Gonzalez v. Homeq Servicing, et al, No. 1:2009cv00951 - Document 17 (E.D. Cal. 2010)

Court Description: Memorandum Decision On Defendant Barclays Capital Real Estate, Inc DBA Homeq Servicing's Motion To Dismiss(Doc. 12 , signed by Judge Oliver W. Wanger on 1/14/2010. (Scrivner, E)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 CECILIA GONZALEZ, Plaintiff, 9 v. 10 11 HOMEQ SERVICING, et al, 13 15 16 17 18 19 MEMORANDUM DECISION ON DEFENDANT BARCLAYS CAPITAL REAL ESTATE, INC DBA HOMEQ SERVICING S MOTION TO DISMISS (Doc. 12) Defendants. 12 14 1:09-CV-00951-OWW-SMS I. INTRODUCTION Before the court for decision is Defendant Barclays Capital Real Estate, Inc. dba Homeq Servicing s ( Homeq ) motion to dismiss Plaintiff s First Amended Complaint ( FAC ) for failure to state a claim. Plaintiff Cecilia Gonzalez did not oppose the motion. Defendant Homeq s motion to dismiss was submitted on the papers pursuant to Local Rule 78-230(c), (h). 20 21 22 23 24 25 II. BACKGROUND This case involves a dispute between Plaintiff Cecilia Gonzalez and Defendant Homeq over the mortgage loan obtained by Plaintiff on property located at 1691 North Bridge Street, Visalia, California.1 Plaintiff subsequently defaulted on the loan and the 26 27 1 28 August Plaintiff s deed of trust securing the loan was recorded on 26, 2005 in the Official Records of Tulare County, 1 1 2 non-judicial foreclosure process was initiated.2 The disputed loan was brokered and financed by one or more 3 undisclosed financial entities. 4 and Plaintiff does not allege that Homeq originated or brokered the 5 loan.3 6 Defendant Homeq serviced the loan Plaintiff s suit primarily challenges the disclosures - or 7 lack thereof - that were provided with the loan. In particular, 8 Plaintiff alleges that certain documents related to the loan were 9 not provided to [her] despite her insistence and continued requests 10 for copies of such. 4 11 was induced into this transaction without the proper opportunity 12 to evaluate the costs and implications thereof, and in a form and 13 manner required by applicable statute and regulation [sic]. 14 ¶ 21.) (FAC ¶ 14.) Plaintiff also alleges that she (Id. With respect to Defendant Homeq, the FAC provides: Defendant Homeq ratified this transaction with an improper, ineffective, and unlawful omission of material disclosures as that term is defined under 15 U.S.C. § 1602(u); Reg. Z § 226.23(a)(3) n. 48. 15 16 17 18 (Id. ¶ 23.) 19 20 21 22 California. (FAC ¶ 75.) 2 Homeq, a loan servicing company, is a dba of Barclays Capital Real Estate, Inc., which is a Delaware corporation with its principal place of business in New York. (Doc. 1, ¶ 11.) 23 3 24 25 26 27 28 It appears that Defendant Mortgage Electronic Registration Systems, Inc. ( MERS ) is the beneficiary under Plaintiff s Deed of Trust. Plaintiff, however, did not serve Defendant MERS with notice of this litigation. (Doc. 1, ¶ 4.) 4 Specifically, Plaintiff alleges that failure to accurately and effectively disclose a Truth in Lending Disclosure Statement [...] is a failure to provide a material disclosure under 15 U.S.C. § 1602(u); Reg. Z § 226.23(a)(3) n. 48. (FAC ¶ 22.) 2 1 On May 11, 2009, Plaintiff filed the instant action in the 2 Superior Court of California, County of Tulare, alleging six causes 3 of action: (1) Violation of California Civil Code § 2923.6; (2) 4 Fraud; (3) Reformation; (4) Injunctive Relief; (5) Declaratory 5 Relief; and (6) Quiet Title. 6 (Doc. 1, Exh. 1.) On July 22, 2009, this case was removed on the basis of 7 federal question jurisdiction. 8 Plaintiff s action is founded on claims arising under federal laws, 9 including the Federal Real The notice of removal asserts that Estate Settlement Procedures Act, 10 ( RESPA ), 12 U.S.C. § 2607, et seq. Alternatively, the notice 11 provides that removal is proper because this is a civil action 12 between citizens of different states and the matter in controversy 13 likely exceeds the sum of $75,000. (Doc. 1, ¶ 9.) 14 Plaintiff filed her FAC on June 6, 2009, alleging five causes 15 of action: (1) Violation of the Truth in Lending Act ( TILA ), 15 16 U.S.C. 17 Statutory Damages; (3) Violation of the Fair Debt Collection 18 Practices Act ( FDCPA ), 15 U.S.C. §§ 1692, et seq.; (4) Violation 19 of California Business & Professions Code § 17200; and (5) 20 Violation of California Civil Code § 2923.6. 