Huggins v. Quality Loan Service Corporation et al, No. 2:2010cv01232 - Document 22 (D. Nev. 2011)
Court Description: ORDER Denying 15 Motion to Remand, Granting 10 Motion to Dismiss and 11 Joinder, and Denying Motion for Preliminary Injunction (Attached as Exhibit C to 1 Petition for Removal). Signed by Judge Lloyd D. George on 1/27/11. (Copies have been distributed pursuant to the NEF - ASB)
Download PDF
<![CDATA[
Huggins v. Quality Loan Service Corporation et al Doc. 22 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 9 10 MICHAEL HUGGINS, an individual, 11 2:10-cv-1232-LDG-PAL Plaintiff, ORDER 12 v. 13 QUALITY LOAN SERVICING, LP, et al., 14 Defendants. 15 16 Plaintiff Michael Huggins filed this action in the Eighth Judicial District Court of Nevada 17 seeking equitable relief and monetary damages in connection with the planned non-judicial 18 foreclosure sale of his home residence. Defendants subsequently removed the case to federal court 19 (#1, consent to removal #5). Now pending before this court are Plaintiff’s motion to remand (#15, 20 opposition #16), Defendants’ motion to dismiss (#10, joinder #11, opposition #17, reply #19, 21 joinder #20), and Plaintiff’s motion for preliminary injunction, filed in state court prior to removal 22 (attached as Ex. C to #1, opposition #13, joinder #14). 23 24 I. Background Plaintiff took out a mortgage on a personal residence located in Las Vegas in December 25 2006. After receiving notification of a planned non-judicial foreclosure sale of his residence, 26 Plaintiff filed suit in state court on June 29, 2010, alleging twelve causes of action against Dockets.Justia.com 1 Defendants. Plaintiff served Quality Loan Service Corporation (“Quality Loan”) on June 30, and 2 Mortgage Electronic Registration Systems, Inc. (“MERS”) and One West Bank, FSB (“One West 3 Bank”) on July 13. Quality Loan filed a notice of removal to federal court based on diversity 4 jurisdiction on July 23, and the remaining Defendants consented to removal on July 29. Plaintiff 5 has subsequently filed a motion to remand, and Defendants have filed a motion to dismiss. 6 Additionally, Plaintiff filed a motion for preliminary injunction in state court prior to removal. 7 The court will now address the parties’ motions. 8 9 10 II. Analysis A. Plaintiff’s Motion to Remand Plaintiff has moved to remand this action to state court. “On a motion to remand, the 11 removing defendant faces a strong presumption against removal, and bears the burden of 12 establishing that removal is proper.” Laughlin v. Midcountry Bank, No. 3:10-CV-0294-LRH- 13 VPC, 2010 WL 2681899, at *1 (D. Nev. July 2, 2010) (citing Gaus v. Miles, Inc., 980 F.2d 564, 14 566-67 (9th Cir. 1992) and Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 403-04 (9th Cir. 15 1996)). Accordingly, “[f]ederal jurisdiction must be rejected if there is any doubt as to the right of 16 removal in the first instance,” Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 17 1979), and “the court resolves all ambiguity in favor of remand to state court,” Hunter v. Philip 18 Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009) (citing Gaus, 102 F.2d at 566) (internal 19 quotation marks omitted). “If a district court lacks subject matter jurisdiction over a removed 20 action, it has the duty to remand it, for ‘removal is permissible only where original jurisdiction 21 exists at the time of removal or at the time of the entry of final judgment . . . .’” Sparta Surgical 22 Corp. v. Nat’l Ass'n of Sec. Dealers, Inc., 159 F.3d 1209, 1211 (9th Cir. 1998) (citing Lexecon, 23 Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 44 (1998)). 24 Plaintiff argues that remand is necessary because of purported procedural defects in 25 removal and because this court allegedly lacks original jurisdiction over Plaintiff’s claims. 