Pedersen v. Greenpoint Mortg. Funding, Inc., CIV No. S-11-0642 KJM EFB
| Decision Date | 26 August 2011 |
| Docket Number | CIV No. S-11-0642 KJM EFB |
| Parties | CHRISTIAN PEDERSEN and SONIKA TINKER, Plaintiffs, v. GREENPOINT MORTGATE FUNDING, Inc., a New York Corporation; MARIN CONVEYANCING CORP.: MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC.; QUALITY LOAN SERVICE CORP.; AURORA LOAN SERVICES; LSI TITLE COMPANY; GREENPOINT MORTGAGE FUNDING TRUST MORTGAGE PASS- THROUGH CERTIFICATES, SERIES 2007-AR1 and DOES ONE THROUGH 20, Defendants. |
| Court | U.S. District Court — Eastern District of California |
On June 8, 2011, the court heard argument on plaintiffs' motion for a preliminary injunction and defendants' motion to dismiss. Holly S. Burgess appeared for plaintiffs, who were present in court; Matthew Learned of McCarthy & Holthus, LLP, appeared telephonically for defendants Aurora Loan Services LLC (Aurora) and Mortgage Electronic Registration Services, Inc. (MERS).
On March 8, 2011, plaintiffs filed an action against Aurora and MERS, as well as Greenpoint Mortgage Funding, Inc., Marin Conveyancing Corp., Quality Loan Service Corp., LSI Title Company, Greenpoint Mortgage Funding Trust Mortgage Pass-Through Certificates, Series 2007-ARI, and twenty Doe defendants, alleging violations of the Homeowners Equity Protection Act (HOEPA), 15 U.S.C. § 1639, et seq.; the Real Estate Settlement Procedures Act (RESPA), 12 U.S.C. § 2601, et seq.; the Truth in Lending Act (TILA), 15 U.S.C. § 1601, et seq. and Regulation Z § 226.4; fraudulent misrepresentation; breach of fiduciary duty; unjust enrichment; civil conspiracy; RICO; quiet title; usury and fraud; wrongful foreclosure; and breach of trust instruments.
On April 7, 2011, plaintiffs filed a motion for a temporary restraining order, alleging that a trustee's sale of their house was scheduled for April 11, 2011, but that defendants did not have the legal authority to foreclose on plaintiffs' property. ECF No. 9. Although plaintiffs gave defendants notice of their application for a restraining order, defendants did not respond. ECF No. 14. The court denied the application on April 8, 2011.
Defendants Aurora and MERS filed a motion to dismiss and to expunge a lis pendens on April 15, 2011, in tandem with a request for judicial notice. ECF Nos. 16 & 17. Plaintiffs have asked the court to take judicial notice of additional materials in connection with their opposition to the motion to dismiss. ECF Nos. 25-26, 29.
On April 20, 2011, plaintiffs filed a motion for a preliminary injunction and asked the court to take judicial notice of still more documents. ECF Nos. 20-22. Defendants have submitted even more materials as part of their opposition to the request for injunctive relief. ECF No. 27.
On April 20, 2011, defendants Quality Loan Service Corporation and LSI Title Company filed Declarations of Non-Monetary Status under Cal. Civil Code § 2924l. ECF No. 18. On May 18, 2011, plaintiffs filed objections to these declarations. ECF No. 34.
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may move to dismiss a complaint for "failure to state a claim upon which relief can be granted." A court may dismiss "based on the lack of cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Department, 901 F.2d 696, 699 (9th Cir. 1990). A motion to dismiss under this rule may also challenge the sufficiency of fraud allegations under the more particularlized standard of Rule 9(b) of the Federal Rules of Civil Procedure. Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1107 (9th Cir. 2003).
Although a complaint need contain only "a short and plain statement of the claim showing that the pleader is entitled to relief," (Fed. R. Civ. P. 8(a)(2)), in order to survive a motion to dismiss this short and plain statement "must contain sufficient factual matter . . . to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, __ U.S. __ , 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 570 (2007)). A complaint must include something more than "an unadorned, the-defendant-unlawfully-harmed-me accusation" or "'labels and conclusions'" or "'a formulaic recitation of the elements of a cause of action.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). Determining whether a complaint will survive a motion to dismiss for failure to state a claim is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 129 S.Ct. at 1950. Ultimately, the inquiry focuses on the interplay between the factual allegations of the complaint and the dispositive issues of law in the action. See Hishon v. King & Spa/ding, 467 U.S. 69, 73 (1984).
