Rosalyn Omoyele et al v. Michelle Simon et al

NOTICE OF MOTION AND MOTION to Dismiss Case

C.D. Cal.May 18, 2017

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 70000.3045/10723639.1 Case No. 5:17-cv-00453-AG-DTB Notice of Motion and Motion to Dismiss Plaintiff’s Complaint ROBERT J. GANDY (State Bar No. 225405) rjg@severson.com STEPHEN D. BRITT (State Bar No. 279793) sxb@severson.com SEVERSON & WERSON, A Professional Corporation 19100 Von Karman Avenue, Suite 700 Irvine, California 92612 Telephone: (949) 442-7110 Facsimile: (949) 442-7118 MARK JOSEPH KENNEY (State Bar No. 87345) mjk@severson.com SEVERSON & WERSON, A Professional Corporation One Embarcadero Center, Suite 2600 San Francisco, California 94111 Telephone: (415) 398-3344 Facsimile: (415) 956-0439 Attorneys for Defendants BANK OF AMERICA, N.A., as successor by April 27, 2009 de jure merger with Countrywide Bank, FSB (erroneously sued as Countrywide Bank FSB); COUNTRYWIDE HOME LOANS, INC.; RECONTRUST COMPANY, N.A. (erroneously sued as Recon Trust Company, N.A.; and MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA OMOYELE, ROSALYN, WILLIAMS, JACQUELYN, Plaintiffs, vs. Michelle Simon, an Individual, RICHMOND AMERICAN HOMES OF CALIFORNIA, INC., a Colorado Corporation, COUNTRYWIDE BANK FSB, a failed Federal Savings Bank, and successor, COUNTRYWIDE HOME LOANS, INC., successor, C. Klenovich, an Individual, Beate Geery, an Individual, FIRST AMERICAN TITLE COMPANY, NHS, RECON TRUST COMPANY, N.A., a defunct trust company, successor, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., a Delaware Corporation, Charles N. Spense, an Individual, Victoria Gutierrez, GREEN TREE SERVICING LLC, Jerry Steinhaus, an Individual, Julian Ojeda, an Individual, DITECH FINANCIAL, RCO LEGAL, INC., NORTHWEST TRUSTEE SERVICES, INC., www.US-Foreclosure.com, www.Auction.com, and DOES 1 - 20, Inclusive, Defendants. Case No. 5:17-cv-00453-AG-DTB Hon. Andrew J. Guilford Ctrm. 10D NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT PURSUANT TO FRCP 12(b)(6); MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF [Filed concurrently with Request for Judicial Notice] Date: June 20, 2017 Time: 10:00 a.m. Crtrm.: 10D Action Filed: March 10, 2017 Trial Date: None Set Case 5:17-cv-00453-AG-DTB Document 8 Filed 05/18/17 Page 1 of 11 Page ID #:35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 70000.3045/10723639.1 i Case No. 5:17-cv-00453-AG-DTB Table of Contents TABLE OF CONTENTS Page I. INTRODUCTION .................................................................................................. 1 II. STATEMENT OF THE RELEVANT FACTS..................................................... 2 III. LEGAL STANDARD ............................................................................................ 3 IV. WILLIAMS FAILS TO ESTABLISH ARTICLE III STANDING .................... 5 V. OMOYELE’S CLAIMS ARE BARRED DUE TO THE BK CASE.................. 6 A. Omoyele Lacks Standing To Assert Her Claims........................................ 6 B. Omoyele Is Judicially Estopped From Bringing Her Claims .................... 7 VI. PLAINTIFFS CANNOT ESTABLISH A BREACH OF FIDUCIARY DUTY CLAIM AGAINST DEFENDANTS ........................................................ 8 A. Plaintiffs’ Claim Is Time-Barred................................................................. 9 B. Plaintiffs Cannot Establish A Fiduciary Duty Owed By Defendants .................................................................................................... 9 C. Plaintiffs Fail To Plead A Breach Of Fiduciary Duty By Defendants .................................................................................................. 10 VII. PLAINTIFFS’ EQUITABLE CLAIMS FAIL AS A MATTER OF LAW ...... 11 A. Plaintiffs’ “Satisfaction Of The Lien” Claim Fails .................................. 11 1. Plaintiffs’ Claim Is Time-Barred, And Fails For Lack Of Tender............................................................................................... 12 2. Plaintiffs Fail To Plead Actionable Facts To Support This Claim ................................................................................................ 13 B. Plaintiffs’ “Demand For Validation Of Debt” And “Cease And Desist Notice” Claims Fail As Matter Of Law........................................ 13 1. Plaintiffs Fail To State Cognizable Causes Of Action .................. 13 Case 5:17-cv-00453-AG-DTB Document 8 Filed 05/18/17 Page 2 of 11 Page ID #:36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 70000.3045/10723639.1 ii Case No. 5:17-cv-00453-AG-DTB Table of Contents 2. Plaintiffs Fail To Assert A Viable RESPA Claim .......................... 14 3. Plaintiffs Fail To Plead FDCPA And/Or RFDCPA Violations ......................................................................................... 15 C. Plaintiffs’ Request For “Rescission Of Power Of Attorney” Fails ......... 15 VIII. PLAINTIFFS’ RICO ACTION FAILS AS A MATTER OF LAW ................. 17 A. Plaintiffs Fail To Plead Their RICO Claim With Requisite Particularity................................................................................................. 17 B. Plaintiffs Fail To Plead Any Requisite Offenses Under RICO............... 18 C. Plaintiffs’ RICO Claim Is Necessarily Time-Barred ............................... 19 IX. CONCLUSION ..................................................................................................... 19 Case 5:17-cv-00453-AG-DTB Document 8 Filed 05/18/17 Page 3 of 11 Page ID #:37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 70000.3045/10723639.1 iii Case No. 5:17-cv-00453-AG-DTB Table of Authorities TABLE OF AUTHORITIES Page(s) Cases Alperin v. Vatican Bank, 410 F.3d 532 (9th Cir. 2005) ........................................................................................3 Am. Master Lease LLC v. Idanta Partners, Ltd., 225 Cal.App.4th 1451 (2014) .......................................................................................9 Arikat v. JP Morgan Chase, 430 F.Supp.2d 1013 (N.D. Cal. 2006) .......................................................................15 Ashcroft v. Iqbal, 556 U.S. 662, 556 U.S. 662 ........................................................................................13 Bae v. T.D. Serv. Co., 245 Cal.App.4th 89 (2016) .........................................................................................10 Bell Atlantic Co. v. Twombly, 550 U.S. 544 (2007) ................................................................................................. 