26 2 1 Defendants, however, contend that removal was proper and that this court has diversity 2 jurisdiction over Plaintiff’s claims. The court will now address each of Plaintiff’s arguments 3 below. 4 1. Procedural Defects 5 Plaintiff argues that procedural defects in the removal process require remand because all 6 Defendants failed to timely consent to removal. “The notice of removal of a civil action or 7 proceeding shall be filed within thirty days after the receipt by the defendant, through service or 8 otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action 9 or proceeding is based . . . .” 28 U.S.C. § 1446(b). “The rule of unanimity requires that all 10 defendants who have been served must either join in the removal, or file a written consent to the 11 removal.” Fee v. Wal-Mart Stores, Inc., No. 2:06-CV-762-KJD-PAL, 2006 WL 3149366, at *3 12 (D. Nev. Nov. 2, 2006) (citations omitted). Here, Plaintiff’s argument is without merit because all 13 Defendants either joined in the notice of removal (#1) or the notice of consent to removal (#5), 14 both of which were filed within the thirty days of service upon the Quality Loan, the first served 15 Defendant. Furthermore, Plaintiff’s contention that these filings are defective under Rule 11 is 16 also without merit. Each party, through its attorney, properly signed the respective filings. 17 Therefore, removal was not procedurally deficient. 18 2. Original Jurisdiction 19 Plaintiff also contends that removal is improper because this court lacks original 20 jurisdiction over his claims. Under 28 U.S.C. § 1441, “any civil action brought in a State court of 21 which the district courts of the United States have original jurisdiction, may be removed by the 22 defendant or the defendants, to the district court of the United States for the district and division 23 embracing the place where such action is pending.” 28 U.S.C. § 1441(a). “The threshold 24 requirement for removal under 28 U.S.C. § 1441 is a finding that the complaint contains a cause of 25 action that is within the original jurisdiction of the district court.” Ansley v. Ameriquest Mortg. 26 3 1 Co., 340 F.3d 858, 861 (9th Cir. 2003) (quoting Toumajian v. Frailey, 135 F.3d 648, 653 (9th Cir. 2 1998) (internal quotation marks omitted)). Accordingly, “[a] defendant may remove an action to 3 federal court based on federal question jurisdiction or diversity jurisdiction.” Philip Morris USA, 4 582 F.3d at 1042 (citing 28 U.S.C. § 1441). 5 Although Plaintiff devotes most of his briefing to federal question jurisdiction, Defendants 6 filed their notice of removal based upon diversity jurisdiction. Generally, federal district courts 7 have diversity jurisdiction “over suits for more than $75,000 where the citizenship of each plaintiff 8 is different from that of each defendant.” Philip Morris USA, 582 F.3d at 1043 (citing 28 U.S.C. § 9 1332(a)). For purposes of diversity jurisdiction, a corporation is a citizen of any state in which it 10 has been incorporated. 28 U.S.C. § 1332(a)(1). Here, Plaintiff’s citizenship is diverse from that 11 of each Defendant, and the amount in controversy exceeds $75,000. See Cohn v. Petsmart, Inc., 12 281 F.3d 837, 849 (9th Cir. 2002). Therefore, because removal was not procedurally defective 13 and because this court has diversity jurisdiction over Plaintiff’s claims, Plaintiff’s motion to 14 remand is denied. 