In making this context-specific evaluation, this court must construe the complaint in the light most favorable to the plaintiff and accept as true the factual allegations of the complaint. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). This rule does not apply to "'a legal conclusion couched as a factual allegation,'" Papasan v. Allain, 478 U.S. 265, 286 (1986) (quoted in Twombly, 550 U.S. at 555), nor to "allegations that contradict matters properly subjectto judicial notice" or to material attached to or incorporated by reference into the complaint. Sprewell v. Golden State Warriors, 266 F.3d 979, 988-89 (9th Cir. 2001). A court's consideration of documents attached to a complaint or incorporated by reference or matter subject to judicial notice will not convert a motion to dismiss into a motion for summary judgment. United States v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003); Parks School of Business v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995); compare Van Buskirk v. CNN, 284 F.3d 977, 980 (9th Cir. 2002) ().
Defendants ask the court to take judicial notice of a number of documents recorded in Placer County, all relating to the acquisition of and foreclosure on 1977 Green Meadow Lane, Meadow Vista, California. Defendants' Request For Judicial Notice (DRFJN), ECF No. 17, Exs. A-E. Under Rule 201 of the Federal Rules of Evidence, a court may take judicial notice of adjudicative facts "not subject to reasonable dispute" because they are "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Plaintiff does not object to the court's consideration of these documents, most of which are attached to the complaint. These are properly before the court. Champlaie v. BAC Home Loans Servicing, LP, 706 F.Supp.2d 1029, 1040 (E.D. Cal. 2009); Lee v. County of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) ().
Plaintiffs have asked the court to take judicial notice of several types of information. The first is a decision in a bankruptcy court matter, which they believe supports their position. See In re Salazar, 448 B.R. 814 (Bankr. S.D. Cal. 2011). Second, they have proffered a Consent Order, Stipulation and Consent to Issuance of Consent Order, Amended Order to Cease and Desist, all stemming from proceedings in the federal Office of Thrift Supervision, In the Matter Of Aurora Bank FSB, NE-11-16 and NE-10-33, and a Consent Orderand Stipulation and Consent To The Issuance of a Consent Order issued by the Office of Thrift Supervision in In the Matter of MERSCORP, Inc., AA-EC-11-20. Third, they have presented the declaration of Daniel Edstrom, concerning his search for the Trust Agreement, the Prospectus Supplement, the monthly certificateholders' statement and the monthly loan level files related to the Greenpoint Mortgage Funding Trust Mortgage Pass-Through Certificates, Series 2007-AR1. Edstrom avers that he has traced plaintiffs' loan, number 0124382367, and has provided the loan level file from March 25, 2011, which he pasted into a spreadsheet and which, he avers, demonstrates that "the payments on Plaintiffs' loan are being made." ECF No. 29, Declaration of Daniel Edstrom, ¶¶ 12, 15 & Ex. 3.
The court declines to take judicial notice of In re Salazar, supra, as the decision itself is not an adjudicative fact. See FED. R. EV. 201, comment (" "). Nevertheless, to the extent the decision has any bearing on the pending motions, the court will consider it in resolving those motions.
The court will take judicial notice of the various orders and stipulations relating to OTS's orders and decrees involving Aurora Bank and MERS, as these are federal government documents, readily available on the Office of Thrift Supervision's website. See Serrano v. World Savings Bank, 2011 WL 1668631, at *2 (N.D. Cal. May 3, 2011) ().
Finally, the court declines to take judicial notice of Daniel Edstrom's declaration and its attached exhibits. While the Greenpoint Mortgage trust document and prospectus may be publicly available on the SEC's website, the court does not find them relevant to the issues posed by the pending motions. Exhibit 3, which Edstrom describes as a manipulated record of the activity in plaintiffs' loan, is not subject to judicial notice: there is nothing else in the record connecting the loan number Edstrom searched to plaintiffs and nothing clearly demonstratingthat payments are being made on plaintiffs' loan, as he claims. This information is not subject to accurate and ready determination in light of the record before the court.
As noted, the complaint alleges violations of the Homeowners Equity Protection Act (H...
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