Maxwell v. MortgageIT, Inc., No. 1:2008cv01329 - Document 22 (E.D. Cal. 2009)

Court Description: MEMORANDUM DECISION and ORDER on Defendant MortgageIT, Inc.'s Motion to Dismiss, Motion for a More Definite Statement, and Motion to Strike, signed by Judge Oliver W. Wanger on 2/18/09: 1) Motion to Dismiss 10 is DENIED; 2) Motion for a More Definite Statement 10 is DENIED; Motion to Strike 9 is GRANTED. (Hellings, J)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 1:08-cv-001329 OWW SMS SAMUEL MAXWELL, Plaintiff, v. UNION FIDELITY MORTGAGE, INC., ERIN REILLY, RANDOLPH MARTIN, MORTGAGEIT, INC., AND DOES 1-20, INCLUSIVE, MEMORANDUM DECISION AND ORDER ON DEFENDANT MORTGAGEIT, INC. S MOTION TO DISMISS, MOTION FOR A MORE DEFINITE STATEMENT, AND MOTION TO STRIKE (DOCS. 9 AND 10) Defendants. 17 I. INTRODUCTION. 18 19 Plaintiff Samuel Maxwell s ( Maxwell ) complaint arises out 20 of a home mortgage refinance transaction he contends he entered 21 into with Defendants Union Fidelity Mortgage, Inc., Erin Reilly, 22 and Randolph Martin ( Union Defendants ) in June 2007 for 23 approximately $358,000. 24 Defendant MortgageIT, Inc. ( MortgageIT ). 25 Defendants failed to disclose and knowingly misrepresented key 26 terms of the loan, including the interest rate and finance 27 charges, in violation of the federal Truth in Lending Act 28 ( TILA ), 15 U.S.C. § 1601 et seq., and California s unfair The loan was subsequently purchased by 1 Plaintiff alleges 1 competition law ( UCL ), codified at California Business and 2 Professions Code § 17200 et seq. 3 law supplemental claims solely against the Union Defendants: 4 breach of fiduciary duty, fraud, and financial abuse of an elder. 5 Before the court for decision are Defendant MortgageIT s He also alleges state common 6 motion to dismiss, motion for a more definite statement, and 7 motion to strike. 8 claim pursuant to Fed. R. Civ. P. 12(b)(6) on the ground that the 9 complaint contains only general allegations that are insufficient Defendant moves to dismiss Plaintiff s TILA 10 to state a TILA violation. In the alternative, Defendant moves 11 for a more definite statement pursuant to Fed. R. Civ. P. 12(e). 12 Defendant also moves to dismiss the UCL claim pursuant to Fed. R. 13 Civ. P. 12(b)(6). 14 Plaintiff s TILA claim for rescission pursuant to Fed. R. Civ. P. 15 12(f) on the ground that Plaintiff has failed to first notify the 16 lender of his intent to rescind as required under the TILA. Finally, MortgageIT moves to strike 17 18 19 II. FACTUAL AND PROCEDURAL BACKGROUND. In June 2007, Plaintiff entered into a written loan contract 20 with Union Fidelity Mortgage, Inc. for $358,000 secured by 21 Plaintiff s home in Fresno, California. 22 Union Defendants failed to make disclosures required under the 23 TILA, failed to provide Plaintiff with copies of the required 24 disclosures, and misrepresented the terms of the loan, including 25 the interest rate, finance charges, and total amount financed. 26 Plaintiff asserts that the Union Defendants falsely represented 27 that the loan would be in his best interests, that the payments 28 would be affordable for him, and that he would be better off 2 Plaintiff alleges the 1 financially as a result. Instead, Plaintiff contends the loan 2 caused him financial detriment and was beyond his ability to pay, 3 putting him in danger of losing his house and causing him 4 considerable emotional distress. Plaintiff filed his complaint in the Superior Court of 5 6 California, County of Fresno, on May 6, 2008. (Doc. 5-2.) 7 Defendant MortgageIT was served on August 5, 2008 and removed the 8 action to federal court on September 5, 2008. 9 September 11, 2008, Defendant MortgageIT filed a motion to 10 dismiss under Fed. R. Civ. P. 12(b)(6), a motion for a more 11 definite statement pursuant to Fed. R. Civ. P. 12(e), and a 12 motion to strike pursuant to Fed. R. Civ. P. 12(f). 13 10.) 14 7, 2008. 15 November 17, 2008. (Doc. 5.) On (Docs. 9 & Plaintiff filed oppositions to all the motions on November (Docs. 13 & 14.) MortgageIT filed its reply briefs on (Docs. 15 & 16.) 16 III. LEGAL STANDARD. 17 18 19 A. Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) tests the legal 20 sufficiency of the complaint. Novarro v. Black, 250 F.3d 729, 21 732 (9th Cir. 2001). 