3, 4 Branch v. Tunnell, 14 F.3d 449 (9th Cir. 1994) ..........................................................................................4 Bryant v. Hobart, 44 Cal.App. 315 (1919) ..............................................................................................16 Castro v. Geil, 110 Cal. 292 (1985).....................................................................................................12 In re Coastal Plains, 179 F.3d 197 (5th Cir.1999), cert. denied, 528 U.S. 1117 (2000) .............................7 Conley v. Gibson, 355 U.S. 41 (1957) ........................................................................................................4 Cox v. First Nat. Bank of Cincinnati, 751 F.2d 815 (6th Cir. 1985) ......................................................................................12 Cusano v. Klein, 264 F.3d 936 (9th Cir. 2001) ........................................................................................7 Case 5:17-cv-00453-AG-DTB Document 8 Filed 05/18/17 Page 4 of 11 Page ID #:38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 70000.3045/10723639.1 iv Case No. 5:17-cv-00453-AG-DTB Table of Authorities Derakhshan v. Mortg. Electronic Registration Systems, 2009 WL 3346780 (C.D.Cal. 2009)...........................................................................19 Diessner v. Mortg. Electronic Reg. Systems, 618 F.Supp.2d 1184 (D. Ariz. May 18, 2009)...........................................................15 Edwards v. Marin Park, Inc., 356 F.3d 1058 (9th Cir. 2004) ....................................................................................17 Elk Grove Unified School Dist. v. Newdow, 542 US 1 (2004) ............................................................................................................5 Ephraim v. Metro. Trust Co. of Cal., 28 Cal.2d 824 (1946) ..................................................................................................13 Evans v. Nationstar Mortg., LLC, 2015 WL 6756255 (E.D.Cal. 2015) ...........................................................................14 Fleming v. Kagan, 189 Cal.App.2d 791 (1961) ................................................................................. 16, 17 Fuller v. First Franklin Fin. Corp., 216 Cal.App.4th 955 (2013) .........................................................................................9 Greene v. Wells Fargo Home Mortg., 2013 WL 4520941 (N.D. Cal. 2013) ...........................................................................6 Gzell v. Novastar Mortg., Inc., 2010 WL 3293537 (E.D.Cal. 2010) ...........................................................................10 Hamilton v. State Farm Fire & Casualty Co., 270 F.3d 778 (9th Cir. 2001) ................................................................................... 7, 8 Izenberg v. ETS Services, LLC, 589 F.Supp.2d 1193 (C.D. Cal. 2008) .......................................................................15 Jenkins v. JP Morgan Chase Bank, N.A., 216 Cal.App.4th 497 (2013) .......................................................................................16 Jones v. Community Redev. Agency, 733 F.2d 646 (9th Cir.1984) .......................................................................................13 Knievel v. ESPN, 393 F.3d 1068 (9th Cir. 2005) ......................................................................................4 Case 5:17-cv-00453-AG-DTB Document 8 Filed 05/18/17 Page 5 of 11 Page ID #:39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 70000.3045/10723639.1 v Case No. 5:17-cv-00453-AG-DTB Table of Authorities Kourtis v. Cameron, 419 F.3d 989 (9th Cir. 2005) ........................................................................................4 Lane v. Vitek Real Estate Ind. Group, 713 F.Supp.2d 1092 (E.D. Cal. 2010)................................................................... 6, 10 Lexmark Int'l, Inc. v. Static Control Components, Inc., 134 S.Ct. 1377 (2014) ...................................................................................................5 Lingad v. Indymac Fed. Bank, 682 F.Supp.2d 1142 (E.D. Cal. 2010)........................................................................15 Living Designs, Inc. v. E.I. Dupont de Nemours and Co., 431 F.3d 353 (9th Cir.2005) .......................................................................................19 Lona v. Citibank, N.A., 202 Cal.App.4th 89 (2011) .................................................................................. 15, 16 In re Lopez, 283 B.R. 22 (B.A.P. 9th Cir. 2002)..............................................................................6 Lujan v. Defenders of Wildlife, 504 US 555 (1992) ........................................................................................................5 Max v. Seterus, Inc., 2013 WL 708876 (E.D.Cal. 2013) .............................................................................14 Mir v. Little Co. of Mary Hosp., 844 F.2d 646 (9th Cir. 1988) ........................................................................................4 Moeller v. Lien, 25 Cal.App.4th 822 (1994) .................................................................................. 15, 16 Mulato v. WMC Mortg. Corp., 2010 WL 1532276 (N.D.Cal. 2010)...........................................................................10 Norris v. Bayview Loan Serv., LLC, 2016 WL 337381 (C.D. Cal. 2016)............................................................................14 Nymark v. Heart Fed. Savings & Loan Assn., 231 Cal.App.3d 1089 (1991), (citations omitted) .......................................................9 Ohlendorf v. Am. Brokers Conduit, 2012 WL 718682 (E.D.Cal. 2012) .............................................................................18 Case 5:17-cv-00453-AG-DTB Document 8 Filed 05/18/17 Page 6 of 11 Page ID #:40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 70000.3045/10723639.1 vi Case No. 5:17-cv-00453-AG-DTB Table of Authorities Oki Semiconductor Co. v. Wells Fargo Bank, N.A., 298 F.3d 768 (9th Cir. 2002) ......................................................................................18 Oneida Motor Freight, Inc. v. United Jersey Bank, 848 F.2d 414 (3rd Cir.), cert. denied, 488 U.S. 967 (1988) .......................................7 Parrino v. FHP, Inc., 146 F.3d 699 (9th Cir. 1998) ........................................................................................4 Payless Wholesale Distributors, Inc. v. Alberto Culver (P.R.) Inc., 989 F.2d 570 (1st Cir.), cert. denied, 510 U.S. 931 (1993) ........................................7 Petersen v. Bank of America, 232 Cal.App.4th 238 (2014) .........................................................................................2 Pierce v. Lyman, 1 Cal.App.4th 1093 (1991) .................................................................................... 8, 11 Pincay v. Andrews, 238 F.3d 1106 (9th Cir.2001) .....................................................................................19 Qatar Nat’l Navigation & Transp. Co., Ltd. v. Citibank, N.A., 1992 WL 276565 (S.D.N.Y. 1992) ............................................................................18 Ragland v. U.S. Bank Nat. Assn., 209 Cal.App.4th 182 (2012) .........................................................................................9 Roberts v. Lomanto, 112 Cal.App.4th 1553 (2003) ................................................................................ 