15 B. Defendants’ Motion to Dismiss 16 Defendants’ motion to dismiss, brought pursuant to Fed. R. Civ. P. 12(b)(6), challenges 17 whether the Plaintiff’s Complaint states “a claim upon which relief can be granted.” In ruling 18 upon this motion, the court is governed by the relaxed requirement of Rule 8(a)(2) that the 19 complaint need contain only “a short and plain statement of the claim showing that the pleader is 20 entitled to relief.” As summarized by the Supreme Court, a plaintiff must allege “only enough 21 facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 22 544, 570 (2007). Nevertheless, while a complaint “does not need detailed factual allegations, a 23 plaintiff’s obligations to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than 24 labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” 25 Id. (citations omitted). In deciding whether the factual allegations state a claim, the court accepts 26 4 1 those allegations as true, as “Rule 12(b)(6) does not countenance . . . dismissals based on a judge’s 2 disbelief of a complaint’s factual allegations.” Neitzke v. Williams, 490 U.S. 319, 327 (1989). 3 Further, the court “construe[s] the pleadings in the light most favorable to the nonmoving party.” 4 Outdoor Media Grp., Inc. v. City of Beaumont, 506 F3.d 895, 900 (9th Cir. 2007). Although 5 allegations of a pro se complaint are held to less stringent standards than formal pleadings drafted 6 by lawyers, Ward v. Ryan, 623 F.3d 807, 810 n.4 (9th Cir. 2010) (citing Haines v. Kerner, 404 7 U.S. 519, 520-21 (1972)), sweeping conclusory allegations do not suffice, Leer v. Murphy, 844 8 F.2d 628, 634 (9th Cir. 1988). 9 1. Claim One – Unfair Lending Practices Under Nev. Rev. Stat. § 598D 10 Nevada Revised Statutes § 598D.100 prohibits lenders from making loans “without 11 determining, using commercially reasonable means or mechanisms, that the borrower has the 12 ability to repay the home loan.” Nev. Rev. Stat. § 598D.100(1)(b). None of the Defendants is the 13 original lender on Plaintiff’s loan, and “[a] defendant who did not make the loan at issue cannot be 14 subject to an unfair lending practices claim.” Kenneweg v. Indymac Bank, FSB, No. 2:10-CV- 15 1443 JCM (PAL), 2011 WL 13853, at *2 (D. Nev. Jan. 4, 2011); Freeto v. Litton Loan Servicing, 16 LP, No. 3:09-cv-00754-LRH-VPC, 2011 WL 112183, at *2 (D. Nev. Jan. 12, 2011). More 17 fundamentally, however, Plaintiff cannot establish that Defendants’ actions constituted violations 18 of § 598D.100, or even that his loan constituted a “Home Loan,” under the statutory language in 19 place when Plaintiff obtained his loan. See Weinstein v. Mort. Capital Assocs., Inc., Nos. 2:10- 20 CV-01551-PMP-PAL, 2:10-CV-1562-PMP-LRL, 2010 WL 90085, at *3-4 (D. Nev. Jan. 11, 21 2011); Huck v. Countrywide Home Loans, Inc., No. 3:09-cv-00643-RCJ-VPC, 2010 WL 5464147, 22 at *4 (D. Nev. Dec. 28, 2010). Therefore, Plaintiff has failed to state a claim for unfair lending 23 practices. 24 25 26 5 1 2. Claim Two – Deceptive Trade Practices 2 Plaintiff claims that “Defendant [sic] engaged in deceptive trade practices by knowingly 3 making false representations to Plaintiffs [sic] in violation of NRS §598.0915 and NRS §598.0923 4 . . . .” Compl. ¶ 37. This insufficiently pled claim does not provide the court with any reasonable 5 inference of liability. Plaintiff does not identify any relevant subsection in either statute. See 6 McCurdy v. Wells Fargo Bank, N.A., No. 2:10-CV-00880, 2010 WL 4102943, at *3 (D. Nev. Oct. 7 18, 2010) (“Plaintiffs’ claim that Wells Fargo engaged in deceptive trade practices by knowingly 8 making false representations to Plaintiffs in violation of NRS § 598.0915 and § 598.0923 . . . . 