21 § 1635(a) - Rescission; (2) Violation of the TILA - (Doc. 9.) Defendant filed this motion on September 4, 2009. Defendant 22 Homeq asserts that Plaintiff s suit should be dismissed with 23 prejudice because the type of claims alleged are targeted at the 24 original lender which was not Homeq. 25 that Plaintiff is not entitled to rescind the loan agreement and 26 has no basis to pursue claims under federal or state law. 27 In any event, Homeq claims Plaintiff did not oppose Defendant s motion to dismiss. 28 3 III. 1 LEGAL STANDARD 2 Under Federal Rule of Civil Procedure 12(b)(6), a motion to 3 dismiss can be made and granted when the complaint fails to state 4 a claim upon which relief can be granted. 5 12(b)(6) is appropriate where the complaint lacks a cognizable 6 legal theory or sufficient facts to support a cognizable legal 7 theory. 8 (9th Cir. 1990). 9 To Dismissal under Rule Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 sufficiently state a claim for relief and survive a 10 12(b)(6) motion, a complaint does not need detailed factual 11 allegations but the [f]actual allegations must be enough to raise 12 a right to relief above the speculative level. Bell Atl. Corp. v. 13 Twombly, 550 U.S. 544, 555 (2007). 14 or a formulaic recitation of the elements of a cause of action 15 will not do. 16 claim to relief that is plausible on its face. 17 other words, [t]o survive a motion to dismiss, a complaint must 18 contain sufficient factual matter, accepted as true, to state a 19 claim to relief that is plausible on its face. 20 --- U.S. ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) 21 (internal quotation marks omitted). 22 not akin to a probability requirement, but it asks for more than a 23 sheer possibility that a defendant has acted unlawfully. Where a 24 complaint with 25 defendant's 26 possibility and plausibility of entitlement to relief. 27 (internal citation and quotation marks omitted). 28 Id. pleads Mere labels and conclusions Rather, there must be enough facts to state a facts liability, that it are stops Id. at 570. In Ashcroft v. Iqbal, The plausibility standard is merely short of consistent the line a between Id. In deciding whether to grant a motion to dismiss, the court 4 1 must accept as true all well-pleaded factual allegations. Iqbal, 2 129 S.Ct. at 1950. A court is not, however, required to accept as 3 true allegations that are merely conclusory, unwarranted deductions 4 of fact, or unreasonable inferences. 5 Warriors, 266 F.3d 979, 988 (9th Cir. 2001); see, e.g., Doe I v. 6 Wal-Mart Stores, Inc., --- F.3d ----, 2009 WL 1978730, at *3 (9th 7 Cir. July 10, 2009) ( Plaintiffs' general statement that Wal-Mart 8 exercised control over their day-to-day employment is a conclusion, 9 not a factual allegation stated with any specificity. Sprewell v. Golden State We need not 10 accept Plaintiffs' unwarranted conclusion in reviewing a motion to 11 dismiss. ). 12 The Ninth Circuit has summarized the governing standard, in 13 light of Twombly and Iqbal, as follows: In sum, for a complaint 14 to survive a motion to dismiss, the non-conclusory factual content, 15 and reasonable inferences from that content, must be plausibly 16 suggestive of a claim entitling the plaintiff to relief. 17 U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (internal 18 quotation marks omitted). Moss v. 19 IV. 20 21 A. Federal Claims (Counts I-III) 1. 22 DISCUSSION Rescission Under TILA (Count I) 23 In her first cause of action, Plaintiff alleges that she is 24 entitled to rescind the loan because Defendants failed to provide 25 necessary loan disclosure documents, inducing her entry into a loan 26 transaction without the proper opportunity to evaluate the costs 27 and implications thereof. 28 alleges that Defendants (FAC ¶ 21.) did not 5 Specifically, Plaintiff accurately and effectively 1 disclose a Truth 2 constitutes] a failure to provide material disclosure[s] [under 3 TILA]. 