Annette Britton Cordero v. Bank of America NA et al, No. 2:2013cv02591 - Document 22 (C.D. Cal. 2013)
Court Description: ORDER DENYING PLAINTIFFS MOTION TO REMAND 11 AND GRANTING DEFENDANTS MOTION TO DISMISS 12 15 .Because amendment would be futile, Plaintiffs claims are dismissed with prejudice. by Judge Dean D. Pregerson. (MD JS-6. Case Terminated) . (lc) Modified on 8/28/2013 (lc).
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Annette Britton Cordero v. Bank of America NA et al Doc. 22 1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ANNETTE BRITTON CORDERO, 12 Plaintiff, 13 14 v. BANK OF AMERICA, 15 Defendant. 16 ___________________________ ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 13-02591 DDP (MRWx) ORDER DENYING PLAINTIFF’S MOTION TO REMAND AND GRANTING DEFENDANT’S MOTION TO DISMISS [Dkt. Nos. 11, 12, 15] 17 18 Presently before the court is Plaintiff’s Motion to Remand and 19 Defendant Bank of America’s Motion to Dismiss. 20 the submissions of the parties, the court denies Plaintiff’s Motion 21 to Remand, grants Defendant’s Motion to Dismiss, and adopts the 22 following order. 23 I. Having considered Background 24 On March 15, 2006, Angela Britton Del Rio (Ms. Del Rio) and 25 her late husband executed a $650,000 promissory note in favor of 26 Instant Capital Funding Group, Inc. for the purchase of property 27 at 17031 Paulette Place, Granada Hills, California. 28 Amended Complaint ¶¶ 8-9.) (First The loan was secured by a Deed of Dockets.Justia.com 1 Trust listing Mortgage Electronic Registration Systems, Inc. 2 (“MERS”) as nominee and beneficiary. 3 2010, MERS executed an Assignment (“the Assignment”) of all 4 beneficial interest in the Deed to Defendant’s predecessor in 5 interest. 6 (FAC ¶9) On September 22, (FAC ¶¶ 2, 12-13.) The FAC alleges a First Cause of Action for cancellation of 7 the Assignment under California Civil Code Section 3412 and a 8 Second Cause of Action for unfair business practices pursuant to 9 California Business & Professions Code Section 17200.1 The crux of 10 Plaintiff’s complaint is that the Assignment is invalid, and no 11 transfer of any interest in the Deed to Bank of America ever 12 occurred. 13 II. 14 (FAC ¶ 16.) Defendant now moves to dismiss the FAC. Legal Standard Under 28 U.S.C. § 1441, a court has removal jurisdiction 15 pursuant to 28 U.S.C. § 1332(a) when there is complete diversity 16 of citizenship and the amount in controversy exceeds $75,000. 17 Where the complaint does not include a particular damages figure, 18 the removing defendant must demonstrate, by a preponderance of the 19 evidence, that the amount in controversy exceeds $75,000. Sanchez 20 v. Monumental Life Ins. Co., 102 F.3d 398, 404 (9th Cir.1996); see 21 Gaus, 980 F.2d at 567 (finding that the party seeking removal 22 bears the burden of establishing federal jurisdiction if the 23 complaint leaves the amount in controversy unclear or ambiguous). 24 25 A complaint will survive a motion to dismiss when it contains “sufficient factual matter, accepted as true, to state a claim to 26 27 28 1 Plaintiff’s Request to Voluntarily Dismiss Plaintiff’s Third Cause of Action for violations of California Civil Code Sections 2923.5 and 2924 is granted. 2 1 relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 2 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 3 570 (2007)). 4 must “accept as true all allegations of material fact and must 5 construe those facts in the light most favorable to the 6 plaintiff.” Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). 7 Although a complaint need not include “detailed factual 8 allegations,” it must offer “more than an unadorned, the- 9 defendant-unlawfully-harmed-me accusation.” When considering a Rule 12(b)(6) motion, a court Iqbal, 556 U.S. at 10 678. 11 a statement of a legal conclusion “are not entitled to the 12 assumption of truth.” Id. at 679. 13 merely offers “labels and conclusions,” a “formulaic recitation of 14 the elements,” or “naked assertions” will not be sufficient to 15 state a claim upon which relief can be granted. 16 (citations and internal quotation marks omitted). Conclusory allegations or allegations that are no more than In other words, a pleading that Id. at 678 17 “When there are well-pleaded factual allegations, a court 18 should assume their veracity and then determine whether they 19 plausibly give rise to an entitlement of relief.” Id. at 679. 20 Plaintiffs must allege “plausible grounds to infer” that their 21 claims rise “above the speculative level.” Twombly, 550 U.S. at 22 555. “Determining whether a complaint states a plausible claim for 23 relief” is a “context-specific task that requires the reviewing 24 court to draw on its judicial experience and common sense.” 25 Iqbal, 556 U.S. at 679. 