22 12(b)(6) motion to dismiss does not need detailed factual 23 allegations, it is required to contain "more than labels and 24 conclusions, and a formulaic recitation of the elements of a 25 cause of action will not do. 26 to raise a right to relief above the speculative level, on the 27 assumption that all the allegations in the complaint are true 28 (even if doubtful in fact)." While a complaint attacked by a Rule Factual allegations must be enough Bell Atlantic Corp. v. Twombly, 550 3 1 U.S. 544, 127 S.Ct. 1955, 1964-65 (2007); see also Gilligan v. 2 Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir. 1997) (issue is not 3 whether plaintiff will ultimately prevail, but whether claimant 4 is entitled to offer evidence to support the claim). 5 is warranted under Rule 12(b)(6) where the complaint lacks a 6 cognizable legal theory or where the complaint presents a 7 cognizable legal theory yet fails to plead essential facts under 8 that theory. 9 530, 534 (9th Cir. 1984). Dismissal Robertson v. Dean Witter Reynolds, Inc., 749 F.2d In deciding a motion to dismiss, the 10 court accepts as true all material factual allegations in the 11 complaint and construes them in the light most favorable to the 12 plaintiff. 13 (9th Cir. 2002). 14 See Newman v. Sathyavaglswaran, 287 F.3d 786, 788 The court need not accept as true allegations that 15 contradict facts which may be judicially noticed. See Mullis v. 16 United States Bankruptcy Ct., 828 F.2d 1385, 1388 (9th Cir. 17 1987). 18 including pleadings, orders, and other papers filed with the 19 court or records of administrative bodies, see Mack v. South Bay 20 Beer Distributors, Inc., 798 F.2d 1279, 1282 (9th Cir. 1986), 21 while conclusions of law, conclusory allegations, unreasonable 22 inferences, or unwarranted deductions of fact need not be 23 accepted. 24 988 (9th Cir. 2001); see also Branch v. Tunnell, 14 F.3d 449, 453 25 (9th Cir. 1994) ( [A] document is not outside the complaint if 26 the complaint specifically refers to the document and if its 27 authenticity is not questioned. ). 28 may be disregarded if contradicted by facts established by For example, matters of public record may be considered, See Sprewell v. Golden State Warriors, 266 F.3d 979, 4 Allegations in the complaint 1 exhibits attached to the complaint. Sprewell, 266 F.3d at 988. 2 Thus when ruling on a motion to dismiss, the court may consider 3 facts alleged in the complaint, documents attached to the 4 complaint, documents relied upon but not attached to the 5 complaint when authenticity is not contested, and matters of 6 which the court may take judicial notice. 7 146 F.3d 699, 705-06 (9th Cir. 1988). Parrino v. FHP, Inc., 8 9 B. Motion for a More Definite Statement Pursuant to Fed. R. Civ. P. 12(e). 10 Federal Rule of Civil Procedure 12(e) provides: 11 12 13 14 15 16 A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired. If the court orders a more definite statement and the order is not obeyed within 10 days after notice of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate order. 17 A Rule 12(e) motion for a more definite statement must be 18 considered in light of the liberal pleading standards of Rule 19 8(a) in federal court. See Bureerong v. Uvawas, 922 F.Supp. 20 1450, 1461 (C.D. Cal. 1996) (citing Sagan v. Apple Computer, 21 Inc., 874 F.Supp. 1072, 1077 (C.D. Cal. 1994)) ( Motions for a 22 more definite statement are viewed with disfavor and are rarely 23 granted because of the minimal pleading requirements of the 24 Federal Rules. ). Under the liberal pleading standards, 25 pleadings in the federal courts are only required to fairly 26 notify the opposing party of the nature of the claim. A.G. 27 Edwards & Sons, Inc. v. Smith, 736 F.Supp. 1030, 1032 (D. Ariz. 28 5 1 1989). A Rule 12(e) motion is proper only if the complaint is so 2 3 indefinite that the defendant cannot ascertain the nature of the 4 claim being asserted, meaning the complaint is so vague that the 5 defendant cannot begin to frame a response. 6 v. Edison Bros. Stores, Inc., 525 F.Supp. 940, 949 (E.D. Cal. 7 1981); Boxall v. Sequoia Union High Sch. Dist., 464 F.Supp. 1104, 8 1114 (N.D. Cal. 1979). 9 complaint is specific enough to notify defendant of the substance See Famolare, Inc. The motion must be denied if the 10 of the claim being asserted. San Bernardino Pub. Employees Ass'n 11 v. Stout, 946 F.Supp. 790, 804 (C.D. Cal. 1996) ( A motion for a 12 more definite statement is used to attack unintelligibility, not 13 mere lack of detail, and a complaint is sufficient if it is 14 specific enough to apprise the defendant of the substance of the 15 claim asserted against him or her. ). 