4 entitle her to rescind the loan under the TILA framework.5 (Id. ¶ 22.) in Lending Disclosure Statement [which According to Plaintiff, these deficiencies 5 Defendant moves to dismiss Plaintiff s first cause of action 6 on grounds that the claim for rescission is time-barred and that 7 Plaintiff failed to allege that the she can or will tender the 8 borrowed funds back to the lender, as required by 15 U.S.C. § 9 1635(b). 10 Generally, TILA provides that borrowers have until midnight of 11 the third business day following the consummation of a loan 12 transaction to rescind the transaction. 13 borrower's right of rescission is extended from three days to three 14 years if the lender (1) fails to provide notice of the borrower's 15 right of rescission or (2) fails to make a material disclosure.6 16 See Reagen v. Aurora Loan Servs., No. 1:09-CV-00839-OWW-DLB, 2009 17 WL 3789997, at *16 (E.D. Cal. Nov. 10, 2009) (citing 12 C.F.R. § 18 226.23(a)(3)). 15 U.S.C. § 1635(a). A Specifically, § 1635(f) of TILA provides: An obligor's right of rescission shall expire three 19 20 5 21 22 23 24 25 26 27 28 Under TILA, a plaintiff may sue for damages and/or rescission. Each remedy has its own statute of limitations. For a claim for damages, a consumer has one year from the date of consummation of the transaction to bring suit. See 15 U.S.C. § 1640(e); King v. California, 784. F.2d 910, 915 (9th Cir. 1986). For a claim for rescission, a consumer has only three days following consummation to cancel the transaction, unless the borrower s right of rescission is extended from three days to three years. See id. § 1635(a). 6 In this case, Plaintiff contends that her original lender not Homeq - failed to provide adequate loan disclosures, entitling her to the extended three-year statute of limitations for rescission of the loan. 6 1 2 3 years after the date of consummation of the transaction or upon the sale of the property, whichever occurs first, notwithstanding the fact that the information and forms required under this section or any other disclosures required under this part have not been delivered to the obligor. 4 5 6 15 U.S.C. § 1635 (f). Here, the date of the violation is the date the loan closed, 7 or August 17, 2005. Plaintiff's claim for rescission under TILA, 8 which was filed in state court on May 11, 2009, exceeds the statute 9 of limitations by eight months, and is time-barred. No facts are 10 alleged in the FAC which would support tolling the statute of 11 limitations and Plaintiff did not oppose Defendant s motion. Since 12 Plaintiff did not commence litigation by August 17, 2008 - and has 13 not pled facts giving rise to an equitable tolling argument - her 14 rescission claim is time-barred. 15 TILA also requires a plaintiff to allege that the plaintiff 16 can or will tender the borrowed funds back to the lender. See 17 Yamamoto v. Bank of New York, 329 F.3d 1167, 1171 (9th Cir. 2003) 18 ( rescission should be conditioned on repayment of the amounts 19 advanced by 20 Shelton, 486 F.3d 815, 821 (4th Cir. 2007) ( The equitable goal of 21 rescission under TILA is to restore the parties to the status quo 22 ante. ) (citations omitted). 23 allegations that Plaintiff attempted to tender, or is capable of 24 tendering, the value of the property pursuant to the rescission 25 framework established by TILA. Nor does Plaintiff allege that such 26 equitable circumstances exist that conditioning rescission on any 27 tender would be inappropriate. 28 she has made such an offer or contemplates making such an offer, the lender. ); see also Am. Mortgage Network v. Here, the FAC does not contain As Plaintiff has not alleged that 7 1 2 her rescission claim fails. Plaintiff s rescission claim is time-barred under the 3 applicable limitations period. No facts have been pled which could 4 give rise to an argument that the statute of limitations has been 5 equitably tolled. 6 on the loan, (FAC ¶ 18), and servicers are not treated as owners or 7 assignees who would be liable for disclosure violations under TILA. 8 15 U.S.C. § 1641(f). 9 10 The FAC also alleges that Homeq is the servicer Plaintiff s TILA rescission claim is DISMISSED WITH PREJUDICE against Defendant Homeq. 11 2. 12 Damages Under TILA (Count II) 13 Plaintiff s FAC also advances a claim for statutory damages 14 under TILA. The grounds for Plaintiff s second claim are identical 15 to her first cause of action for rescission, i.e., that she is 16 entitled to relief based on her original lender s inadequate and 17 incomplete disclosures. 