Vega v. Jpmorgan Chase Bank, N.A., Case No. CV F 09-1444 LJO GSA.

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
• Citation: 654 F.Supp.2d 1104
• Decision Date: 26 August 2009
• Docket Number: Case No. CV F 09-1444 LJO GSA.
• Parties: Andes VEGA, et al., Plaintiffs, v. JPMORGAN CHASE BANK, N.A., et al, Defendants.

654 F.Supp.2d 1104

Andes VEGA, et al., Plaintiffs, v. JPMORGAN CHASE BANK, N.A., et al, Defendants.

Case No. CV F 09-1444 LJO GSA.

United States District Court, E.D. California.

August 26, 2009.

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Andes Vega, Tulare, CA, pro se.

Fabiola Vega, Tulare, CA, pro se.

John M. Sorich, S. Christopher Yoo, Adorno Yoss Alvarado & Smith, Santa Ana, CA, for Defendants.

ORDER TO DISMISS ACTION (Doc. 6.)

LAWRENCE J. O'NEILL, District Judge.

INTRODUCTION

Defendants JPMorgan Chase Bank, N.A. ("Chase") and Deutsche Bank National Trust Company ("Deutsche") seek to dismiss as meritless, lacking necessary elements and time barred pro se plaintiffs Andes Vega and Fabiola Vega's (collectively "plaintiffs'") eleven claims arising from first and second mortgage loans secured by their Tulare residence ("property"). Like many before them, plaintiffs rely on unsupported factual and legal claims which this and other Courts have rejected and continue to reject routinely. This Court addresses sua sponte F.R.Civ.P. 12(b)(6) dismissal of plaintiffs' claims on the record and VACATES the October 27, 2009 hearing set by Chase and Deutsche (collectively "defendants"). For the reasons discussed below, this Court DISMISSES this action against defendants.

BACKGROUND

Plaintiffs' Loans And Default

Plaintiffs are married and obtained a $252,000 first loan ("first loan") for the property and which was secured by a first deed of trust ("first DOT") encumbering the property and recorded on April 19, 2006.¹ The first DOT identifies Long Beach Mortgage Company ("LBMC") as the lender, trustee and beneficiary.

Plaintiffs obtained a $63,000 second loan ("second loan") for the property and which was secured by a second deed of trust ("second DOT") encumbering the property and recorded on April 19, 2006. The second DOT identifies LBMC as lender and Chicago Title as trustee and beneficiary.

After plaintiffs defaulted, a notice of default and election to sell under deed of trust ("NOD") was recorded on December 17, 2008. The NOD indicates that plaintiffs were $20,115.71 behind in payments as of December 15, 2008. The NOD states:

The beneficiary or its designated agent declares that it has contacted the borrower, tried with due diligence to contact the borrower as required by California Civil Code 2935.5, or the borrower has surrendered the property to the beneficiary or authorized agent, or is otherwise exempt from the requirements of § 2935.5.

By an assignment recorded on December 17, 2008, Chase assigned to Deutsche all beneficial interest in the first DOT. By a substitution recorded on December 17, 2008, California Reconveyance Company was substituted as trustee under the first DOT.

A trustee's sale notice was recorded on March 20, 2009 and indicates that the unpaid balance as of March 18, 2009 was $278,473.36.

Plaintiffs' Claims

Plaintiffs filed their original complaint on March 9, 2009 in Tulare County Superior Court. Plaintiffs proceed on their operative second amended complaint ("SAC") following defendants' removal to this Court. The SAC alleges that defendants "forced" plaintiffs into the first and second loans and mislead plaintiffs to believe that plaintiffs could afford monthly payments with hopes that plaintiffs would fail to repay the first and second loans to allow defendants to "repossess" the property. The SAC alleges 11 claims which this Court will address below and seeks compensatory and punitive damages, an injunction to prohibit a trustee's sale, and declaratory relief to the effect that foreclosure of the property is unlawful.

DISCUSSION

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

Defendants attack plaintiffs' claims as "uncertain and ambiguous" and for failure "to allege facts which would support a cognizable cause of action."

"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, 109 S.Ct. 1827, 104 L.Ed.2d 338 (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).

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." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (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." Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.1990); Graehling v. Village of Lombard, III, 58 F.3d 295, 297 (7th Cir.1995).

In resolving a F.R.Civ.P. 12(b)(6) motion, the 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 "free to ignore legal conclusions, unsupported conclusions, unwarranted inferences and sweeping legal conclusions cast in the form of factual allegations." Farm Credit Services v. American State Bank, 339 F.3d 764, 767 (8th Cir.2003) (citation omitted). A court need not permit an attempt to amend a complaint if "it determines that the pleading could not possibly be cured by allegation of other facts." Cook, Perkiss and Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir.1990). "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. 544, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (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, ___ U.S. ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (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.

. . . Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. (Citation omitted.)

Moreover, a limitations defense may be raised by a F.R.Civ.P. 12(b)(6) motion to dismiss. Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir.1980); see Avco Corp. v. Precision Air Parts, Inc., 676 F.2d 494, 495 (11th Cir.1982), cert. denied, 459 U.S. 1037, 103 S.Ct. 450, 74 L.Ed.2d 604 (1982). A F.R.Civ.P. 12(b)(6) motion to dismiss may raise the limitations defense when the statute's running is apparent on the complaint's face. Jablon, 614 F.2d at 682. If the limitations defense does not appear on the complaint's face and the trial court accepts matters outside the pleadings' scope, the defense may be raised by a motion to dismiss accompanied by affidavits. Jablon, 614 F.2d at 682; Rauch v. Day and Night Mfg. Corp., 576 F.2d 697 (6th Cir.1978).

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. 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 claim; and (3) no party questions the authenticity of the copy attached to the 12(b)(6) motion." Marder v. Lopez, 450 F.3d 445, 448 (9th Cir.2006). A court may treat such a document as "part of the complaint, and thus may assume that its contents are true for purposes of a motion to dismiss under Rule 12(b)(6)." United States v. Ritchie, 342 F.3d 903, 908 (9th Cir.2003). Such consideration prevents "plaintiffs from surviving a Rule 12(b)(6) motion by deliberately omitting reference to documents upon which their claims are based." Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir.1998). A "court may disregard allegations in the complaint if contradicted by facts established by exhibits attached to the complaint." Sumner Peck Ranch v. Bureau of Reclamation, 823 F.Supp. 715, 720 (E.D.Cal.1993) (citing ...