Jara v. Aurora Loan Servs.
| Decision Date | 30 March 2012 |
| Docket Number | No. C 11–00419 LB.,C 11–00419 LB. |
| Citation | 852 F.Supp.2d 1204 |
| Court | U.S. District Court — Eastern District of California |
| Parties | Jose A. JARA, Plaintiff, v. AURORA LOAN SERVICES, et al., Defendants. |
OPINION TEXT STARTS HERE
Patricia Ann Turnage, Law Offices of Patricia Turnage, Glenn Lee Moss, Moss & Murphy, Hayward, CA, for Plaintiff.
Justin Donald Balser, Victoria Elena Edwards, Akerman Senterfitt LLP, Denver, CO, Michael Bryan Wall, Akerman Senterfitt LLP, Los Angeles, CA, Nicole Kimberly Neff, Wright Finlay & Zak, LLP, Newport Beach, CA, for Defendants.
ORDER (1) GRANTING DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S FOURTH AMENDED COMPLAINT AND (2) DENYING AS MOOT DEFENDANTS' MOTION TO STRIKE PLAINTIFF'S OPPOSITION BRIEF
Plaintiff Jose Jara sued Defendants Aurora Loan Services, LLC (“Aurora”) and Mortgage Electronic Registration Systems (“MERS”) (collectively, “Defendants”) for violation of federal and state law in connection with the foreclosure and sale of his property in South San Francisco, California. Fourth Amended Complaint (“Fourth AC”), ECF No. 72.1
Before the court is Defendants' motion to dismiss Mr. Jara's Fourth Amended Complaint. Motion to Dismiss (“MTD”), ECF No. 74–1. Pursuant to Civil Local Rule 7–1(b), the court finds this matter suitable for determination without oral argument and vacates the April 5, 2012 hearing. For the reasons explained below, the court GRANTS Defendants' motion and DISMISSES WITH PREJUDICE all of Mr. Jara's claims.
On January 18, 2006, Mr. Jara purchased property at 330 Arbor Drive in South San Francisco, California. Fourth AC, ECF No. 72, ¶¶ 1, 5; Request for Judicial Notice (“RJN”), ECF No. 62, Ex. 3. To fund the purchase, he borrowed $865,000 from Pacific Community Mortgage, Inc. (“Pacific”), which packaged the loan as two separate notes. Fourth AC, ECF No. 72, ¶¶ 5, 6; RJN, ECF No. 62, Exs. 1, 2.2 Pacific subsequently transferred its servicing rights on the first note to Aurora. Fourth AC, ECF No. 49, ¶¶ 2, 5; RJN, ECF No. 62, Ex. 4.
In 2008, Mr. Jara “sustained substantial personal problems that qualified as a hardship under the [Home Affordable Modification Program] requiring modification of the terms of the subject obligation and security instruments.” Fourth AC, ECF No. 72, ¶ 7; see also RJN, ECF No. 62, Ex. 10 (notice of default). Thereafter, Mr. Jara entered into agreements to modify the terms of his loan. Fourth AC, ECF No. 72, ¶ 15.3 Mr. Jara alleges that he was current on his obligations under the agreements when California Western Reconveyance Corporation (“Cal Western”) recorded a notice of default on the property. Fourth AC, ECF No. 49, ¶¶ 9, 15–16; RJN, Ex. 10 (notice of default).
On August 25, 2010, Cal Western conducted a trustee's sale at which Aurora purchased the property. RJN, ECF No. 62, Ex. 13 ().
Mr. Jara filed the present lawsuit against Aurora, MERS, and Cal Western in San Mateo County Superior Court on November 10, 2010. Notice of Removal, ECF No. 1, Ex. 1 at 5–36 (“Complaint”). Thirteen days later, on November 23, 2010, he filed a First Amended Complaint as a matter of right. Notice of Removal, ECF No. 1, Ex. 2 at 40–49 (“FAC”). The First Amended Complaint added attorneys' fees and costs to the relief previously sought in the original complaint. Compare Notice of Removal, ECF No. 1, Ex. 1 at 13 with Notice of Removal, ECF No. 1, Ex. 2 at 48. On January 28, 2011, Aurora and MERS removed the case to this court. Notice of Removal, ECF No. 1 at 1–4. The court denied Mr. Jara's motion to remand on June 6, 2011. 06/06/2011 Order, ECF No. 30, 2011 WL 2197659.
Aurora, MERS, and Cal Western filed motions to dismiss the First Amended Complaint on June 28, 2011. Motion to Dismiss (Aurora and MERS), ECF No. 33; Joinder and Motion (Cal Western), ECF No. 34. Mr. Jara did not file an opposition to either motion. Instead, on August 16, 2011, he filed a Second Amended Complaint (titled as a “First Amended Complaint in Federal Court”), which the court struck from the record because he had neither the defendants' consent nor the court's permission to file it. Second Amended Complaint, ECF No. 41; Order Striking Second Amended Complaint, ECF No. 43. The court's order did, though, allow Mr. Jara to file a motion for leave to file another amended complaint, and he did so on August 29, 2011. Order Striking Second Amended Complaint, ECF No. 43 at 3; Motion for Permission to File Amended Complaint, ECF No. 44. On September 30, 2011, the court granted Mr. Jara's motion for leave to file another amended complaint. 09/30/2011 Order, ECF No. 48, 2011 WL 4536898.