18 cause of action is time-barred under the applicable one-year 19 limitations period. Defendant argues that Plaintiff s second Defendant is correct. 20 Plaintiff s request for damages under TILA is subject to a one 21 year statute of limitations, typically running from the date of the 22 loan execution. 23 executed on August 17, 2005, and this action was filed on May 11, 24 2009. 25 damages expired on August 17, 2006, one year after the closing of 26 the loan. 27 support tolling the statute of limitations. 28 Plaintiff s claim against Defendant Homeq for statutory damages 15 U.S.C. § 1640(e). Plaintiff s loan was Applying § 1640(e) to Plaintiff's facts, the right to There are no facts alleged in the FAC which would 8 For these reasons, 1 2 under TILA is DISMISSED WITHOUT PREJUDICE. It is apparent that any amendment to Plaintiff s TILA claims 3 would be futile. Both of Plaintiff s TILA claims are time-barred, 4 and Plaintiff has failed to allege any entitlement to equitable 5 tolling. 6 contemplates 7 rescission claim. 8 are DISMISSED WITH PREJUDICE. Plaintiff has also not alleged that she can tender or tendering the amount she borrowed to state a Plaintiff s TILA claims against Defendant Homeq 9 10 11 3. FDCPA (Claim III) Plaintiff s third cause of action is for violation of the 12 federal FDCPA. (FAC ¶ 48-50.) 13 Homeq is a debt collector in that it attempted to collect a 14 purported debt and specifically threaten [sic] imminent legal 15 proceedings. 16 Defendants 17 validation notice under 15 U.S.C. § 1692e(11) [...] us[ing] false 18 or misleading representations or deceptive means to collect or 19 attempt to collect a debt [and] us[ing] unfair or unconscionable 20 means to collect or attempt to collect a debt. 21 FAC appears to allege that Defendant Homeq engaged in abusive debt 22 collection practices in violation of federal laws regulating debt 23 collection. 24 because Plaintiff has neither pled any facts suggesting that Homeq 25 engaged in unlawful debt collection practices nor indicated how 26 Homeq qualifies as a debt collector under the FDCPA. (Id. [] ¶ violated 25.) the Plaintiff alleges that Defendant Plaintiff FDCPA by further [failing] alleges to that provide (Id. ¶ 49.) The In this context, however, the FAC s third claim fails 27 Although the FAC alleges that Defendant used unfair or 28 unconscionable means to collect a debt, these are conclusions of 9 1 law. Plaintiff has not alleged one fact concerning the frequency, 2 timing, or methods of Defendant s debt collection practices. 3 only debt collection fact asserted against Defendant is that 4 Defendant Homeq has attempted to collect a purported debt and 5 specifically threaten[ed] imminent legal proceedings, which is not 6 indicative of improper debt collection practices under the FDCPA. 7 In addition, the FAC s allegations that Defendant used deceptive 8 means 9 underdeveloped. to 10 matter 11 collect a debt are conclusory and The severely There is not one fact to indicate how or in what practice. 12 Defendant Homeq regularly engaged in the challenged It also appears that Defendant is not a debt collector under 13 the FDCPA. The FDCPA regulates only debt collectors. See 15 14 U.S.C. §§ 1692(e)-(f). 15 who uses any instrumentality of interstate commerce or the mails in 16 any business the principal purpose of which is the collection of 17 any debts, or who regularly collects or attempts to collect, 18 directly or indirectly, debts owed or due or asserted to be owed or 19 due another. 20 persons who collect debt to the extent such activity ... (ii) 21 concerns a debt which was originated by such person; [or] (iii) 22 concerns a debt which was not in default at the time it was 23 obtained by such person .... 24 definition of debt collector does not include the consumer's 25 creditors, a mortgage servicing company, or any assignee of the 26 debt, so long as the debt was not in default at the time it was 27 assigned. 