8, 11 Saterbak v. Nat'l Default Serv. Corp., 2015 WL 5794560 (S.D. Cal. 2015) ..........................................................................14 Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393 (9th Cir.2004) .....................................................................................17 Sierra-Bay Fed. Land Bank Assn. v. Super. Ct., 227 Cal.App.3d 318 (1991) ..........................................................................................9 In re Silicon Graphics Inc. Sec. Litig., 183 F.3d 970 (9th Cir. 1999) ........................................................................................4 Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) ..................................................................................................5 Case 5:17-cv-00453-AG-DTB Document 8 Filed 05/18/17 Page 7 of 11 Page ID #:41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 70000.3045/10723639.1 vii Case No. 5:17-cv-00453-AG-DTB Table of Authorities Stewart v. J.P. Morgan Chase Bank, N.A., 2016 WL 4618901 (S.D.Cal. 2016) ...........................................................................16 Swartz v. KPMG LLP, 476 F.3d 756 (9th Cir. 2007) ......................................................................................17 Switchboard Co. v. Westinghouse Elec. Corp., 789 F.2d 705 (9th Cir.1986) .........................................................................................6 Tilley v. Ampro Mortg., 2011 WL 5921415 (E.D.Cal. 2011) ...........................................................................19 In re Verifone Sec. Litig., 11 F.3d 865 (9th Cir. 1993) ..........................................................................................3 Vincent v. Wells Fargo Bank, 2009 WL 4039681 (E.D.Cal., 2009) ..........................................................................10 Wagner v. Benson, 101 Cal.App.3d 27 (1980) ..........................................................................................10 Wooten v. Countrywide Home Loans Inc., 2012 WL 1641017 (E.D.Cal. 2012), aff'd, 649 Fed.Appx. 394 (9th Cir. 2016) .....................................................................................................................18 Yamaguchi v. US Dept. of Air Force, 109 F.3d 1475 (9th Cir.1997) .....................................................................................13 Yamamoto v. Bank of New York, 329 F.3d 1167 (9th Cir. 2003) ....................................................................................12 Zakaessian v. Zakaessian, 70 Cal.App.2d 721 (1945.) .........................................................................................12 Zendejas v. GMAC Wholesale Mortg. Corp. (E.D.Cal. 2010) 2010 WL 2629899 ...........................................................................11 Statutes 11 U.S.C. § and § 554(d)....................................................................................................6 12 U.S.C. §2605(e)(1)(A), 2605(e)(1)(A).......................................................................14 15 U.S.C. § 1635...............................................................................................................12 Case 5:17-cv-00453-AG-DTB Document 8 Filed 05/18/17 Page 8 of 11 Page ID #:42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 70000.3045/10723639.1 viii Case No. 5:17-cv-00453-AG-DTB Table of Authorities 18 U.S.C. § 1961(1), (5)...................................................................................................17 26 USC 7701(a)(1)Person[s]..............................................................................................1 Cal. Civ. Code § 2924, et seq...........................................................................................16 Cal. Civil Code section 1216 .................................................................................... 15, 16 Federal Debt Collection Practices Act ("FDCPA")........................................................15 Racketeer Influenced and Corrupt Organizations Act ("RICO") .....................17, 18, 19 Real Estate Settlement Procedures Act ("RESPA") .......................................................14 Rosenthal Fair Debt Collection Practices Act ("RFDCPA") .........................................15 Truth in Lending Act ("TILA") .................................................................................. 1, 12 Other Authorities Federal Rule of Civil Procedure 8(a)..............................................................2, 11, 15, 17 Federal Rule of Civil Procedure 8(a)(1)................................................................... 10, 11 http://www.canlii.org/en/ab/abqb/doc/2012/2012abqb571/2012abqb571. html.................................................................................................................................1 Case 5:17-cv-00453-AG-DTB Document 8 Filed 05/18/17 Page 9 of 11 Page ID #:43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 70000.3045/10723639.1 ix Case No. 5:17-cv-00453-AG-DTB Notice of Motion and Motion to Dismiss Plaintiff’s Complaint TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on June 20, 2017, at 10:00 a.m., or as soon thereafter as the matter may be heard before the Honorable Andrew Guilford in Courtroom 10D of the U.S. District Court for the Central District of California, Ronald Reagan Federal Building, located at 411 West Fourth Street, Santa Ana, CA, 92701, Defendants BANK OF AMERICA, N.A., as successor by April 27, 2009 de jure merger with Countrywide Bank, FSB (erroneously sued as Countrywide Bank FSB) (hereinafter, “BANA”); COUNTRYWIDE HOME LOANS, INC. (hereinafter, “Countrywide”); RECONTRUST COMPANY, N.A. (erroneously sued as Recon Trust Company, N.A.) (hereinafter, “ReconTrust”); and MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. (hereinafter, “MERS”) (collectively, “Defendants”) will, and hereby do, jointly and severally move the Court to dismiss this action pursuant to Federal Rule of Civil Procedure 12(b)(6). As set forth more fully in the accompanying Memorandum of Points and Authorities (the “Memorandum”), this motion is made on the ground that the Complaint (“Complaint” or “Compl.”) filed by plaintiffs ROSALYN OMOYELE (“Omoyele”) and JACQUELYN WILLIAMS (“Williams”) (collectively, “Plaintiffs”) fails to state a claim against Defendants upon which relief can be granted. This motion is based on the attached Memorandum, the request for judicial notice filed concurrently herewith, the pleadings and papers on file herein, and upon such oral and documentary evidence as may be presented by the parties at the hearing. LOCAL CIVIL RULE 7-3 CERTIFICATION This motion is made following the extensive efforts of counsel to meet and confer, pursuant to Local Rule 7-3 and the Court’s Standing Order, which were all without success. On May 5, 2017, counsel for Defendants attempted to call Plaintiffs at the phone number listed on the Complaint on two separate occasions, but was advised on both occasions that Plaintiffs could not be reached at that phone number. Counsel for Case 5:17-cv-00453-AG-DTB Document 8 Filed 05/18/17 Page 10 of 11 Page ID #:44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 70000.3045/10723639.1 x Case No. 5:17-cv-00453-AG-DTB Notice of Motion and Motion to Dismiss Plaintiff’s Complaint Defendants then performed a public records search, and attempted to contact Plaintiffs at the various telephone numbers ascertained through this search. Again, these efforts were unsuccessful. On May 5, 2017, counsel for Defendants additionally sent a correspondence to Plaintiffs via overnight delivery at the address listed on the Complaint, requesting Plaintiffs provide the correct contact information, and contact counsel for Defendants at their earliest convenience. To date, Plaintiffs have not yet contacted counsel for Defendants. Thus, despite