Mr. Jara then timely filed his Third Amended Complaint. Third Amended Complaint (“TAC”), ECF No. 49. Aurora, MERS, and Cal Western moved to dismiss that complaint as well, and this time Mr. Jara opposed their motions. Motion to Dismiss TAC (Aurora and MERS), ECF No. 50; Joinder and Motion to Dismiss TAC (Cal Western), ECF No. 51; Opposition re: Motions to Dismiss TAC, ECF No. 58. On December 14, 2011, the court granted the defendants' motions, dismissing some of Mr. Jara's claims with prejudice and some without, and granting Mr. Jara leave to file a Fourth Amended Complaint. 12/14/2011 Order, ECF No. 68, 2011 WL 6217308.
Mr. Jara did so on January 20, 2012. Fourth AC, ECF No. 72. In his Fourth Amended Complaint, which is only brought against Aurora and MERS, he brings the following claims: (1) violation of the Truth in Lending Act (“TILA”), 15 U.S.C. § 1601 et seq.; (2) violation of the Federal Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692; (3) quiet title; (4) cancellation of instrument; (5) violation of California's Unfair Competition Law (“UCL”), Cal. Bus. & Prof.Code § 17200 et seq.; and (6) declaratory relief. See Fourth AC, ECF No. 72.4 Aurora and MERS again moved to dismiss the complaint. MTD, ECF No. 74–1. Mr. Jara opposed the motion. Opposition, ECF No. 78.5
A court may dismiss a complaint under Federal Rule of Civil Procedure 12(b)(6) when it does not contain enough facts to state a claim to relief that is plausible on its face. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955.). Twombly, 550 U.S. at 555, 127 S.Ct. 1955 ().
In considering a motion to dismiss, a court must accept all of the plaintiff's allegations as true and construe them in the light most favorable to the plaintiff. See id. at 550, 127 S.Ct. 1955;Erickson v. Pardus, 551 U.S. 89, 93–94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007); Vasquez v. Los Angeles County, 487 F.3d 1246, 1249 (9th Cir.2007).
If the court dismisses the complaint, it should grant leave to amend even if no request to amend is made “unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir.2000) (). But when a party repeatedly fails to cure deficiencies, the court may order dismissal without leave to amend. See Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir.1992) ().
Mr. Jara brings a claim against Aurora for violation of TILA. TILA aims to “avoid the uninformed use of credit.” 15 U.S.C. § 1601(a). It “has the broad purpose of promoting ‘the informed use of credit’ by assuring ‘meaningful disclosure of credit terms' to consumers.” Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 559, 100 S.Ct. 790, 63 L.Ed.2d 22 (1980) (quoting 15 U.S.C. § 1601). It “requires creditors to provide borrowers with clear and accurate disclosures of terms dealing with things like finance charges, annual percentage rates of interest, and the borrower's rights.” Beach v. Ocwen Fed. Bank, 523 U.S. 410, 412, 118 S.Ct. 1408, 140 L.Ed.2d 566 (1998) (citing 15 U.S.C. §§ 1631, 1632, 1635 & 1638).
Mr. Jara alleges that Aurora failed to notify him of the “the identity of the actual owner” of his loans in violation of 15 U.S.C. § 1641(g). Fourth AC, ECF No. 72, ¶ 11. Subsection (g), which was added to § 1641 as part of the Helping Families Save Their Homes Act and which became effective on May 19, 2009, provides in relevant part:
In addition to other disclosures required by this subchapter, not later than 30 days after the date on which a mortgage loan is sold or otherwise transferred or assigned to a third party, the creditor that is the new owner or assignee of the debt shall notify the borrower in writing of such transfer, including—
(A) the identity, address, telephone number of the new creditor;
(B) the date of transfer;
(C) how to reach an agent or party having authority to act on behalf of the new creditor;
(D) the location of the place where transfer of ownership of...
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...for the purposes of the FDCPA when the loan was not in default when it was assigned to the loan servicer. See Jara v. Aurora Loan Servs., 852 F.Supp.2d 1204, 1211 (N.D. Cal. 2012). On the other hand, courts have found that a loan servicer failed to meet its burden on a motion to dismiss to ......
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...who are the new owners or assignees of a mortgage loan, and not the transferors of the mortgage loan. (Jara v. Aurora Loan Servs. (N.D.Cal.2012) 852 F.Supp.2d 1204, 1208–1209.) In the present case, Jenkins clearly alleges the violation of 15 United States Code section 1641(g) occurred when ......
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Rockridge Trust v. Wells Fargo, N.A.
...for the purposes of the FDCPA when the loan was not in default when it was assigned to the loan servicer. See Jara v. Aurora Loan Servs., 852 F.Supp.2d 1204, 1211 (N.D.Cal.2012). On the other hand, courts have found that a loan servicer failed to meet its burden on a motion to dismiss to sh......
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