26 /// 27 /// 28 /// 3 1 III. Discussion 2 A. 3 Plaintiff argues that the $75,000 threshold for diversity Amount in Controversy 4 jurisdiction is not met because she does not seek rescission of 5 her $650,000 loan. 6 to Ramirez v. U.S. Bank N.A. and Gaspar v. Wachovia Bank, neither 7 case supports Plaintiff’s position. 8 remanded where the Plaintiff amended his complaint to clarify that 9 he was seeking postponement of a foreclosure sale and $65,000 in (Remand Mot. at 2-4.) Though Plaintiff cites In Ramirez, the court 10 compensatory damages. 11 MEJ, 2012 WL 2838798 at *2 (N.D. Cal. Jul. 10, 2012). 12 the plaintiff sought only a loan modification and unspecified 13 damages. 14 577416 at *4 (N.D. Cal. Feb. 9, 2011). 15 Plaintiff seeks to cancel the Assignment of the Deed to Bank of 16 American and establish that Defendant has no interest whatsoever 17 in the Deed. 18 the loan amount was $650,000, and Plaintiff was over $79,000 in 19 arrears by September 2010. 20 therefore satisfied that the jurisdictional minimum is met. 21 Plaintiff’s Motion to Remand is DENIED. Ramirez v. U.S. Bank N.A., No. C-12-0851 In Gaspar, Gaspar v. Wachovia Bank, No. C 10-3597 SBA, 2011 WL Here, in contrast, While the exact value of the property is unclear, (FAC Exs. A, C.) The court is 22 B. 23 Under California Civil Code Section 3412, a person may seek Cancellation of Written Instrument 24 to cancel a written instrument if there is a “reasonable 25 apprehension that if left outstanding it may cause serious injury 26 to [that] person[,] against whom it is void or voidable.” 27 Civ. Code § 3412; Nguyen v. Bank of America Nat’l Ass’n, No. 11- 28 CV-3318-LHK, 2011 WL 5574917 at * 5 (N.D. Cal. Nov. 15, 2011). 4 Cal. 1 The Assignment, however, is an agreement between MERS and 2 Defendant. 3 that agreement. 4 of the Deed to Defendant, the Assignment would not change 5 Plaintiff’s debt obligation, and therefore would not harm 6 Plaintiff. 7 WL 2049388 at *3 (N.D. Cal. May 14, 2013). 8 of specific harm or serious injury to Plaintiff, she lacks 9 standing to challenge MERS’ Assignment of the Deed to Defendant.2 10 Tatola v. HSBC Bank USA, No. C-11-3994 MMC, 2011 WL 5025072 at *3 11 (N.D. Cal. Oct. 21, 2011) (dismissing Section 3412 claim); See 12 also Steele v. First Magnus Fin, Corp., No. 12-cv-5054-RS, 2013 WL 13 4039976 at *2 (N.D. Cal. Aug. 7, 2013); Soberanis v. MERS, No. 13- 14 CV-1296-H, 2013 WL 4046458 at *7 (S.D. Cal. Aug. 8, 2013). Plaintiff is neither a party to nor a beneficiary of Even if there were some flaw in MERS’ assignment Flores v. GMAC Mortgage, LLC, No. C. 12-794 SI, 2013 Absent some allegation 15 C. 16 California’s unfair competition law (UCL) proscribes business Unfair Competition 17 practices that are unlawful, fraudulent, or unfair. 18 Profs. Code § 7200; Davis v. HSBC Bank Nevada, N.A., 691 F.3d 19 1152, 1168-69 (9th Cir. 2012). 20 plaintiff must allege (1) economic injury that (2) resulted from 21 the alleged improper practice. 22 Kwikset Corp. v. Superior Court, 51 Cal.4th 310, 322 (2011). Cal. Bus. & To state a claim under the UCL, a Cal. Bus. & Prof. Code § 17204; 23 Here, Plaintiff contends that she has been harmed because the 24 title to her home has been clouded and because she has spent funds 25 26 27 28 2 While the FAC does make some vague reference to clouded title upon Plaintiff’s property, such allegations appear to refer to Plaintiff’s withdrawn cause of action under California Civil Code Sections 2923.5 and 29324, which centered upon a Notice of Default and Notice of Trustee’s sale. (FAC ¶ 20.) 5 1 on attorneys’ fees. (FAC ¶ 43.) Potential clouds on title, 2 however, do not constitute a loss of money or property, as is 3 required to establish economic injury under the UCL. 4 Bank, Nat’l Ass’n, No. EDCV 12-2171-VAP, 2013 WL 1398964 at *9 5 (C.D. Cal. Apr. 3, 2013); Gyene v. Steward Fin., Inc., No. CV 12- 6 4355 DSF, 2013 WL 146191 at *4 (C.D. Cal. Jan. 11, 2013); Phong 7 Tran v. Bank of America, N.A., No. 12-4504 PSG, 2013 WL 2368048 at 8 *4 (N.D. Cal. May 29, 2013). 9 sufficient to confer standing under the UCL. Hunt v. U.S. Nor are Plaintiff’s legal expenses Thompson v. 10 Residential Credit Solutions, Inc., No. CIV 2:11-2261 WBS, 2012 WL 11 260357 at *5 (E.D. Cal. Jan. 26, 2012) (“Under Plaintiff’s 12 reasoning, a private plaintiff bringing a UCL claim automatically 13 would have standing merely by filing suit.” (quotation and 14 citation omitted). 15 claim must be dismissed. 16 IV. 17 Absent any injury in fact, Plaintiff’s UCL Conclusion For the reasons stated above, Plaintiff’s Motion to Remand is 18 DENIED and Defendant’s Motion to Dismiss is GRANTED. 19 amendment would be futile, Plaintiff’s claims are dismissed with 20 prejudice. Because 21 22 23 IT IS SO ORDERED. 24 25 26 Dated: August 28, 2013 DEAN D. PREGERSON United States District Judge 27 28 6
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