the extensive efforts of counsel for Defendants to comply with Local Rule 7-3, an informal resolution could not be reached prior to filing the instant motion. DATED: May 18, 2017 SEVERSON & WERSON A Professional Corporation By: /s/ Stephen D. Britt Stephen D. Britt Attorneys for Defendants BANK OF AMERICA, N.A., as successor by April 27, 2009 de jure merger with Countrywide Bank, FSB (erroneously sued as Countrywide Bank FSB); COUNTRYWIDE HOME LOANS, INC.; RECONTRUST COMPANY, N.A. (erroneously sued as Recon Trust Company, N.A.; and MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. Case 5:17-cv-00453-AG-DTB Document 8 Filed 05/18/17 Page 11 of 11 Page ID #:45 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 70000.3045/10723639.1 1 Case No. 5:17-cv-00453-AG-DTB Memorandum of Points and Authorities MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiffs-who bizarrely style themselves in this action as “26 USC 7701(a)(1)Person[s]” and “agent[s] of the United States agency, the Social Security Administration” (because they were provided with Social Security numbers)-filed this foreclosure avoidance action against plaintiff Rosalyn Omoyele’s (hereinafter, “Omoyele”) mortgage lender (Countrywide), its successor through merger (BANA), the original trustee listed in the deed of trust (ReconTrust), the beneficiary listed in the deed of trust (MERS) (collectively, “Defendants”), and a slew of other defendants. Plaintiffs’ bizarre allegations and conclusory claims are typical of those espoused by followers of the sovereign citizen movement1 or similar debt-elimination schemes. Their contention that they can unilaterally revoke the power of sale clause in the underlying deed of trust, however, is without any factual or legal support. Plaintiffs’ demand to rescind the loan under the federal Truth In Lending Act (“TILA”) came almost a decade too late, and Omoyele cannot rescind or cancel her loan contracts without tendering payment in a form that is acceptable to her creditors. To make matters worse, Omoyele lacks standing and is judicially estopped from asserting her claims against Defendants due to her previous bankruptcy case filings. And, plaintiff Jacqueline Williams (hereinafter, “Williams”) omits any factual allegations related to her involvement with the loan, deed of trust, subject property, or her perceived injury caused by Defendants. Williams thus entirely fails to establish how she has standing to even bring these claims against Defendants. Even assuming Plaintiffs had standing to assert their clams, arguendo, the 1 For an extensive explanation of the legal theories reflected in Plaintiffs’ Complaint, which one Canadian court dubbed “Money for Nothing Schemes,” see Meads v. Meads, 2012 ABQB 571 (Can. Sept. 18, 2012), available at: http://www.canlii.org/en/ab/abqb/doc/2012/2012abqb571/2012abqb571.html. See also, Levin & Mitchell, A Law unto Themselves: The Ideology of the Common Law Court Movement, 44 S. D. L. Rev. 9 (1999). Case 5:17-cv-00453-AG-DTB Document 8-1 Filed 05/18/17 Page 1 of 20 Page ID #:46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 70000.3045/10723639.1 2 Case No. 5:17-cv-00453-AG-DTB Memorandum of Points and Authorities majority of claims listed in the Complaint caption2 are not even recognized causes of action in California. Instead, Plaintiffs assert a series of “demands” from various defendants. Plaintiffs fail to plead any facts to support the coherent causes of action listed in the Complaint caption, and it is entirely unclear which of these claims are asserted against Defendants (if any). A few things are clear from Plaintiffs’ cryptic pleadings, however: (i) all of Plaintiffs’ claims are barred by the applicable statutes of limitations; (ii) none of Plaintiffs’ claims are sufficiently pled as a matter of law; and (iii) Plaintiffs are barred from obtaining their requested relief as a result of their failure to plead tender of the outstanding loan obligation. Because Plaintiffs cannot cure the fatal deficiencies plaguing their claims to assert viable causes of action, Defendants respectfully request the Court dismiss each of Plaintiffs’ claims asserted against them, and with prejudice. II. STATEMENT OF THE RELEVANT FACTS Omoyele obtained title to the subject property located at 32861 Sussex Stakes St., Menifee, CA 92584 (the “Property”) through a Grant Deed recorded on September 21, 2007. Request for Judicial Notice (“RJN”), Ex. 1. To purchase the Property, Omoyele obtained a loan from Countrywide Bank, FSB (“Countrywide”) in the amount of $393,543 (“Loan”), secured by a deed of trust (“Trust Deed”) recorded against the Property on September 21, 2007. RJN, Ex. 2. The beneficiary listed in the DOT was MERS, the trustee was ReconTrust. Countrywide was subsequently absorbed by BANA.3 On or about August 1, 2011, MERS assigned the DOT to BANA. RJN, Ex. 3. A Corporation Assignment of Deed of Trust reflecting this assignment was recorded on August 3, 2011. RJN, Ex. 3. On or about July 1, 2013, BANA assigned the DOT 2 It should be noted that of the six causes of action listed in the Complaint caption, only one is pled in the body of the Complaint, and it is entirely unclear which defendants that claim is asserted against. As a result, all of Plaintiffs’ causes of action violate Federal Rule of Civil Procedure 8(a). 3 See, Petersen v. Bank of America, 232 Cal.App.4th 238, 243 (2014). Case 5:17-cv-00453-AG-DTB Document 8-1 Filed 05/18/17 Page 2 of 20 Page ID #:47 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 70000.3045/10723639.1 3 Case No. 5:17-cv-00453-AG-DTB Memorandum of Points and Authorities to Green Tree Servicing, LLC (“Green Tree”). RJN, Ex. 4. An Assignment of Deed of Trust reflecting this assignment was recorded on July 31, 2013. RJN, Ex. 4. Servicing of the Loan was transferred to Green Tree on an unspecified date around this time period. See, e.g., Compl., ¶17. On February 28, 2014, Green Tree recorded a Substitution of Trustee, substituting Northwest Trustee Services, Inc. (“NTSI”) as the DOT trustee of record. RJN, Ex. 5; Compl., ¶17. NTSI then recorded a Notice of Default and Election to Sell Under Deed of Trust (“NOD”) on February 28, 2014. RJN, Ex. 6. NTSI recorded Notices of Trustee’s Sale against the Property on June 30, 2014 and August 25, 2016. RJN, Exs. 7, 8. On September 20, 2016, Omoyele filed a Chapter 7 bankruptcy petition in the United States Bankruptcy Court, Central District of California, Case No. 2:16-bk- 22510-BB (the “BK Case”). RJN, Ex. 9. In Omoyele’s bankruptcy schedules, she admitted that the DOT is secured against the Property by “Ditech,” with an outstanding balance of $514,176.00. RJN, Ex. 9, at p. 20. Omoyele also admitted that she did not have any “contingent and unliquidated claims of [any] nature, including counterclaims” and “rights to set off claims.” RJN, Ex. 9, at p. 15, ¶33. On January 3, 2017, Omoyele obtained an order discharging her BK Case. RJN, Ex. 10. On January 10, 2017, Omoyele’s BK Case was closed. RJN, Ex. 11-Court Docket. III. LEGAL STANDARD On a motion to dismiss, the Court accepts as true the facts properly pleaded in the complaint, but not conclusions of law. Alperin v. Vatican Bank, 410 F.3d 532, 541 (9th Cir. 2005); In re Verifone Sec. Litig., 11 F.3d 865, 868 (9th Cir. 1993). To avoid dismissal, a