Lopez v. GMAC Mortg.

Decision Date05 December 2011
Docket NumberCASE NO. CV F 11-1795 LJO JLT,Doc. 5.
CourtU.S. District Court — Eastern District of California
PartiesCARMEN LOPEZ, Plaintiff, v. GMAC MORTGAGE, et al., Defendants.

CARMEN LOPEZ, Plaintiff,
GMAC MORTGAGE, et al., Defendants.



Dated: December 5, 2011


Defendants GMAC Mortgage, LLC ("GMAC") and Executive Trustee Services, LLC ("ETS") seek to dismiss as legally barred and time barred plaintiff Carmen Lopez' ("Ms. Lopez'") claims arising out of the defaulted loan for and foreclosures on her Bakersfield property ("property"). Ms. Lopez filed no papers to oppose timely GMAC and ETS' (collectively "defendants'") F.R.Civ.P. 12(b)(6) motion to dismiss. This Court considered defendants' F.R.Civ.P. 12(b)(6) motion to dismiss on the record and VACATES the December 15, 2011 hearing, pursuant to Local Rule 230(c), (g). For the reasons discussed below, this Court DISMISSES this action against defendants.


Ms. Lopez' Loan And Property Foreclosure

On October 3, 2007, Ms. Lopez financed the property's purchase with a $233,494 loan from

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GMAC. A Deed of Trust ("DOT") was recorded on October 5, 2007 to secure the loan.1 The DOT names ETS as trustee and Mortgage Electronic Registration Systems, Inc. ("MERS") as beneficiary, acting solely as nominee for lender GMAC.

On August 28, 2009, a Substitution of Trustee was recorded whereby ETS became DOT trustee. In early 2010, Ms. Lopez experienced difficulties making her monthly loan payments and attempted to obtain a loan modification with GMAC. GMAC rejected Ms. Lopez' partial payment and told her they could not accept such payments because she was under review for loan modification.

On May 3, 2010, ETS recorded a Notice of Default and Election to Sell under Deed of Trust which indicated that Ms. Lopez was $36,582.62 in arrears as of April 30, 2010.

In June 2010, plaintiff attempted again to work out a loan modification but never received the loan application as promised. In August 2010, GMAC informed Ms. Lopez that she did not qualify for loan modification and that ETS proceeded toward property foreclosure.

In August 2010, Ms. Lopez again attempted to obtain loan modification and provided GMAC requested financial documents. On September 21, 2010, MERS assigned its beneficial interest under the DOT to GMAC, and a corresponding Assignment of Deed of Trust was recorded on October 1, 2010. In February 2011, GMAC declined Ms. Lopez for loan modification.

On May 12, 2011, a Notice of Trustee's Sale for the property was recorded. On August 24, 2011, the property's foreclosure sale occurred, and GMAC became record title owner of the property. A Trustee's Deed upon Sale was recorded on August 30, 2011.

Ms. Lopez' Claims

On September 15, 2011, prior to removal to this Court, Ms. Lopez filed her Verified Complaint ("complaint") to allege California statutory and common law claims which will be addressed below. The complaint alleges that "GMAC failed to act as reasonable lender by placing the Plaintiff in a risky unreasonable and unaffordable loan." The complaint accuses GMAC of knowing that once the loan became unaffordable, Ms. Lopez "would be forced to either refinance or have a foreclosure" and of failing "to disclose the terms and risks of the Subject Loan in any meaningfully [sic] way." The

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complaint seeks damages of "loss money and property," a declaration that the foreclosure sale is void and unenforceable, an injunction to evict Ms. Lopez, rescission of the promissory note and foreclosure sale, and punitive damages.


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

Defendants fault the complaint's failure to allege factual claims that "give rise to a valid claim" given the complaint's speculative and conclusory allegations which are unclear as to "which defendants are being named under each claim."

"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. Pacifca Police Dept., 901 F.2d 696, 699 (9th Cir. 1990); Graehling v. Village of Lombard, Ill., 58 F.3d 295, 297 (7th Cir. 1995). A F.R.Civ.P. 12(b)(6) motion "tests the legal sufficiency of a claim." Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001).

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 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

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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 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 Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984)).

In Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937,1949 (2009), the U.S. Supreme Court explained:

. . . a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." . . . 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. . . . 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. (Citations omitted.)

After discussing Iqbal, the Ninth Circuit Court of Appeals summarized: "In sum, for a complaint to survive [dismissal], 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 Service, 572 F.3d 962, 989 (9th Cir. 2009) (quoting Iqbal, 556 U.S. 662, 129 S.Ct. at 1949).

The U.S. Supreme Court applies a "two-prong approach" to address dismissal:

First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. . . . Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. . . . Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. . . . But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not "show[n]"-"that the pleader is entitled to relief." Fed. Rule Civ. Proc. 8(a)(2).

In keeping with these principles a court considering a motion to dismiss can

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choose to begin by identifying pleadings that, because they are no more than conclusions, are not

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