16 denied if the detail sought by a motion for more definite 17 statement is obtainable through discovery. 18 Barbara High Sch. Dist., 48 F.Supp.2d 1225, 1228 (C.D. Cal. 19 1998). The motion should be Davison v. Santa 20 21 C. Motion to Strike Pursuant to Fed. R. Civ. P. 12(f). 22 Rule 12(f) provides that redundant, immaterial, 23 impertinent, or scandalous matter may be stricken from any 24 pleading. 25 to pleadings. 26 885 (9th Cir. 1983). 27 infrequently granted. 28 Spectrolab, Inc., 744 F.Supp. 945, 947 (C.D. Cal. 1990), Fed. R. Civ. P. 12(f). A motion to strike is limited Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, Motions to strike are disfavored and Pease & Curren Refining, Inc. v. 6 1 abrogated on other grounds by Stanton Road Assocs. v. Lohrey 2 Enters., 984 F.2d 1015 (9th Cir. 1993). 3 granted only where it can be shown that none of the evidence in 4 support of the allegation is admissible. Such motions should be Id. 5 IV. DISCUSSION. 6 A. Motion to Dismiss the TILA Claim, Or Alternatively, Motion for a More Definite Statement. 1. 7 Overview of the TILA 8 9 The purpose of the TILA is to protect consumers by providing 10 them with accurate information when they shop for credit. See 11 Anderson Bros. Ford v. Valencia, 452 U.S. 205, 219-20 (1981). 12 Specifically, the TILA was enacted to assure a meaningful 13 disclosure of credit terms so that the consumer will be able to 14 compare more readily the various credit terms available to him 15 and avoid the uninformed use of credit, and to protect the 16 consumer against inaccurate and unfair credit billing and credit 17 card practices. 15 U.S.C. § 1601(a). The Act requires creditors 18 to make clear and accurate disclosures of terms dealing with 19 things like finance charges, annual percentage rates of interest, 20 and the borrower's rights. Beach v. Ocwen Fed. Bank, 523 U.S. 21 410, 412 (1998). If the creditor fails to do so, it can be held 22 liable for criminal penalties, see 15 U.S.C. § 1611, and 23 statutory and actual damages (including a statutory penalty of 24 twice the finance charge), see 15 U.S.C. § 1640(a). Beach, 523 25 U.S. at 412. For certain loan transactions - those involving 26 security interests in a debtor's primary residence - the debtor 27 can also demand that the creditor rescind the mortgage if certain 28 7 1 material disclosures are not made. See 15 U.S.C. § 1635(a). The TILA reflects a transition in congressional policy from 2 3 a philosophy of Let the buyer beware to one of Let the seller 4 disclose. 5 U.S. 356, 377 (1973). 6 the Federal Reserve Board to elaborate and expand the legal 7 framework governing commerce in credit and the Board has 8 exercised its authority by promulgating Regulation Z, set forth 9 at 12 C.F.R. § 226 et seq. 10 444 U.S 555, 559-60 (1980). Mourning v. Family Publications Serv., Inc., 411 Congress delegated expansive authority to Ford Motor Credit Co. v. Milhollin, 11 2. Plaintiff s TILA Allegations 12 13 14 15 16 17 Defendant argues that the complaint contains only general allegations with respect to the TILA claim and that it fails to identify the specific disclosures Defendants failed to make or explain how Defendants conduct violated the TILA. In his complaint, Plaintiff alleges that the Union 18 Defendants told him he would receive an interest rate of 1% for 19 five years, that the loan would save him $12,900 per year, and 20 that the loan was affordable for him. 21 ¶10.) 22 disclosed to Plaintiff, had an interest rate significantly higher 23 than the rate which he was promised, was and is actually beyond 24 Plaintiff s means to pay, which was hidden from him by their 25 misleading statements and misrepresentations as to the amounts he 26 would need to pay under the loan. 27 asserts that MortgageIT purchased the loan while the deficiencies 28 and falsity of the disclosures were readily apparent on the face (Doc. 5-2, Complaint at He asserts that the loan included charges that were not 8 (Id. at ¶11.) He also 1 2 of the loan documents. (Id. at ¶12.) In his First Cause of Action, Plaintiff alleges: 3 Defendants violated the provisions of the Federal Truth in Lending Act and Regulation Z under that Act in relation to the above described transaction by failing to make required disclosures, including but not limited to disclosures related to the finance charges, charging excessive fees, entering into the contract without a good faith belief that Plaintiff could make the required payments, and Defendants also violated the Federal Truth in Lending Act and Regulation Z by failing to provide Plaintiff with copies of the required disclosures and committing other acts according to proof. Said violations are apparent on the face of the loan documents. Among other things, the truth in lending disclosure statement stated that the interest rate was only 2.321% and that the total finance charges would be less than $190,000.00. In reality, the interest rate on the loan was approximately 9.9% and the finance charges to be paid are actually several hundred thousand dollars more than the amount disclosed. 