complaint must include “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Co. v. Twombly, 550 U.S. 544, 555 (2007). In order to state a plausible claim, plaintiffs must plead sufficient facts “to provide the ‘grounds’ of their ‘entitle[ment] to relief,’ [which] requires more than labels and conclusions, and [for which] a formulaic recitation of the elements of a cause of Case 5:17-cv-00453-AG-DTB Document 8-1 Filed 05/18/17 Page 3 of 20 Page ID #:48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 70000.3045/10723639.1 4 Case No. 5:17-cv-00453-AG-DTB Memorandum of Points and Authorities action will not do.” Id. at 555 (citation omitted). A complaint cannot simply “le[ave] open the possibility that a plaintiff might later establish some ‘set of undisclosed facts’ to support recovery.” Id. at 561 (citation omitted). Rather, the facts set forth in the complaint must be sufficient to “nudge the [ ] claims across the line from conceivable to plausible.” Id. at 570. Furthermore, “it is proper for the district court to ‘take judicial notice of matters of public record outside the pleadings’ and consider them for purposes of the motion to dismiss.” Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988); accord: Kourtis v. Cameron, 419 F.3d 989, 994 n.2 (9th Cir. 2005). Similarly, under the “incorporation by reference doctrine,” the Court may consider documents “whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the [plaintiff’s] pleading.” In re Silicon Graphics Inc. Sec. Litig., 183 F.3d 970, 986 (9th Cir. 1999); see also Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). The Ninth Circuit has “extended the ‘incorporation by reference’ doctrine to situations in which the plaintiff’s claim depends on the contents of a document, the defendant attaches the document to its motion to dismiss, and the parties do not dispute the authenticity of the document, even though the plaintiff does not explicitly allege the contents of that document in the complaint.” Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005); see also Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998). The Court will dismiss a claim pursuant to Rule 12(b)(6) if the complaint, when construed in the light most favorable to plaintiff, fails to plead sufficiently all required elements of a claim. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). A dismissal may be based on either: (1) failure to plead a cognizable legal theory; or (2) an absence of sufficient facts alleged under a cognizable legal theory. Shroyer, supra, 622 F.3d at 1041. /// /// Case 5:17-cv-00453-AG-DTB Document 8-1 Filed 05/18/17 Page 4 of 20 Page ID #:49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 70000.3045/10723639.1 5 Case No. 5:17-cv-00453-AG-DTB Memorandum of Points and Authorities IV. WILLIAMS FAILS TO ESTABLISH ARTICLE III STANDING Standing is a critically important jurisdictional limitation to any federal suit. It is “an essential and unchanging part of the case-or-controversy requirement of Article III.” Lujan v. Defenders of Wildlife, 504 US 555, 560 (1992). Thus, when plaintiffs file their suits in federal court, they must plead each element of standing with the manner and degree of evidence required at the particular stage of the litigation. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547-48 (2016); Lujan, 504 US at 561. To establish standing, a “plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision” to have federal standing. Id. at 1547; see also, Lujuan, 504 US at 560-61. The claims must relate to plaintiff's own legal rights and interests, rather than the legal rights or interests of third parties. Elk Grove Unified School Dist. v. Newdow, 542 US 1, 14 (2004) (abrogated on other grounds by Lexmark Int'l, Inc. v. Static Control Components, Inc., 134 S.Ct. 1377, 1386-1387 (2014).) Here, the Complaint makes no attempt to establish plaintiff Williams’ standing to sue Defendants. See, Compl., generally. Williams was not a party to the Loan or Trust Deed. See, RJN, Ex. 2; Compl., ¶5. Nor is Property vested in Williams’ name. See, RJN, Ex. 1. The Complaint asserts in a conclusory manner that she is an “administrator” of an unspecified entity (Compl., at p. 2), but admits that Omoyele is the “exclusive bearer and administrator of the Plaintiff.” Compl., ¶3. The Complaint also asserts a vague allegation that Williams possesses a “prescriptive right and interest […] concerning the asset,” but fails to plead any facts establishing what this alleged interest is. Compl., ¶32. Since Plaintiffs were required to plead facts establishing each of the elements of standing-but fail to plead any basis for Williams’ standing-Williams’ claims against Defendants should be dismissed on these grounds alone. Spokeo, Inc., 136 S. Ct. at 1547-48; Lujan, 504 US at 561. /// Case 5:17-cv-00453-AG-DTB Document 8-1 Filed 05/18/17 Page 5 of 20 Page ID #:50 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 70000.3045/10723639.1 6 Case No. 5:17-cv-00453-AG-DTB Memorandum of Points and Authorities V. OMOYELE’S CLAIMS ARE BARRED DUE TO THE BK CASE As an initial matter, Omoyele’s claims against Defendants are barred as a result of her filings in the BK Case, as Omoyele lacks standing to assert her claims, and is judicially estopped from doing so. A. Omoyele Lacks Standing To Assert Her Claims “Upon a declaration of bankruptcy, all petitioner's property becomes the property of the bankruptcy estate.” Lane v. Vitek Real Estate Ind. Group, 713 F.Supp.2d 1092, 1097 (E.D. Cal. 2010), citing 11 U.S.C. § 541(a). The bankruptcy estate thus “includes ‘all legal or equitable interests of the debtor in property,’ which has been interpreted to include causes of action.” (citations omitted) Id. (citing Switchboard Co. v. Westinghouse Elec. Corp., 789 F.2d 705, 707 (9th Cir.1986).) Omoyele’s claims “became property of the bankruptcy estate as of the Petition Date, even though [the claims were] not listed in the schedules,” since “property that is neither abandoned nor administered remains property of the estate even after the case is closed.” In re Lopez, 283 B.R. 22, 28 (B.A.P. 9th Cir. 2002), citing 11 U.S.C. § and § 554(d). “Accordingly, a bankruptcy petitioner loses standing for any causes of action even though they were not listed in the schedules.” Greene v. Wells Fargo Home Mortg., 2013 WL 4520941, at *2 (N.D. Cal. 2013). When Omoyele filed her BK Case petition, all of her accrued claims against Defendants became the property of the bankruptcy estate, regardless of their omission from the accompanying schedules. Lane, 713 F.Supp.2d at 1097; Switchboard Co., 789 F.2d at 707; In re Lopez, 283 B.R. at 28. At that point, Omoyele “los[t] standing” to assert “any causes of action even though they were not listed in [her bankruptcy] schedules.” Greene, 2013 WL 4520941, at *2. “In other words, [Omoyele’s claims] belong to the estate, not to [Omoyele],” and the Court should dismiss these claims without leave to amend due to Omoyele’s lack of standing. In re Lopez, 283 B.R. at 28; 11 U.S.C. § and § 554(d). /// Case 5:17-cv-00453-AG-DTB Document 8-1 Filed 05/18/17 Page 6 of 20 Page ID #:51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 70000.3045/10723639.1 7 Case No. 5:17-cv-00453-AG-DTB Memorandum of Points and Authorities B. Omoyele Is Judicially Estopped From Bringing