9 There are several ways in which a person could engage in a deceptive trade practice under those 10 statutes. However, Plaintiffs do not clarify which provision the defendants have violated on the 11 face of the Complaint. As a result, the Court must dismiss the claim.”). Plaintiff also fails to 12 allege any specific conduct of any particular Defendant. See Weinstein, 2011 WL 90085, at *5 13 (“Plaintiff has failed to allege consumer fraud with particularity. Plaintiff groups all Defendants 14 together, along with unnamed parties, without identifying which Defendant or non-party engaged 15 in what conduct. Plaintiff does not identify a single representation BAC allegedly made, to whom, 16 when it was made, how it was communicated, or why it is false.”). The only allegation Plaintiff 17 makes in support of his deceptive trade practices claim is that “Defendants did not furnish Plaintiff 18 the correct Notice of Servicing that the loan may be assigned, sold or transferred to any other 19 person in violation of 12 U.S.C. 2605(a).” Compl. ¶ 40. Plaintiff cannot base his deceptive trade 20 practices claim on violation of this federal statute. See Simon v. Bank of Am., No. 10-cv-00300- 21 GMN-LRL, 2010 WL 2609436, at *8 (D. Nev. Jun. 23, 2010). Even if Plaintiff could, however, 22 § 2605(a) only requires disclosures “at the time of the application of the loan,” and none of the 23 Defendants were involved in making Plaintiff’s loan. “Further, there are no plausible damages 24 alleged, which flow from the failure to provide a notice of transfer of servicing rights.” Id. at *9. 25 For these reasons, Plaintiff has failed to state a claim for deceptive trade practices. 26 6 1 3. Claim Three – Wrongful Foreclosure 2 Under Nevada law, “[a]n action for the tort of wrongful foreclosure will lie if the trustor or 3 mortgagor can establish that at the time the power of sale was exercised or the foreclosure 4 occurred, no breach of condition or failure of performance existed on the mortgagor’s or trustor’s 5 part which would have authorized the foreclosure or exercise of the power of sale.” Collins v. 6 Union Fed. Sav. & Loan Ass’n, 662 P.2d 610, 623 (Nev. 1983). Thus, “the material issue of fact 7 in a wrongful foreclosure claim is whether the trustor was in default when the power of sale was 8 exercised.” Id., see also Haley v. Elegen Home Lending, LP, No. 3:10-cv-00046-LRH-RAM, 9 2010 WL 1006664, at *1 (D. Nev. March 16, 2010) (“An action for wrongful foreclosure requires 10 that, at the time of the foreclosure sale, the plaintiff was not in breach of the mortgage contract.”). 11 Plaintiff has failed to state a claim against Defendants. Plaintiff’s wrongful foreclosure 12 claim is premature because Defendants have not yet sold the subject property. See In re Mortg. 13 Elec. Registration Sys. (MERS) Litig., --- F.Supp.2d ----, 2010 WL 4038788, 6 -7 (D. Ariz. Sep. 14 30, 2010) (“[A] claim for wrongful foreclosure does not arise until the power of sale is 15 exercised.”) (citing Collins, 662 P.2d at 623); Haley, 2010 WL 1006664, at *1 (“Haley filed his 16 complaint before the property was sold. As such, his claim for wrongful foreclosure is premature 17 and not actionable.”) (citations omitted). However, insofar as Plaintiff requests injunctive relief 18 from harm arising out of a planned foreclosure sale, “[Plaintiff’s] claim for wrongful foreclosure 19 [also] falls short because [he has] failed to allege that [he was] not in default on [his] loan 20 obligations . . . .” Brey v. M&I Bank, No. 2:09-CV-02417-KJD-RJJ, 2010 WL 3526297, at *5 (D. 21 Nev. Sep. 2, 2010). “[A] viable wrongful foreclosure claim requires that [Plaintiff] demonstrate 22 that [he] had not breached [his] obligations under the notes when the foreclosure proceedings were 23 instituted.” Cole v. CIT Grp./Consumer Fin., Inc., 2010 WL 5134999, at *1 (Nev. Dec. 9, 2010). 