4 5 6 7 8 9 10 11 12 13 14 (Doc. 5-2, Complaint at ¶16.) 15 16 Under the TILA, the material terms that must be disclosed by 17 the creditor include the finance charge, the annual percentage 18 rate, the amount financed, an itemization of the amount financed, 19 the total payments, among others. 20 § 226.18. 21 properly reflect the terms of the legal obligation between the 22 parties. 23 disclosures must be accurate. 24 ( Accordingly, the [Truth in Lending] Act requires creditors to 25 provide borrowers with clear and accurate disclosures of terms 26 dealing with things like finance charges, annual percentage rates 27 of interest, and the borrower s rights. )(emphasis added); see 28 Goldman v. First Nat l Bank of Chicago, 532 F.2d 10, 22 (7th Cir. 15 U.S.C. § 1638(a); 12 C.F.R. Regulation Z requires that these disclosures must 12 C.F.R. § 226.17(c)(1). In other words, TILA Beach, 523 U.S. at 412 9 1 1976) ( Congress clearly sought to compel accurate 2 disclosure... ); In re Cox, 114 B.R. 165, 168 (Bankr. C.D. Ill. 3 1990) ( A meaningful disclosure cannot be one which is 4 inaccurate. ). 5 Plaintiff has alleged that the interest rate listed in the 6 truth in lending disclosure statement was inaccurate, as was the 7 finance charge total. 8 finance charges he actually incurred under the loan were much 9 higher than those listed in the disclosure statement. He asserts that the interest rate and In 10 addition, Plaintiff contends the Defendants inaccurately 11 disclosed the total payment amount due under the loan. 12 claims other charges were not disclosed to him and that Union 13 failed to provide him copies of the required disclosures as 14 mandated by the TILA. He also 15 Federal Rule of Civil Procedure 8(a) requires that a 16 pleading set forth a short and plain statement of the claim 17 showing that the pleader is entitled to relief. Under this rule, 18 a pleading must give fair notice and state the elements of the 19 claim plainly and succinctly. Jones v. Cmty. Redevelopment 20 Agency, 733 F.2d 646, 649 (9th Cir. 1984). MortgageIT argues 21 that Plaintiff s complaint fails to include specific allegations 22 and descriptions as to Defendants allegedly unlawful acts, but 23 the law does not require that TILA claims be stated with 24 particularity. A review of Ninth Circuit authority did not 25 reveal any caselaw imposing the specificity requirements of Fed. 26 R. Civ. P. 9(b) with respect to TILA claims. 27 28 Allegations of inaccurate disclosures under the TILA are 10 1 sufficient to survive a motion to dismiss. See Staley v. 2 Americorp Credit Corp., 164 F.Supp.2d 578, 583 (D. Md. 2001) 3 (allegations of inaccurate finance charges and APR sufficient to 4 state a claim for relief); Swanagan v. Al Piemonte Ford Sales, 5 Inc., No. 94 C 4070, 1995 WL 493480, at *4 (N.D. Ill. August 15, 6 1995). 7 finance charges, total payment amount, and interest rate were 8 inaccurate, and that the proper notices were not provided to him 9 by the lender. Plaintiff has alleged the disclosures with respect to He details the specific percentage rate that was 10 disclosed to him and what he alleges was the actual effective 11 rate. 12 his claim and provide sufficient detail to allow Defendants to 13 respond to the claim. 14 vague or ambiguous that the party cannot reasonably prepare a 15 response. 16 additional claims under the TILA and fails to disclose them in 17 discovery, they will be barred. 18 Plaintiff s allegations give fair notice to Defendants of Moreover, the facts as alleged are not so See Fed. R. Civ. P. 12(e). If Plaintiff has Accordingly, Defendant s motion to dismiss the TILA claim is 19 DENIED. 