-CW Mavis Murphy v. Metrocities Mortgage LLC et al, No. 2:2011cv02719 - Document 45 (C.D. Cal. 2011)

Court Description: ORDER Granting Motion to Dismiss and Remanding by Judge Dean D. Pregerson: Presently before the court is the Motion to Dismiss Plaintiff's First Amended Complaint 15 filed by Defendants Central Mortgage Company and Old Repubublic Default Manag ement Services. Defendants' Motion to Dismiss isGRANTED. Plaintiff's Fourth Cause of Action is dismissed as time barred. Remaining claims are REMANDED to state court. In addition, motions 37 38 41 are vacated. ( MD JS-6. Case Terminated ) (kpa)

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-CW Mavis Murphy v. Metrocities Mortgage LLC et al Doc. 45 1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MAVIS MURPHY, 12 Plaintiff, 13 14 15 16 v. METROCITIES MORTGAGE LLC; INVESTORS TITLE COMPANY; FIRST AMERICAN TITLE INSURANCE; MORTGAGE ELECTORNIC REGISTRATION SYSTEMS, 17 18 Defendants. ___________________________ 19 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 11-02719 DDP (CWx) ORDER GRANTING MOTION TO DISMISS AND REMANDING [Motion filed on 5/23/11] [Docket Number 15] Presently before the court is the Motion to Dismiss 20 Plaintiff’s First Amended Complaint filed by Defendants Central 21 Mortgage Company (“Central Mortgage”)and Old Repubublic Default 22 Management Services (“Old Republic”). 23 submissions of the parties, the court grants the motion and adopts 24 the following order.1 25 /// Having considered the 26 27 28 1 The court notes that Plaintiff’s Opposition does not appear to have been tailored to the instant motion. The Opposition cites to page numbers in Defendants’ Motion that do not exist and addresses arguments not raised in Defendants’ motion or at issue in this case. Dockets.Justia.com 1 I. Background 2 On or about June 19, 2006, Plaintiff obtained a loan, secured 3 by a Deed of Trust, from Metrocities Mortgage, LLC (“Metrocities”) 4 in the amount of $880,000 (the “Loan”) for the real property 5 located at 707 Quail Valley Lane, West Covina, California 91791 6 (the “Property”). 7 Motion to Dismiss at 3:15–18.) 8 her loan payments, and a Notice of Default was recorded on the 9 Property on April 30, 2009. 10 (Defendants Central Mortgage and Old Republic’s Plaintiff subsequently defaulted on (Motion to Dismiss 3:19–20.) On June 8, 2009, Mortgage Electric Systems, Inc. (“MERS”), as 11 nominee for Metrocities, assigned the loan and Deed of Trust for 12 the loan to Central Mortgage. 13 on June 8, Defendant Old Republic became the trustee under the Deed 14 of Trust through a Substitution of Trustee. 15 November 20, 2009, after Plaintiff failed to cure her default on 16 the Property, a Notice of Trustee’s Sale was recorded. 17 Dismiss 3:26–27; FAC ¶ 83.) 18 (Motion to Dismiss 3:21–23.) (FAC ¶ 79.) Also On (Motion to Plaintiff filed the instant action in Los Angeles County 19 Superior Court on February 2, 2011. 20 Removal, Dkt. No. 1.) 21 31, 2011, asserting that this court had federal question 22 jurisdiction over Plaintiff’s Truth in Lending Act (“TILA”) and 23 Real Estate Settlement Procedures Act (“RESPA”) claims. 24 filed a First Amended Complaint (“FAC”) on April 29, 2011, deleting 25 the RESPA claim. 26 improperly transferred during the securitization process, so none 27 of the Defendants have a legal, equitable, or pecuniary interest in 28 Plaintiff’s debt obligation. (Exhibit A to Notice of Defendants removed to this court on March Plaintiff Plaintiff’s FAC claims that her Loan was (FAC ¶¶ 4, 46, 108.) 2 Plaintiff also 1 alleges that various documents, including the Substitution of 2 Trustee, the Notice of Default and the Notice of Sale, were 3 knowingly falsified. 4 the non-judicial foreclosure proceedings initiated against her were 5 unlawful. 6 five causes of action for negligence, negligent infliction of 7 emotional distress, violation of TILA, and violation of various 8 sections of California’s Business and Professions Code. (FAC ¶¶ 9 197–249.) Defendants now move to dismiss the FAC. 10 11 II. (FAC ¶ 15.) As such, Plaintiff argues that (See, e.g., FAC ¶¶ 1, 3, 133.) Plaintiff’s FAC asserts Legal Standard A complaint will survive a motion to dismiss when it 12 "contain[s] sufficient factual matter, accepted as true, to state a 13 claim to relief that is plausible on its face." 14 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 15 550 U.S. 544, 570 (2007)). 16 motion, a court must "accept as true all allegations of material 17 fact and must construe those facts in the light most favorable to 18 the plaintiff." Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 19 2000). 20 allegations," it must offer "more than an unadorned, 21 the-defendant-unlawfully-harmed-me accusation." 22 at 1949. 