Her Claims “Judicial estoppel is an equitable doctrine that precludes a party from gaining an advantage by asserting one position, and then later seeking an advantage by taking a clearly inconsistent position.” (citations omitted) Hamilton v. State Farm Fire & Casualty Co., 270 F.3d 778, 782 (9th Cir. 2001). Its application “is not limited to bar the assertion of inconsistent positions in the same litigation, but is also appropriate to bar litigants from making incompatible statements in two different cases. Id. at 783. In filing bankruptcy schedules, a debtor must take affirmative steps to make sure his schedules are accurate and provide interested parties-such as the trustee and creditors-with notice. “[T]he debtor has a duty to prepare schedules carefully, completely, and accurately.” Cusano v. Klein, 264 F.3d 936, 946 (9th Cir. 2001) (quoting In re Mohring, 142 B.R. 389, 394 (Bankr.E.D.Cal. 1992).) While there are “no bright-line rules for how much itemization and specificity is required,” a debtor still must be “as particular as is reasonable under the circumstances.” Cusano, 264 F.3d at 946. Thus, “[i]n the bankruptcy context, a party is judicially estopped from asserting causes of action not raised in a reorganization plan or otherwise mentioned in the debtor’s schedules or disclosure statements.” Hamilton, 270 F.3d at 783.4 In Hamilton, the Ninth Circuit held that a plaintiff was judicially estopped from pursuing post-discharge claims and stated courts are to consider three factors in deciding whether to apply the doctrine: (1) the party’s later position must be “clearly inconsistent” with its earlier position; (2) “whether the party has succeeded in persuading a court to accept that party’s earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create ‘the perception that either 4 See also, In re Coastal Plains, 179 F.3d 197, 208 (5th Cir.1999), cert. denied, 528 U.S. 1117 (2000) (holding that a debtor is barred from bringing claims not disclosed in its bankruptcy schedules); Payless Wholesale Distributors, Inc. v. Alberto Culver (P.R.) Inc., 989 F.2d 570, 572 (1st Cir.), cert. denied, 510 U.S. 931 (1993) (debtor who obtained relief on the representation that no claims existed cannot resurrect such claims and obtain relief on the opposite basis); Oneida Motor Freight, Inc. v. United Jersey Bank, 848 F.2d 414, 419 (3rd Cir.), cert. denied, 488 U.S. 967 (1988) (debtor's failure to list potential claims against a creditor “worked in opposition to preservation of the integrity of the system which the doctrine of judicial estoppel seeks to protect,” and debtor is estopped by reason of such failure to disclose). Case 5:17-cv-00453-AG-DTB Document 8-1 Filed 05/18/17 Page 7 of 20 Page ID #:52 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 70000.3045/10723639.1 8 Case No. 5:17-cv-00453-AG-DTB Memorandum of Points and Authorities the first or the second court was misled;” and (3) whether the party would derive an unfair advantage or impose an unfair detriment on an opposing party. Id. at 782-783. Here, all three factors work in favor of applying the doctrine. The first element is met because Omoyele’s position is clearly inconsistent from her position in the BK Case. Omoyele’s schedules admit she has no claims against Defendants. See, RJN, Ex. 9, at p. 15. After obtaining a discharge, Omoyele now attempts to utilize those claims for her own benefit by asserting them against Defendants in this action. Moreover, Omoyele admits the full amount of the secured interest against the Property. RJN, Ex. 9, at p. 20. Omoyele now requests a judicial declaration that the interest is no longer secured against the Property. Compl., ¶¶5- 28. Omoyele’s positions in the BK Case and the instant action are therefore clearly inconsistent. The second element is met because Omoyele successfully persuaded the bankruptcy court to accept her earlier position by obtaining a discharge. See, RJN Ex. 10. Finally, the third element is met because Omoyele is clearly attempting to derive an unfair advantage against defendants by attempting to utilize assets that were concealed from the bankruptcy trustee after she obtained a discharge. Accordingly, Omoyele is judicially estopped from bringing her claims against Defendants now. VI. PLAINTIFFS CANNOT ESTABLISH A BREACH OF FIDUCIARY DUTY CLAIM AGAINST DEFENDANTS Plaintiffs’ first cause of action (against unspecified defendants) is for breach of fiduciary duty. Compl., ¶¶1-10. The elements of a breach of fiduciary duty claim are (1) existence of a fiduciary relationship; (2) breach of the fiduciary duty; and (3) damage proximately caused by that breach. Roberts v. Lomanto, 112 Cal.App.4th 1553, 1562 (2003). “The absence of any one of these elements is fatal to the cause of action.” Pierce v. Lyman, 1 Cal.App.4th 1093, 1101 (1991). While unclear from the cryptic allegations contained in the Complaint, Plaintiffs appear to allege that codefendants First American Title Company, NHS (“FATCO”) and Richmond American Homes of California (“RAHOC”) were Case 5:17-cv-00453-AG-DTB Document 8-1 Filed 05/18/17 Page 8 of 20 Page ID #:53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 70000.3045/10723639.1 9 Case No. 5:17-cv-00453-AG-DTB Memorandum of Points and Authorities required to “memorialize and deliver to Plaintiff 1” a “Certificate of Satisfaction” that “reflect[ed] the full [Loan] amount of indebtedness was entered and satisfied to the loan originator on the same date the loan funded” in September of 2007. Compl., ¶¶5, 7, 9. Plaintiffs assert that because this did not occur, FATCO and RAHOC breached their fiduciary duty to Plaintiffs. Compl., ¶13. Plaintiffs’ first cause of action fails against Defendants for a myriad of reasons, and is incapable of being cured through amendment. A. Plaintiffs’ Claim Is Time-Barred The statute of limitations for breach of fiduciary duty in California is three years for fraudulent breach, or four years for a non-fraudulent breach. See, e.g, Am. Master Lease LLC v. Idanta Partners, Ltd., 225 Cal.App.4th 1451, 1479 (2014); Fuller v. First Franklin Fin. Corp., 216 Cal.App.4th 955, 963 (2013). Here, Plaintiffs base their claim on allegations that a fiduciary duty was breached in or around September of 2007. Compl., ¶¶5, 11, 13; RJN, Exs. 1, 2. As such, it was necessarily barred by the statute of limitations no later than September of 2011. B. Plaintiffs Cannot Establish A Fiduciary Duty Owed By Defendants Plaintiffs’ breach of fiduciary duty claim additionally fails because they are unable to establish that any fiduciary duty existed between themselves and Defendants. Indeed, it is well-settled in California that a lending institution owes no fiduciary duty to its borrower: “The relationship between a lending institution and its borrower-client is not fiduciary in nature. A commercial lender is entitled to pursue its own economic interests in a loan transaction. This right is inconsistent with the obligations of a fiduciary which require that the fiduciary knowingly agree to subordinate its interests to act on behalf of and for the benefit of another.” Nymark v. Heart Fed. Savings & Loan Assn., 231 Cal.App.3d 1089, 1093 (1991) , (citations omitted); see also Ragland v. U.S. Bank Nat. Assn., 209 Cal.App.4th 182, 206 (2012) (“No fiduciary duty exists between