28 Cir. 1985); Debt collector is defined as any person Id. § 1692a(6). Debt Collector does not include Id. § 1692a(6)(F). The FDCPA's Perry v. Stewart Title Co., 756 F.2d 1197, 1208 (5th see also Mansour v. Cal-Western Reconveyance Corp., 10 1 618 F. Supp. 2d 1178, 1182 (D. Ariz. 2009) (granting motion to 2 dismiss in favor of servicer because it was not a debt collector); 3 Nera v. Am. Home Mortgage Servicing, Inc., No. C-09-2025-RMW, 2009 4 WL 2423109 at *4 (N.D. Cal. Aug.5, 2009) (holding that mortgagors 5 and servicing companies are not debt collectors and granting motion 6 to dismiss because the conclusory allegation that defendant is 7 a debt collector is not sufficient to support an [FDCPA] 8 claim ). 9 Homeq 10 is Here, nothing in the complaint suggests that Defendant a debt collector under the FDCPA. Plaintiff's allegations do not trigger the FDCPA. 11 A claim is plausible only when the plaintiff pleads factual 12 content that allows the court to draw the reasonable inference that 13 the defendant is liable for the misconduct alleged." 14 S.Ct. 1937, 1949 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 15 544, 570.). The complaint s third cause of action for violation of 16 the FDCPA does not meet this burden. 17 no cognizable claim and is DISMISSED WITH PREJUDICE. Iqbal, 129 The FAC s third claim states 18 B. 19 State Law Claims (Counts IV-V) 1. 20 California Business & Professions Code § 17200 California's Unfair Competition Law ( UCL ), Cal. Bus. & Prof. 21 22 Code §§ 17200 et 23 fraudulent business act or practice. 24 v. Los Angeles Cellular Tel. Co., 20 Cal. 4th 163, 180 (1999). 25 proscribing 26 borrows violations of other laws and treats them as unlawful 27 practices that the unfair competition law makes independently 28 actionable. any Id. seq., prohibits unlawful (citation business omitted); 11 any unlawful, unfair or Cel-Tech Communic'ns, Inc. practice, Farmers section Ins. By 17200 Exch. v. 1 Superior Court, 2 Cal. 4th 377, 383 (1992). 2 defendant cannot be liable under § 17200 for committing unlawful 3 business practices without having violated another law. Ingles v. 4 Westwood One Broadcasting Servs., Inc., 129 Cal. App. 4th 1050, 5 1060 (2005) (internal quotations omitted). 6 Plaintiff alleges that Defendant In other words, a Homeq violated the UCL 7 because: (1) The business acts and practices of [] Defendants 8 [...] constitute unfair business practices under the UCL in that 9 said acts and practices offend public policy and are substantially 10 injurious to the Plaintiff and all consumers; and (2) Defendants 11 processed and ratified this Transaction [...] and failed to deliver 12 material disclosures under TILA, failed to comply with the contract 13 between the parties [and] and failed to comply with statutory good 14 faith and fair dealing. (FAC ¶ 60-62.) 15 Defendant Homeq argues that Plaintiff s UCL claim is precluded 16 because it is predicated on TILA and FDCPA claims that are barred 17 by the statute of limitations. Alternatively, Homeq argues that 18 Plaintiff UCL 19 particularity required by Rule 9(b). 20 has not pled her claim Defendant s argument are well-taken. with the requisite First, to the extent 21 that Plaintiff s UCL claims are predicated on TILA and FDCPA, they 22 are preempted. 23 1007 n.3 (9th Cir. 2008) (Plaintiff cannot enforce a time-barred 24 TILA claim through the UCL because such an action would constitute 25 an attempt to enforce a state regulation in an area expressly 26 preempted by federal law. ); 27 09-02086-SI, 2009 WL 3429700 at *8 (N.D. Cal. October 22, 2009) 28 ( Because the FDCPA claim is not well pled, since neither defendant See Silvas v. E*Trade Mortg. Corp., 514 F.3d 1001, Distor v. U.S. Bank NA, No. C- 12 1 appears to be a debt collector within the meaning of the statute, 2 the FDCPA claim cannot serve as the underlying violation for 3 plaintiff's unlawful acts UCL claim. ); 4 Bankers, Inc., 2009 WL 1451715 *11 (E.D. Cal. May 22, 2009) 5 (holding that if a TILA claim is time barred, a UCL claim based on 6 TILA violations likewise fails. ); 7 Loan Ass'n, 541 F. Supp. 2d 1108, 1115 (C.D. Cal. 2008) (citing 8 Silvas for proposition that UCL claim is preempted by TILA if the 9 underlying TILA violation is time barred). 10 Adams v. SCME Mortg. Reyes v. Downey Savings and Plaintiff s UCL claims are also deficient because they do not 11 meet Rule 9(b)'s heightened pleading standard. Rule 9(b) requires 12 a party to state with particularity the circumstances constituting 13 fraud. 