. P. 12(b)(6) Motion To Dismiss Standards

The moving defendants challenge the complaint's claims as legally barred and lacking elements to support claims.

"A trial court may dismiss a claim sua sponte under Fed. R. Civ. P. 12(b)(6).... Such dismissal may be made without notice where the claimant cannot possibly win relief. " Omar v. Sea-Land Service, Inc., 813 F. 2d 986, 991 (9th Cir. 1987); see Wong v. Bell, 642 F. 2d 359, 361-362 (9th Cir. 1981). Sua sponte dismissal may be made before process is served on defendants. Neitzke v. Williams, 490 U. S. 319, 324 (1989) (dismissals under 28 U. S. C. § 1915(d) are often made sua sponte); Franklin v. Murphy, 745 F. 2d 1221, 1226 (9th Cir. 1984) (court may dismiss frivolous in forma pauperis action sua sponte

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prior to service of process on defendants).

"When a federal court reviews the sufficiency of a complaint, before the reception of any evidence either by affidavit or admissions, its task is necessarily a limited one. The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. " Scheurer v. Rhodes, 416 U. S. 232, 236, 94 S. Ct. 1683 (1974); Gilligan v. Jamco Development Corp., 108 F. 3d 246, 249 (9th Cir. 1997). A F. R. Civ. P. 12(b)(6) dismissal is proper where there is either a "lack of a cognizable legal theory" or "the absence of sufficient facts alleged under a cognizable legal theory. " Balisteri v. Pacifica Police Dept., 901 F. 2d 696, 699 (9th Cir. 1990); Graehling v. Village of Lombard, Ill., 58 F. 3d 295, 297 (7th Cir. 1995).

In addressing dismissal, a court must: (1) construe the complaint in the light most favorable to the plaintiff; (2) accept all well-pleaded factual allegations as true; and (3) determine whether plaintiff can prove any set of facts to support a claim that would merit relief. Cahill v. Liberty Mut. Ins. Co., 80 F. 3d 336, 337-338 (9th Cir. 1996). Nonetheless, a court is not required "to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences. " In re Gilead Sciences Securities Litig., 536 F. 3d 1049, 1055 (9th Cir. 2008) (citation omitted). A court "need not assume the truth of legal conclusions cast in the form of factual allegations, " U. S. ex rel. Chunie v. Ringrose, 788 F. 2d 638, 643, n. 2 (9th Cir. 1986), and a court must not "assume that the [plaintiff] can prove facts that it has not alleged or that the defendants have violated... laws in ways that have not been alleged. " Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U. S. 519, 526, 103 S. Ct. 897 (1983). A court need not permit an attempt to amend if "it is clear that the complaint could not be saved by an amendment. " Livid Holdings Ltd. v. Salomon Smith Barney, Inc., 416 F. 3d 940, 946 (9th Cir. 2005).

A "plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. " Bell Atl. Corp. v. Twombly, 550 U. S. 554, 127 S. Ct. 1955, 1964-65 (2007) (internal citations omitted). Moreover, a court "will dismiss any claim that, even when construed in the light most favorable to plaintiff, fails to plead sufficiently all required elements of a cause of action. " Student Loan Marketing Ass'n v. Hanes, 181 F. R. D. 629, 634 (S. D. Cal. 1998). In practice, "a complaint... must contain either

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direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory. " Twombly, 550 U. S. at 562, 127 S. Ct. at 1969 (quoting ...

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