Robinson v. Bank Of Am.

• Decision Date: 09 December 2010
• Docket Number: CASE NO. CV F 10-2135 LJO GSA
• Court: U.S. District Court — Eastern District of California
• Parties: LUCY ROBINSON, Plaintiff, v. BANK OF AMERICA, N.A., Defendant.

LUCY ROBINSON, Plaintiff,

v.BANK OF AMERICA, N.A., Defendant.

CASE NO. CV F 10-2135 LJO GSA

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

DATE: December 9, 2010

ORDER TO DISMISS ACTION

(Doc. 12.)

INTRODUCTION

Defendant Bank of America, N.A. ("B of A"), seeks to dismiss as legally barred pro se plaintiff Lucy Robinson's ("Ms. Robinson's") claims arising from her defaulted property loan and foreclosure. This Court considered B of A's F.R.Civ.P. 12(b)(6) motion to dismiss on the record and VACATES the January 27, 2011 hearing, pursuant to Local Rule 230(g). For the reasons discussed below, this Court DISMISSES this action against B of A.

BACKGROUND

Ms. Robinson's Loan And Default

Ms. Robinson executed a November 5, 2007 note payable to Countrywide Bank, FSB ("Countrywide"), in the amount of $223,250. The note is secured by a Deed of Trust ("DOT") on Ms. Robinson's Visalia property ("property"), which Ms. Robinson describes as a house run as a bed and breakfast. The DOT was recorded on November 16, 2007¹ and identifies Recontrust Company, N.A. ("Recontrust"), as trustee and Mortgage Electronic Registration Systems, Inc. ("MERS") as beneficiary. In November 2009, Ms. Robinson stopped making note payments.

On April 29, 2010, Quality Loan Service Corp. ("Quality Loan"), as MERS agent, recorded a Notice of Default and Election to Sell Under Deed of Trust ("default notice") to indicate that Ms. Robinson owed $19,251.33 as of April 28, 2010.²

On May 13, 2010, an Assignment of Deed of Trust was recorded to assign the beneficial interest under the DOT to BAC Home Loans Servicing, LP in place of MERS as beneficiary. On July 6, 2010, a Substitution of Trustee was recorded to substitute Quality Loan as DOT trustee in place of Recontrust. On August 3, 2010, Quality Loan recorded a Notice of Trustee's Sale to set an August 23, 2010 foreclosure sale of the property. The record does not reflect the property's sale.

Ms. Robinson's Claims

On August 20, 2010, Ms. Robinson filed her operative complaint ("complaint") in Tulare County Superior Court, and B of A removed the action to this Court. The complaint alleges that:

1. In June 2010, Ms. Robinson "tried to apply for the Bank of America Home Loan Modification Program";

2. B of A representatives "advised her that she wouldn't be eligible for that program, since she was a small business owner"; and

3. B of A representatives "suggested a home loan modification program for small business and commercial property, which Plaintiff applied to."

B of A notes the absence in the record that B of A "either accepted or denied the small business loan modification."

The complaint alleges claims of breach of contract, defective service and fraud, which will be addressed in greater detail below. The complaint seeks to recover punitive damages and for Ms. Robinson's emotional distress.

DISCUSSION

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

B of A seeks to dismiss this action in the absence of Ms. Robinson's tender of amounts owed to establish her standing to pursue her claims. B of A offers further legal challenges to Ms. Robinson's claims, including the statute of frauds and lack of required particularized pleading.

"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 (9^th Cir. 1987); see Wong v. Bell, 642 F.2d 359, 361-362 (9^th 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 (9^th Cir. 1984) (court may dismiss frivolous in forma pauperis action sua sponte prior to service of process on defendants).

A F.R.Civ.P. 12(b)(6) motion to dismiss is a challenge to the sufficiency of the pleadings set forth in the complaint. "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 (9^th 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 (9^th Cir. 1990); Graehling v. Village of Lombard, Ill., 58 F.3d 295, 297 (7^th Cir. 1995).

In resolving a F.R.Civ.P. 12(b)(6) motion, 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 (9^th 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 (9^th 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 (9^th Cir. 2005).

"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, 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 (7^th Cir. 1984)).

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

To survive a motion to dismiss, 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 a motion to dismiss, 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 (9^th Cir. 2009) (quoting Iqbal, __ U.S. _, 129 S.Ct. at 1949).

The U.S. Supreme Court applies a "two-prong approach" to address a motion to dismiss: 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 choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.

Iqbal, __ U.S. _, 129 S.Ct. at 1949-1950.

For a F.R.Civ.P. 12(b)(6) motion, a court generally cannot consider material outside the complaint. Van Winkle v. Allstate Ins. Co., 290 F.Supp.2d 1158, 1162, n. 2 (C.D. Cal. 2003). Nonetheless, a court may consider exhibits submitted with the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9^th Cir. 1987);Van Winkle, 290 F.Supp.2d at 1162, n. 2. In addition, a "court may consider evidence on which the complaint 'necessarily relies' if: (1) the complaint refers to the document; (2) the document is central to the plaintiff's...