14 allegations 15 requirements. 16 (9th Cir. 2003) 17 identifies 18 defendant can prepare an adequate answer from the allegations. 19 Neubronner v. Milken, 6 F.3d 666, 671-672 (9th Cir.1993) A court may dismiss a claim grounded in fraud when its fail the to satisfy Rule 9(b)'s heightened pleading Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1107 A pleading is sufficient under Rule 9(b) if it circumstances constituting fraud so that the 20 The complaint s factual development is severely lacking and 21 fails to satisfy Rule 9(b) s who, what, when, where and how 22 requirements as to Defendant Homeq. 23 Homeq was aware that the loans contained a misleading clause also 24 lacks factual support Plaintiff has not pointed to a misleading 25 clause. Plaintiff s allegation that the loan originator failed to 26 make accurate representations and/or failed to provide material 27 information about the Transaction is a more viable basis for a UCL 28 claim, but it is not clear how Defendant Homeq - only a loan 13 The allegation that Defendant 1 servicer after Plaintiff had already entered into it - is liable 2 for such conduct. 3 See Perfect 10, Inc. v. Visa Intern. Serv. Ass'n, 494 F.3d 788, 4 808-809 (9th Cir. 2007) ( an unfair practices claim under section 5 17200 6 defendant's liability must be based on his personal participation 7 in the unlawful practices. ). 8 Plaintiff s UCL claim are conclusory and fall short of meeting the 9 particularity requirements for pleading fraud under Federal Rule of 10 11 cannot There is no vicarious liability under the UCL. be predicated on vicarious liability .... A The relevant allegations supporting Civil Procedure 9(b). The UCL claim s deficiencies are so severe to suggest no 12 potential improvement from an attempt to amend. The fourth cause 13 of action is DISMISSED against Defendant Homeq WITH PREJUDICE. 14 2. 15 California Civil Code § 2923.52 16 Plaintiff s fifth cause of action is under the California 17 Foreclosure Prevention Act, Cal. Civ. Code § 2923.52 et seq., which 18 postpones the notice of sale under a deed of trust for certain 19 loans for 90 days. 20 stated that it shall become operative 14 days after the issuance 21 of regulations that provide an exemption filing option. 22 2923.52(4)(b). 23 the required regulations on June 1, 2009 (Cal. Code Regs. tit. 10, 24 § 3 (June 1, 2009)), so § 2923.52 became operative on June 15, 25 2009. 26 2923.52 claim was effected on April 13, 2009. 27 the Notice of Trustee's Sale was issued two months before the 28 California Foreclosure Prevention Act became operative, Plaintiff This law was passed in February 2009, and Id. § The California Department of Corporations issued The Notice of Sale that forms the basis of Plaintiff's § 14 (FAC ¶ 77.) Because 1 has failed to state a claim. 2 Loans, Inc., No. C-09-01615-JW, 2009 WL 2423703 at *6 (N.D. Cal. 3 July 4 retroactive unless so declared. 5 2923.52 6 Plaintiff s fifth cause of action is DISMISSED WITH PREJUDICE. 9, 2009) does ( California not contain See Pantoja v. Countrywide Home Civil any Code provisions Cal. Civ. Code § 3. retroactivity are not Section declarations. ). 7 VI. CONCLUSION 8 For the reasons stated: 9 (1) 10 11 TILA is time-barred and DISMISSED WITH PREJUDICE. (2) 12 13 Plaintiff s second cause of action for damages under TILA is time-barred and DISMISSED WITH PREJUDICE. (3) 14 15 Plaintiff s first cause of action for rescission under Plaintiff s third cause of action under FDCPA is incognizable and DISMISSED WITH PREJUDICE. (4) 16 Plaintiff s fourth cause of action for a violation of 17 California Business & Professions Code § 17200 is DISMISSED WITH 18 PREJUDICE. (5) 19 20 Plaintiff s fifth cause of action for a violation of California Civil Code § 2923.52 is DISMISSED WITH PREJUDICE. 21 Defendant Homeq shall submit a form of order consistent with, 22 and within five (5) days following electronic service of, this 23 memorandum decision. 24 25 IT IS SO ORDERED. 26 Dated: aa70i8 January 14, 2010 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 27 28 15

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