Thiel v. GMAC Mortgage, LLC
Filing
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MEMORANDUM and ORDER signed by Judge Morrison C. England, Jr on 5/11/10: Defendant's Motion to Dismiss is GRANTED with leave to amend 6 . Plaintiff may file an amended complaint not later than twenty (20) days after the date this Memorandum and Order is filed electronically. (Kaminski, H)
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Defendants. 16 17 18 19 20 21 22 23 24 25 26 27 28 Because oral argument will not be of material assistance, the Court orders this matter submitted on the briefs. E.D. Cal. Local Rule 230(g). 1
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
BRIAN THIEL, Plaintiff, v. GMAC MORTGAGE, LLC and DOES 1 through 100, inclusive,
No. 2:10-cv-00645-MCE-DAD
MEMORANDUM AND ORDER
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Presently before the Court is a Motion by Defendant GMAC Mortgage, LLC ("Defendant") to dismiss the claims alleged against it in the Complaint of Plaintiff Brian Thiel ("Plaintiff") for failure to state a claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6).1 reasons set forth below, Defendant's Motion is granted. /// For the
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BACKGROUND2
In December 2008, Plaintiff contacted Defendant to request a refinance of his mortgage loan. Plaintiff was told that the
value of the property did not allow for refinance but that a modification of the loan could be considered. In January 2009,
Defendant notified Plaintiff that modification of the loan would not be considered while he was current on his payments, but rather "a modification to his loan would only be made if he was delinquent in his payments." Based on this information, Plaintiff then purposefully withheld payments on his loan although, to his own admission, he had the money to make payment. When Plaintiff
later contacted Defendant in order to modify his loan, he was told that modification could not be considered because he was behind on his payments and his income was too high. Plaintiff thereafter filed suit. Plaintiff states that at
all times he was able to pay but was knowingly misled into withholding payment. A Notice of Default was subsequently filed and a foreclosure sale scheduled on April 9, 2010.
STANDARD
On a motion to dismiss for failure to state a claim under Rule 12(b)(6), all allegations of material fact must be accepted as true and construed in the light most favorable to the nonmoving party. The factual assertions in this section are based on the allegations in Plaintiff's Complaint unless otherwise specified. 2
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Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Rule 8(a)(2) requires only "a short and plain statement
of the claim showing that the pleader is entitled to relief" in order to "give the defendant fair notice of what the...claim is and the grounds upon which it rests." Bell Atl. Corp. v.
Twombly, 127 S. Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 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. and quotations omitted). Id. at 1964-65 (internal citations
Factual allegations must be enough to Id. at 1965
raise a right to relief above the speculative level.
(citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-36 (3d ed. 2004) ("The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action")). court is not required to accept as true a legal conclusion couched as a factual allegation. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). A court granting a motion to dismiss a complaint must then decide whether to grant leave to amend. A court should "freely A
give" leave to amend when there is no "undue delay, bad faith[,] dilatory motive on the part of the movant,...undue prejudice to the opposing party by virtue of...the amendment, [or] futility of the amendment...." Fed. R. Civ. P. 15(a); Foman v. Davis, 371
U.S. 178, 182 (1962). 3
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Generally, leave to amend is denied only when it is clear the deficiencies of the complaint cannot be cured by amendment. DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992).
ANALYSIS
The gravemen of Plaintiff's Complaint is that Defendant had indicated Plaintiff's loan would be modified if Plaintiff was delinquent on payments. However, Plaintiff has failed to set
forth any information supporting the existence of a binding obligation in which Defendant was required to provide such modification or incur liability for failure to do so. Plaintiff's Complaint at no point alleges that an oral contract was executed or that the conversations alleged amounted to a legally cognizable modification to the written agreement entered into by parties. Despite Plaintiff's attempt in his
Opposition to couch Defendant's words as guaranteeing that "modification `...would...be...made...'" (Pl.'s Opp'n 3:9.), Plaintiff's Complaint acknowledges that Plaintiff was "informed that he must be behind in his payments before a loan modification would be considered." (Pl.'s Compl. ¶ 15.) (emphasis added).
Defendant's advice on what might trigger consideration is hardly ground on which Defendant may incur liability on the myriad of causes of action alleged. Regardless of Plaintiff's
implication that an agreement existed, "[a] court is not required to accept as true a legal conclusion couched as a factual allegation." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). 4
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Plaintiff's Complaint has failed to allege facts sufficient to support a claim upon which relief may be granted.
CONCLUSION
Accordingly, Defendant's Motion to Dismiss (Docket No. 6) is hereby GRANTED with leave to amend. Plaintiff may file an amended complaint not later than twenty (20) days after the date this Memorandum and Order is filed electronically. If no amended complaint is filed within
said twenty (20)-day period, without further notice, Plaintiff's claims will be dismissed without leave to amend. IT IS SO ORDERED. Dated: May 11, 2010
_____________________________ MORRISON C. ENGLAND, JR. UNITED STATES DISTRICT JUDGE
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