24 Plaintiff has failed to allege that he is not in default on his loan obligations, and consequently 25 cannot state a valid claim for wrongful foreclosure. See King v. GMAC Mortg., LLC, No. 2:09- 26 7 1 CV-1425 JCM (LRL), 2010 WL 4983297, at *2 (D. Nev. Dec. 2, 2010) (“Here, plaintiff's claim 2 fails as a matter of law because she admits that she had fallen behind on her mortgage payments, 3 meaning she is unable to show that, at the time of foreclosure, no breach of performance under the 4 mortgage contract had occurred”); In re Mortg. Elec. Registration Sys. (MERS) Litig., --- 5 F.Supp.2d ----, 2010 WL 4038788, at *7 (“By failing to plead that their loans are not in default, all 6 of Plaintiffs’ claims for wrongful foreclosure are barred as a matter of law and will be dismissed 7 for failure to state a claim.”); Hasan v. Ocwen Loan Servicing, LLC, No. 2:10-CV-00476-RLH, 8 2010 WL 2757971, at *2 (D. Nev. July 12, 2010) (“In this case, Hasan does not dispute his 9 delinquency on the mortgage payments nor does he allege that he cured his default prior to the 10 trustee sale of his property. Thus, Hasan fails to state a valid claim for wrongful foreclosure.”). 11 Therefore, Plaintiff has failed to state a claim for wrongful foreclosure. 12 4. Claims Four and Five – Conspiracy to Commit Fraud and Conversion; Conspiracy 13 to Commit Fraud Related to the MERS System 14 Plaintiff’s fourth claim alleges that Defendants “formed an association to conspire to 15 deprive Plaintiff of his property through fraud and misrepresentation that would result in Plaintiff 16 entering into loan agreements for which he was ultimately not qualified,” Compl. ¶ 51, and 17 Plaintiff’s fifth claim alleges that Defendants conspired to commit fraud via use and promotion of 18 the MERS system, id. ¶ ¶ 64-79. Under Nevada law, “an actionable civil conspiracy-to-defraud 19 claim exists when there is (1) a conspiracy agreement, i.e., ‘a combination of two or more persons 20 who, by some concerted action, intend to accomplish an unlawful objective for the purpose of 21 harming another;’ (2) an overt act of fraud in furtherance of the conspiracy; and (3) resulting 22 damages to the plaintiff.” Jordan v. State ex rel. Dep’t of Motor Vehicles and Pub. Safety, 110 23 P.3d 30, 51 (Nev. 2005) (some internal quotation marks omitted), overruled on other grounds by 24 Buzz Stew, LLC v. City of North Las Vegas, 181 P.3d 670 (Nev. 2008). “To allege a conspiracy to 25 defraud, a complaint must meet the particularity requirements of Federal Rule of Civil Procedure 26 8 1 9(b) and inform each defendant of its actions that constituted joining the conspiracy.” Anderson v. 2 Deutsche Bank Nat’l Trust Co., No. 2:10-CV-1443 JCM (PAL), 2010 WL 4386958, at *4 (D. 3 Nev. Oct 29, 2010); Graziose v. Am. Home Prods. Corp., 202 F.R.D. 638, 642 (D. Nev. 2001). 4 Allegations of conspiracy should be accompanied by the who, what, when, where, and how of the 5 misconduct. Ness v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003). Here, 6 Plaintiff’s conclusory allegations do not sufficiently plead fraud or ascribe any particular acts to 7 any particular Defendant. Furthermore, other courts have dismissed conspiracy claims based on 8 allegations identical to those in Plaintiff’s Complaint. See Anderson, 2010 WL 4386958, at *4; 9 Simon, 2010 WL 2609436, at *10-11. Therefore, Plaintiff has failed to state valid conspiracy 10 claims. 11 6. Claim Six – Inspection and Accounting 12 Plaintiff makes a claim for “inspection and accounting,” alleging that “[d]ue to the unfair 13 and deceptive nature of the Plaintiff’s loan transaction, the defendants were paid excessive interest 14 and fees . . . [and] proper discovery and accounting will reveal the ‘true realized’ status of the 15 account as stated.” Compl. ¶ 81. “An action for inspection and accounting will prevail only 16 where the plaintiff can establish that there exists a relationship of special trust between the 17 plaintiff and defendant.” Anderson, 2010 WL 4386958, at *4 (citing McCurdy, 2010 WL 18 4102943 (D. Nev. 2010)). Absent special