20 DENIED. Defendant s motion for a more definite statement is also 21 22 23 24 25 26 27 B. Motion to Dismiss the UCL Claim. The UCL prohibits unfair competition, which is defined as including any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by [California s false advertising law]. Cal. Bus. & Prof. Code § 17200. The purpose of the UCL is to 28 11 1 protect both consumers and competitors by promoting fair 2 competition in commercial markets for goods and services. 3 v. Nike, Inc., 27 Cal.4th 939, 949 (2002). 4 is broad. 5 business practice and that at the same time is forbidden by law. 6 Cel-Tech Communications, Inc. v. L.A. Cellular Tel. Co., 20 7 Cal.4th 163, 180 (1999). 8 by making them independently actionable as unfair competitive 9 practices. Kasky The scope of the UCL The UCL covers anything that can properly be called a It borrows violations from other laws Korea Supply Co. v. Lockheed Martin Corp., 29 Cal.4th 10 1134, 1143 (2003). 11 unfair even if not specifically proscribed by some other law. 12 Cel-Tech, 20 Cal.4th at 180. 13 disjunctive, it establishes three varieties of unfair competition 14 - acts or practices which are unlawful, or unfair, or 15 fraudulent. 16 sweeping language to permit tribunals to enjoin on-going wrongful 17 business conduct in whatever context such activity might occur. 18 Barquis v. Merchants Collection Ass n, 7 Cal.3d 94, 111 (1972). Id. Additionally, a practice may be deemed Because the UCL is written in the The state legislature intended by this 19 Plaintiff states in his complaint that the actions alleged 20 herein undertaken by defendants constituted unlawful, unfair and 21 fraudulent business acts or practices and portions of that 22 conduct was based on unfair, deceptive and misleading advertising 23 and/or promotional materials. 24 First, Defendant argues that Plaintiff s failure to plead his UCL 25 claim with reasonable particularity supports dismissal of the 26 claim, citing Khoury v. Maly s of California, Inc., 14 27 Cal.App.4th 612 (1993). (Doc. 5-2, Complaint at ¶38.) In Khoury, a California appeals court 28 12 1 upheld dismissal of a UCL claim where the complaint failed to 2 describe with any reasonable particularity the facts supporting 3 violation. 4 alleged, Defendants breached this statute by refusing to sell 5 [products] to plaintiff, for the purpose of ruining and 6 interfering with his beauty and supply business, with the effect 7 of misleading plaintiff s customers. 8 reasoned that the facts asserted did not explain the manner of 9 misleading appellant s customers. 14 Cal.App.4th at 619. The complaint summarily Id. The appeals court The complaint does not 10 describe the manner in which respondent s practice is 11 unlawful. 12 Id. (citations omitted). The instant complaint is unlike that dismissed in Khoury. 13 Plaintiff explains the manner in which he was allegedly misled, 14 stating that the interest rate, finance charges, and other 15 charges under the loan were misrepresented to him and 16 inaccurately disclosed. 17 actions and practices were unlawful under TILA and state common 18 law. 19 dismissal is not proper on this ground. Moreover, he asserts that Defendants Plaintiff s UCL claim is sufficiently detailed that 20 Next, Defendant argues that because Plaintiff s factual 21 allegations are insufficient to state a TILA claim, the UCL claim 22 also fails because it is a derivative claim that requires 23 violation of some other law. Because the TILA claim should be 24 dismissed, according to Defendant, the UCL claim should also be 25 dismissed. As an initial matter, Defendant s position ignores 26 the other common law claims Plaintiff alleges, which are not the 27 subject of the motion to dismiss. 28 13 Even if the TILA claim did not 1 survive, these remaining claims could form the basis of a 2 derivative UCL claim and thus dismissal on this ground is 3 premature. 4 that Defendants made inaccurate disclosures under the TILA are 5 sufficient to state a claim for relief under the TILA. 6 Accordingly, Plaintiff s TILA claim and state common law claims 7 for breach of fiduciary duty, fraud, and financial abuse of an 8 elder allege unlawful practices which form the predicate for a 9 UCL claim. 