23 than a statement of a legal conclusion "are not entitled to the 24 assumption of truth." Id. at 1950. In other words, a pleading that 25 merely offers "labels and conclusions," a "formulaic recitation of 26 the elements," or "naked assertions" will not be sufficient to 27 state a claim upon which relief can be granted. Id. at 1949 28 (citations and internal quotation marks omitted). Ashcroft v. Iqbal, When considering a Rule 12(b)(6) Although a complaint need not include "detailed factual Iqbal, 129 S. Ct. Conclusory allegations or allegations that are no more 3 1 "When there are well-pleaded factual allegations, a court should 2 assume their veracity and then determine whether they plausibly 3 give rise to an entitlement of relief." Id. at 1950. Plaintiffs 4 must allege "plausible grounds to infer" that their claims rise 5 "above the speculative level." Twombly, 550 U.S. at 555-56. 6 "Determining whether a complaint states a plausible claim for 7 relief" is "a context-specific task that requires the reviewing 8 court to draw on its judicial experience and common sense." Iqbal, 9 129 S. Ct. at 1950. 10 III. Discussion 11 A. 12 Plaintiff’s Fourth Cause of Action alleges that Central Fourth Cause of Action: Truth in Lending Act Claim 13 Mortgage violated TILA Section 131(g), 15 U.S.C. §1641(g), by 14 failing to provide Plaintiff with notice of the June 8, 2009 15 assignment of the Loan and Deed of Trust to Central Mortgage. 16 ¶¶ 233-234.) 17 (FAC This claim is time barred. A civil action for a TILA violation seeking damages must be 18 brought within one year of the violation. 19 a general rule, the limitations period of 15 U.S.C. § 1640(e) “runs 20 from the date of consummation of the transaction.” 21 California, 784 F.2d 910, 915 (9th Cir. 1986). 22 the face of the FAC that TILA’s one-year statute of limitations 23 expired on June 8, 2009. 24 15 U.S.C. § 1640(e). As King v. It is clear from Plaintiff argues that the statute of limitations should be 25 equitably tolled because she did not discover the purported 26 violation until February 2011. 27 “might be appropriate in certain circumstances.” 28 court must examine Plaintiff’s claims of fraudulent concealment and (Opp. at 21.) 4 Equitable tolling Id. at 914. This 1 equitable tolling “to determine if the general [one-year] rule 2 would be unjust or frustrate the purpose of [TILA] and adjust the 3 limitations period accordingly.” 4 Id. at 915. In support of her equitable tolling argument, Plaintiff claims 5 that she never received a copy of the Assignment as required by 6 TILA. 7 that Defendant Central Mortgage had violated TILA by failing to 8 provide notice of the Assignment “until on or about February 2011 9 when she retained counsel and discovered that her mortgage had (FAC ¶ 236.) Plaintiff alleges that she did not discover 10 allegedly been ‘assigned’ to Central Mortgage.” 11 further alleges that she could not have, with reasonable diligence, 12 discovered such facts because she did not receive a copy of the 13 Assignment as required by TILA. 14 Plaintiff’s argument fails. (Id.) Plaintiff (Id.; Opp. at 22.) “[T]he mere existence of TILA 15 violations and lack of disclosure does not itself equitably toll 16 the statute of limitations.” 17 676 F.Supp.2d 895, 906 (C.D. Cal. 2009). 18 render the one-year statute of limitations meaningless, as it would 19 be tolled whenever there were improper disclosures.” 20 Excepting the lack of disclosure itself, Plaintiff has not shown 21 fraudulent concealment by Central Mortgage or any other 22 circumstance warranting equitable tolling.2 23 is time barred, and must be dismissed. Garcia v. Wachovia Mortgage Corp., “[A] contrary rule would Id. Plaintiff’s TILA claim 24 25 26 27 28 2 The court notes that even if Plaintiff’s TILA claim were timely, she has not alleged any actual damages resulting from Central Mortgage’s failure to provide notice of the assignment. See 15 U.S.C. 1640(a)(1); Beall v. Quality Loan Serv. Corp., 2011 WL 1044148 at *6 (S.D. Cal. 2011) (dismissing TILA claim where plaintiff failed to allege that assignment of a Deed of Trust caused actual damages). 5 1 B. Remaining State Law Claims 2 This case was removed to this court on the basis of federal 3 question jurisdiction. 28 U.S.C. § 1331. The Notice of Removal 4 does not assert that diversity jurisdiction exists. 5 dismissed Plaintiff’s only federal cause of action, the court 6 declines to exercise supplemental jurisdiction over Plaintiff’s 7 remaining state law claims. 8 Gwinn, 264 F.3d 817, 826 (9th Cir. 2001) (“A court may decline to 9 exercise supplemental jurisdiction over related state-law claims Having See 28 U.S.C. § 1367(c)(3); Ove v. 10 once it has dismissed all claims over which it has original 11 jurisdiction.”). 12 IV. 13 Conclusion For the reasons stated above, Defendants’ Motion to Dismiss is 14 GRANTED. 15 barred. 16 addition, the following motions are vacated - docket numbers 37, 38 17 and 41. Plaintiff’s Fourth Cause of Action is dismissed as time The remaining claims are REMANDED to state court. In 18 19 20 IT IS SO ORDERED. 21 22 23 Dated: September 27, 2011 DEAN D. PREGERSON United States District Judge 24 25 26 27 28 6

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