circumstances, no such relationship exists between a 19 lender and a borrower. Giles v. Gen. Motors Acceptance Corp., 494 F.3d 865, 882 (9th Cir. 20 2007). Plaintiff has failed to allege any special circumstances sufficient to give rise to any special 21 relationship, see Anderson, 2010 WL 4386958, at *4; Simon, 2010 WL 2609436, at *11, and has 22 failed to plead any related, actionable claims upon which this cause of action could be based, see 23 Simon, 2010 WL 2609436, at *11. Therefore, Plaintiff has failed to state a valid claim for 24 inspection and accounting. 25 26 9 1 7. Claim Seven – Unjust Enrichment 2 Under Nevada law, unjust enrichment occurs when “a person has and retains a benefit 3 which in equity and good conscience belongs to another.” Leasepartners Corp. v. Robert L. 4 Brooks Trust Dated November 12, 1975, 942 P.2d 182, 187 (Nev. 1997). An action “based on a 5 theory of unjust enrichment is not available when there is an express, written contract, because no 6 agreement can be implied when there is an express agreement.” Id. The doctrine of unjust 7 enrichment thus only “applies to situations where there is no legal contract but where the person 8 sought to be charged is in possession of money or property which in good conscience and justice 9 he should not retain but should deliver to another [or should pay for].” Id. (quoting 66 Am. Jur. 10 2d Restitution § 11 (1973)). 11 Plaintiff has failed to state a valid claim for unjust enrichment. Plaintiff’s unjust 12 enrichment claim fails because it is based upon an express, written contract. See Duncan v. 13 Countrywide Home Loans, Inc., No. 3:09-CV-00632, 2010 WL 5463863, at *6 (D. Nev. Dec. 28, 14 2010) (“Here, Plaintiffs specifically allege contracts. Those contracts, the notes and deeds of trust, 15 specify their terms.”); Josephson v. EMC Mortg. Corp., No. 2:10-CV-336 JCM (PAL), 2010 WL 16 4810715, at *3 (D. Nev. Nov. 19, 2010) (“Since there is no dispute with regards to the existence of 17 an expressed [sic] agreement, the loan, the plaintiffs are unable to claim unjust enrichment.”); 18 Anderson, 2010 WL 4386958, at *4 (“Here, the plaintiff's loan documents created the express, 19 written agreement upon which the plaintiff bases a majority of his claims. Accordingly, there can 20 be no agreement implied where there is an express agreement, and claim seven [unjust 21 enrichment] is dismissed as to all defendants.”). The note and deed of trust specifically “guided 22 the interactions, obligations, and rights of the parties. As such, [Plaintiff] cannot make a claim in 23 equity for actions that are controlled by a contract to which [he is a party].” Kenneweg, 2011 WL 24 13853, at *4. Therefore, Plaintiff has failed to state a valid claim for unjust enrichment. 25 26 10 1 8. Claim Eight – Quiet Title 2 “An action to quiet title is an equitable proceeding in which a party seeks to settle a dispute 3 over ownership of property or to remove a cloud upon his title to the property.” Anderson, 2010 4 WL 4386958, at *4 (citing MacDonald v. Krause, 362 P.2d 724 (Nev. 1961)). Plaintiff’s only 5 allegation in support of this claim is that Defendants “improperly and/or unlawfully” initiated 6 foreclosure proceedings against him, but Plaintiff has failed to state an actionable basis supporting 7 either improper or unlawful activity. Furthermore, a widely accepted rule in such actions is that 8 the party must tender any outstanding loan amount prior to seeking equitable relief. See, e.g., 9 Anderson, 2010 WL 4386958, at *5; Simon, 2010 WL 2609436, at *12-13. Plaintiff has failed to 10 allege that he is not in default on his loan or that he has made an offer of tender. For these 11 reasons, Plaintiff has failed to state a claim for quiet title. 