10 is DENIED. Moreover, as detailed above, Plaintiff s allegations Defendant s motion to dismiss Plaintiff s UCL claim 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 C. Motion to Strike. To seek rescission under the TILA, a plaintiff must notify the creditor of his or her intent to rescind in writing and provide the creditor an opportunity to respond prior to filing a lawsuit. The TILA notice requirements provide: [t]he obligor shall have the right to rescind the transaction until midnight of the third business day following the consummation of the transaction or the delivery of the information and rescission forms required under this section together with a statement containing the material disclosures required under this subchapter, whichever is later, by notifying the creditor, in accordance with regulations of the Board, of his intention to do so. The creditor shall clearly and conspicuously disclose, in accordance with regulations of the Board, to any obligor in a transaction subject to this section the rights of the obligor under this section...Within 20 days after receipt of a notice of rescission, the creditor shall return to the obligor any money or property given as earnest money, downpayment, or otherwise, and shall take any action necessary or appropriate to reflect the termination of any security interest created under the transaction. 15 U.S.C. §§ 1635(a)-(b). The TILA s implementing regulations 28 14 1 specify how a plaintiff gives notice: 2 To exercise the right to rescind, the consumer shall notify the creditor of the rescission by mail, telegram or other means of written communication. Notice is considered given when mailed, when filed for telegraphic transmission or, if sent by other means, when delivered to the creditor s designated place of business. 3 4 5 6 7 8 9 12 C.F.R. § 226.23(a)(2). The First Circuit succinctly summarized the rescission process: 10 The rescission process is intended to be private, with the creditor and debtor working out the logistics of a given rescission. Not all debtors who suspect (or know) that they have been subjected to a TILA violation will choose to rescind, in large part because rescission entails the return of loan proceeds to the creditor. If, however, a debtor elects to rescind, the mechanics of rescission are uncomplicated: the debtor notifies the creditor in writing of his or her desire to rescind, and the creditor must respond to that election within twenty days. During this response period, the creditor may comply with the request, resist rescission entirely, or agree to rescission while seeking equitable modifications. Should disagreements ensue or problems arise, either party may repair to a federal court. 11 12 13 14 15 16 17 18 19 20 21 McKenna v. First Horizon Home Loan Corp., 475 F.3d 418, 421-422 (1st Cir. 2007). Plaintiff alleges as to his rescission claim in the First 22 Cause of Action: In addition, Plaintiff is entitled to rescind 23 the loan transaction if he so opts. 24 ¶19.) 25 [f]or a judicial declaration that the loan transaction is 26 rescinded if Plaintiff so opts. 27 (Doc. 5-2, Complaint at In his prayer for relief as to the TILA claim, he prays (Id. at page 9, line 27.) Defendant argues this language should be stricken from the 28 15 1 complaint because Plaintiff has not notified the creditor of his 2 intent to rescind as required under the TILA. 3 dispute this lack of notice. 4 not seeking rescission at this time, but, as alleged, he is 5 entitled to do so. 6 provides a three-year window after the date of consummation of 7 the transaction for a consumer to exercise the right to rescind. 8 15 U.S.C. § 1635(f). 9 should not be stricken as he is within this three-year window and 10 Plaintiff does not Instead, he asserts, Plaintiff is (Doc. 14, Opposition at 2.) The TILA Plaintiff argues that the rescission claim may choose to seek rescission at some future date. 11 Plaintiff cannot set forth a tentative claim for 12 rescission under the TILA, which requires formal notice, to 13 retain an option to seek rescission at some undetermined date 14 in the future. 15 may seek leave to file an amended complaint. 16 states that he does not seek rescission under the TILA at this 17 time, the language in his complaint related to rescission is 18 immaterial and is properly stricken. Should Plaintiff decide to seek rescission, he Because Plaintiff 19 Defendant s motion to strike is GRANTED. Plaintiff s claim 20 for rescission under the TILA set forth in his complaint at 21 Paragraph 19 and Page 9, Line 27 is STRICKEN. 22 23 24 25 26 V. CONCLUSION. For the foregoing reasons, Defendant MortgageIT s: 1) motion to dismiss Plaintiff s TILA and UCL claims is DENIED; 27 2) motion for a more definite statement is DENIED; 28 16 1 3) motion to strike is GRANTED. 2 3 4 5 6 7 IT IS SO ORDERED. Dated: 0c0j70 February 18, 2009 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17

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