a borrower and lender in an arm's length transaction”); Sierra-Bay Fed. Land Bank Assn. v. Super. Ct., 227 Cal.App.3d Case 5:17-cv-00453-AG-DTB Document 8-1 Filed 05/18/17 Page 9 of 20 Page ID #:54 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 70000.3045/10723639.1 10 Case No. 5:17-cv-00453-AG-DTB Memorandum of Points and Authorities 318, 334 (1991); Wagner v. Benson, 101 Cal.App.3d 27, 35 (1980); Vincent v. Wells Fargo Bank, 2009 WL 4039681 *2 (E.D.Cal., 2009). As a result, Plaintiffs cannot establish any fiduciary duty owed by Omoyele’s lender (Countrywide) or its successor in interest (BANA). Additionally, MERS does not owe a duty to borrowers during loan origination, because they have no “confidential or trust relationship” with MERS. See, e.g., Gzell v. Novastar Mortg., Inc., 2010 WL 3293537, at * 10 (E.D.Cal. 2010) (finding no actionable duty to impose fiduciary liability on MERS); Lane v. Vitek Real Estate Indus. Grp., 713 F.Supp.2d 1092, 1104 (E.D.Cal. 2010) (dismissing breach of fiduciary duty claim against MERS, because plaintiff failed to plead facts to “override the presumption that a lender owes no fiduciary duty to its borrowers”); Mulato v. WMC Mortg. Corp., 2010 WL 1532276, at *2 (N.D.Cal. 2010) (dismissing claim where plaintiff failed to plead facts to show that MERS exceeded its traditional role involved with lender of money to support a duty). As such, Plaintiffs cannot establish that MERS owed them a fiduciary duty. With respect to ReconTrust, under California’s statutory scheme, “[t]he trustee [of a deed of trust] is not a true trustee with fiduciary duties, but rather a common agent for [pertinent parties].... The scope and nature of the trustee's duties are exclusively defined by the deed of trust and the governing statutes. No other common law duties exist.” Bae v. T.D. Serv. Co., 245 Cal.App.4th 89, 102 (2016), quoting Kachlon v. Markowitz, 168 Cal.App.4th 316, 335 (2008). As such, Plaintiffs cannot establish a fiduciary duty owed by ReconTrust either. C. Plaintiffs Fail To Plead A Breach Of Fiduciary Duty By Defendants Plaintiffs’ first cause of action violates Federal Rule of Civil Procedure 8(a)(1), as it does not provide a “short and plain” statement of the facts related to this claim, or even which of the numerous defendants this claim is asserted against. Compl., ¶¶1-13. While it is unclear from Plaintiffs’ muddled allegations whether this cause of action is even asserted against Defendants-if it is-they fail to plead facts exhibiting Case 5:17-cv-00453-AG-DTB Document 8-1 Filed 05/18/17 Page 10 of 20 Page ID #:55 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 70000.3045/10723639.1 11 Case No. 5:17-cv-00453-AG-DTB Memorandum of Points and Authorities that Defendants breached any (non-existent) fiduciary duty owed to them, or their resulting injury. Id. As a result, their cause of action fails as a matter of law on these grounds as well. Roberts, 112 Cal.App.4th at 1562; Pierce, 1 Cal.App.4th at 1101. Because Plaintiffs cannot establish a fiduciary duty owed by Defendants, fail to plead any breach of duty by Defendants or resulting injury, and their claim is necessarily time-barred, the Court should dismiss Plaintiffs’ first cause of action against Defendants with prejudice. VII. PLAINTIFFS’ EQUITABLE CLAIMS FAIL AS A MATTER OF LAW Plaintiffs next assert four equitable claims against unspecified defendants for: (i) “satisfaction of lien,” (ii) “demand for validation of debt,” (iii) “cease and desist notice to include cancellation of debt collection activity,” and (iv) “rescission and revocation of power of attorney.” Like their first cause of action, each of Plaintiffs’ equitable claims violate Federal Rule of Civil Procedure 8(a)(1), and it is unclear whether this claim is even asserted against Defendants. Moreover, none of these claims appear to be recognized causes of action in the State of California, and appear to be based upon time-barred and debunked legal theories. A. Plaintiffs’ “Satisfaction Of The Lien” Claim Fails The Complaint caption page lists a second cause of action which is entirely omitted from the body of the Complaint (in violation of FRCP 8(a)). See, Compl., caption, generally. This claim apparently requests the Court to issue an order finding that the DOT has been satisfied, and should therefore be cancelled. See, Compl., ¶¶20-22. To plead a viable cancellation of instruments claim,5 Plaintiffs must plead “that [they] will be injured or prejudiced if the instrument[s] [are] not cancelled, and that such instrument[s] [are] void or voidable.” (Zendejas v. GMAC Wholesale Mortg. Corp. (E.D.Cal. 2010) 2010 WL 2629899, at *7, citing Civ. Code §3412.) 5 Defendants were unable to locate any relevant authorities which addressed causes of action asserted for “satisfaction of instruments.” Defendants will thus operate under the presumption that Plaintiffs intended to assert a claim for cancellation of the DOT. Case 5:17-cv-00453-AG-DTB Document 8-1 Filed 05/18/17 Page 11 of 20 Page ID #:56 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 70000.3045/10723639.1 12 Case No. 5:17-cv-00453-AG-DTB Memorandum of Points and Authorities 1. Plaintiffs’ Claim Is Time-Barred, And Fails For Lack Of Tender Plaintiffs seemingly base their claim upon allegations that FATCO “failed to disclosure (sic) under truth in lending laws” their right to cancel the Loan during its origination in 2007. See, Compl., ¶¶5, 20. Plaintiffs thus conclude that had they received this notice, “the obligation would have been extinguished 72 hours afters (sic) the close of escrow therefy (sic) nullifying the right to foreclose.” Id. The statute of limitations for cancellation of instruments is three years. Castro v. Geil, 110 Cal. 292, 292 (1985); Zakaessian v. Zakaessian, 70 Cal.App.2d 721, 725 (1945.) Additionally, an action for rescission under the Truth in Lending Act (“TILA”) “shall expire three years after the date of consummation of the transaction or upon the sale of the property, whichever occurs first.” 15 U.S.C. § 1635; see also, Cox v. First Nat. Bank of Cincinnati, 751 F.2d 815, 818 (6th Cir. 1985) (“[w]hen there is a failure to make all material disclosures, the consumer has a continuing right of rescission which does not lapse until the residence is sold or three years have elapsed from the consummation of the transaction, whichever is earlier.”) Moreover, “rescission should be conditioned on repayment of the amounts advanced by the lender.” Yamamoto v. Bank of New York, 329 F.3d 1167, 1171 (9th Cir. 2003) (citing LaGrone v. Johnson, 534 F.2d 1360, 1361-62 (9th Cir.1976).) Plaintiffs here admit the Loan originated in September of 2007. Compl., ¶5. Plaintiffs thus had until no later than September of 2010 to bring the instant action to cancel the DOT, and to bring a rescission claim under TILA. Castro, 110 Cal. at 292; Zakaessian, 70 Cal.App.2d at 725; 15 U.S.C. § 1635. Instead, Plaintiffs waited until almost a decade later to bring the instant action to rescind the Loan and request cancellation of the Trust Deed. Plaintiffs are unable to do so. Id. Additionally, Plaintiffs do not allege they have repaid the Loan amount provided to them during its origination. See, Compl., generally. Plaintiffs are therefore barred from asserting this claim due to lack of tender. Yamamoto, 