12 9. Claim Nine – Breach of Good Faith and Fair Dealing 13 “It is well established that all contracts impose upon the parties an implied covenant of 14 good faith and fair dealing, which prohibits arbitrary or unfair acts by one party that work to the 15 disadvantage of the other.” Nelson v. Heer, 163 P.3d 420, 426-27 (Nev. 2007). Where one party 16 to a contract “deliberately countervenes the intention and spirit of the contract, that party can incur 17 liability for breach of the implied covenant of good faith and fair dealing.” Hilton Hotels v. Butch 18 Lewis Prods., 808 P.2d 919, 922-23 (Nev. 1991). 19 Here, Plaintiff has failed to state a claim for relief. Plaintiff alleges that Defendants owed 20 duties to “pay as much consideration to Plaintiffs [sic] financial interests as to their own financial 21 interests” and to “comply with all applicable laws of the State of Nevada and published by HAMP 22 guidelines and requirements . . . .” Compl. ¶ 101. As to Defendants’ first alleged duty, “it is 23 simply not required by law.” Simon, 2010 WL 2609436, at *13. As to their second alleged duty, 24 Defendants must certainly comply with all applicable laws. However, Plaintiff has failed to state a 25 cause of action for breach of good faith and fair dealing based on mere reference to HAMP or state 26 11 1 laws. Plaintiff’s factual allegations offered in support of this cause of action merely address 2 circumstances preceding his contract or laws extraneous to the formation or execution of that 3 agreement. Plaintiff has simply failed to allege any facts to support a claim that Defendants 4 deliberately contravened either the intention or spirit of the underlying contract. Therefore, 5 Plaintiff has failed to state a cause of action for breach of good faith and fair dealing. 6 10. Claims Ten, Eleven and Twelve – Injunctive Relief, Declaratory Relief, and 7 Rescission 8 Plaintiff’s tenth, eleventh, and twelfth claims, for injunctive relief, declaratory relief, and 9 rescission, are technically prayers for relief, not independent causes of action. See, e.g., Anderson, 10 2010 WL 4386958, at *5. Consequently, these claims must fail because Plaintiff has failed to 11 state a valid claim upon which relief may be granted. Therefore, Plaintiff’s claims for injunctive 12 relief, declaratory relief, and rescission are dismissed. 13 C. Plaintiff’s Motion for Preliminary Injunction 14 Plaintiff has filed a motion for preliminary injunction. An injunction is “an extraordinary 15 remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” 16 Earth Island Inst. v. Carlton, 626 F.3d 462, 469 (9th Cir. 2010) (citations and internal quotation 17 marks omitted). A party seeking a preliminary injunction must demonstrate (1) that it is likely to 18 succeed on the merits, (2) that it is likely to suffer irreparable harm in the absence of preliminary 19 relief, (3) that the balance of equities tips in its favor, and (4) that an injunction is in the public 20 interest. Id. (citing Winter v. Natural Res. Def. Council, 555 U.S. 7, 129 S.Ct. 365, 374, 172 21 L.Ed.2d 249 (2008)). As demonstrated above, Plaintiff has failed to demonstrate any likelihood of 22 success on the merits. Therefore, Plaintiff’s motion for preliminary injunction is denied. 23 24 25 III. Conclusion For the reasons stated above, THE COURT HEREBY ORDERS that Plaintiff’s motion to remand (#15) is DENIED. 26 12 1 2 3 4 THE COURT FURTHER ORDERS that Defendants’ motion to dismiss (#10, joinder #11) is GRANTED. THE COURT FURTHER ORDERS that Plaintiff’s motion for preliminary injunction(attached as Ex. C to #1) is DENIED. 5 6 Dated this ____ day of January, 2010. 7 8 ________________________ Lloyd D. George United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 13
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
