Rodela v. Guild Mortg. Co., CASE NO. CV F 11-2126 LJO BAM

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Decision Date18 January 2012
Docket NumberCASE NO. CV F 11-2126 LJO BAM,Doc. 4.
PartiesVALERIE RODELA, Plaintiff, v. GUILD MORTGAGE CO., Defendant.




Dated: January 18, 2012



Defendant Guild Mortgage Company ("Guild") seeks to dismiss as legally barred pro se plaintiff Valerie Rodela ("Ms. Rodela's") claims arising from her loan default for and foreclosure of her Fresno property ("property"). This Court construes Ms. Rodela's action as an attempt to thwart, delay or complicate post-foreclosure property matters. For the reasons discussed below, this Court DISMISSES this action based on the absence of Ms. Rodela's credible claims and VACATES the February 6, 2012 hearing set by Guild.


Ms. Rodela's Loan And Property Foreclosure

On March 19, 2010, Ms. Rodela obtained from Guild a $199,323 loan secured by a Deed of Trust

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("DOT") on the property and which was recorded on March 30, 2010.2 Ms. Rodela was in default of the loan as of May 2010.

On November 9, 2010, a Notice of Default and Election to Sell under Deed of Trust ("default notice") was recorded against the property. A copy of the default notice was sent by certified mail to the property address on November 12, 2010.

In December 2010, Ms. Rodela requested Guild for a loan modification and "offered to pay the past due mortgage as well as the monthly mortgage payment." Guild denied Ms. Rodela loan modification based on her unemployment. Guild also denied Ms. Rodela's May 2011 loan modification request.

On May 13, 2011, a Notice of Trustee's Sale ("sale notice") for the property was recorded. On May 11, 2011, the sale notice was sent to Ms. Rodela at the property's address and to another Fresno address.

On June 7, 2011, Ms. Rodela filed a Chapter 7 bankruptcy action which was dismissed on June 27, 2011 after Ms. Rodela failed to file required documents.

On June 28, 2011, Ms. Rodela filed a Chapter 13 bankruptcy action which was dismissed on July 18, 2011 after Ms. Rodela failed to file required documents.

During this time period, Ms. Rodela submitted a third loan modification request which Guild denied on July 13, 2011 based on Ms. Rodela's making only one loan payment, unemployment, and bankruptcy filings.

The property sold at a July 20, 2011 trustee's sale.

Ms. Rodela's Claims

Prior to Guild's removal to this Court, Ms. Rodela filed her complaint on July 21, 2011 in Fresno County Superior Court to allege common law and statutory claims focusing on Guild's purported failure to provide required notices. The complaint seeks damages and injunctive relief to prevent Guild from taking property possession.

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Sua Sponte Dismissal

Guild characterizes the complaint as "a series of conclusory allegations concerning the origination and foreclosure of her property" with no "supporting facts that can withstand a motion to dismiss."

"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 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

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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 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

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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, 556 U.S. 662, 129...

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