329 F.3d at 1171. /// Case 5:17-cv-00453-AG-DTB Document 8-1 Filed 05/18/17 Page 12 of 20 Page ID #:57 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 70000.3045/10723639.1 13 Case No. 5:17-cv-00453-AG-DTB Memorandum of Points and Authorities 2. Plaintiffs Fail To Plead Actionable Facts To Support This Claim In order to plead a viable cancellation of instruments claim, Plaintiffs are also required to plead ultimate facts, rather than asserting “mere conclusions, showing the apparent validity of the instrument designated, and point out the reason for asserting it is actually invalid.” Ephraim v. Metro. Trust Co. of Cal., 28 Cal.2d 824, 833 (1946). Plaintiffs here simply fail to do so. See, Compl., generally. Indeed, it is unclear from their enigmatic Complaint allegations why Plaintiffs even claim that the DOT is in any way invalid. See, Compl., generally. Plaintiffs’ cancellation of instruments claim thus necessarily fails as a matter of law on these grounds as well. Ephraim, 28 Cal.2d at 833. B. Plaintiffs’ “Demand For Validation Of Debt” And “Cease And Desist Notice” Claims Fail As Matter Of Law Plaintiffs’ third cause of action for “demand for validation of debt” and fourth cause of action to “cease and desist notice to include cancellation of debt collection activity” listed on the Complaint caption (but not in the body of the Complaint) do not appear to be asserted against Defendants, or actual causes of action. See, Compl., caption, ¶23-25. 1. Plaintiffs Fail To State Cognizable Causes Of Action The underlying requirement of a cause of action is that a pleading give “fair notice” of the claim being asserted and the “grounds upon which it rests.” Yamaguchi v. US Dept. of Air Force, 109 F.3d 1475, 1481 (9th Cir.1997). Despite the flexible pleading policy of the Federal Rules of Civil Procedure, a complaint must give fair notice and state the elements of the claim plainly and succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir.1984). A plaintiff must allege with at least some degree of particularity overt facts which defendant engaged in to support plaintiff's claim. Id. A complaint does not suffice “if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 556 U.S. 662, 678 (quoting Twombly, 550 US at 557.) Case 5:17-cv-00453-AG-DTB Document 8-1 Filed 05/18/17 Page 13 of 20 Page ID #:58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 70000.3045/10723639.1 14 Case No. 5:17-cv-00453-AG-DTB Memorandum of Points and Authorities Plaintiffs’ third and fourth claims “lack[] facts of defendants' specific wrongdoing to provide fair notice as to what defendants are to defend.” Max v. Seterus, Inc., 2013 WL 708876, at *4 (E.D.Cal. 2013). Indeed, it is entirely unclear from Plaintiffs’ unartful pleadings whether these claims are actually causes of action whatsoever, as opposed to “demands” made to various codefendants. See, Compl., ¶¶23-25. If they are intended to serve as causes of action, Plaintiffs fail to specify which defendants these claims are asserted against, how defendants violated their rights, and/or how they claim to have been injured. See, Compl., generally. As the court found in Max, Plaintiffs’ claims lack “cognizable claims or legal theories upon which to support defendants' liability,” and instead assert “mere recitation of legal buzzwords and legal conclusions.” Id. They should therefore be summarily dismissed. Id. 2. Plaintiffs Fail To Assert A Viable RESPA Claim Rather than coherent causes of action, Plaintiffs’ third and fourth claims appear to be their attempt to convey qualified written requests (“QWR”) to Green Tree and/or RAHCI, under the Real Estate Settlement Procedures Act (“RESPA”). Compl., ¶¶23-25. These “demands” do not, however, provide any factual allegations suggesting that Defendants (or any party) violated RESPA. Id. As such, they fail against Defendants on these grounds alone. See, e.g., Evans v. Nationstar Mortg., LLC, 2015 WL 6756255, at *9 (E.D.Cal. 2015).6 Additionally, the applicable statutes related to QWR requests under RESPA only apply to loan servicers, not trust deed beneficiaries or trustees. See, 12 U.S.C. §2605(e)(1)(A), 2605(e)(1)(A). As a result, any such RESPA claim would necessarily fail against Defendants on these grounds as well. Id. 6 See also, Norris v. Bayview Loan Serv., LLC, 2016 WL 337381, at *5 (C.D. Cal. 2016) (complaints which “contain no allegations other than the catchall assertion that [a servicer] did not ‘provide accurate and complete responses’,” are insufficient to allege a RESPA violation under Rule 8”); Saterbak v. Nat'l Default Serv. Corp., 2015 WL 5794560, at *19 (S.D. Cal. 2015) (allegations that information provided by servicer was “inadequate and incorrect,” that “fails to provide facts to support the conclusion that the information was inadequate or incorrect” are insufficient). Case 5:17-cv-00453-AG-DTB Document 8-1 Filed 05/18/17 Page 14 of 20 Page ID #:59 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 70000.3045/10723639.1 15 Case No. 5:17-cv-00453-AG-DTB Memorandum of Points and Authorities 3. Plaintiffs Fail To Plead FDCPA And/Or RFDCPA Violations Plaintiffs’ Complaint asserts that unless (unspecified) defendants comply with their “demands,” these unknown defendants will be in violation of the Federal Debt Collection Practices Act (“FDCPA”) and/or the Rosenthal Fair Debt Collection Practices Act (“RFDPCA”). Compl., ¶25. Plaintiffs, however, do not plead any facts suggesting that Defendants actually violated these statutes. Compl., ¶25. Nor could they. This is because under both the FDCPA and RFDCPA: (i) Defendants are not “debt collectors,” and (ii) foreclosing on a property pursuant to a deed of trust is not a “debt collection practice.” See, e.g., Izenberg v. ETS Services, LLC, 589 F.Supp.2d 1193, 1199 (C.D. Cal. 2008) (FDCPA); Diessner v. Mortg. Electronic Reg. Systems, 618 F.Supp.2d 1184, 1188 (D. Ariz. May 18, 2009) (FDCPA); Lingad v. Indymac Fed. Bank, 682 F.Supp.2d 1142, 1148-49 (E.D. Cal. 2010) (RFDCPA); Arikat v. JP Morgan Chase, 430 F.Supp.2d 1013, 1026 (N.D. Cal. 2006) (RFDCPA). Plaintiffs’ third and fourth causes of action should therefore be dismissed against Defendants, and with prejudice. C. Plaintiffs’ Request For “Rescission Of Power Of Attorney” Fails Plaintiffs’ Complaint caption next lists a cause of action for “rescission and revocation of power of attorney” which is omitted from the body of the Complaint, and thus violates FRCP 8(a). See, Compl., caption, generally. This claim appears to be based upon Plaintiffs’ bald proclamation that “any power, including the power of sale, granted pursuant to” the Trust Deed executed by Omoyele “is hereby permanently revoked, rescinded, and cancelled” under Cal. Civil Code section 1216. Compl., ¶28. California’s statutory provisions provide a comprehensive framework for the regulation of a nonjudicial foreclosure sale pursuant to a power of sale contained in a deed of trust. Lona v. Citibank, N.A., 202 Cal.App.4th 89, 102 (2011); Moeller v. Lien, 25 Cal.App.4th 822, 830 (1994). It is longstanding California law that: [A] deed of trust transfers for the purpose of the trust all possible claims Case 5:17-cv-00453-AG-DTB Document 8-1 Filed 05/18/17 Page 15 of 20 Page ID #:60 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 70000.3045/10723639.1 16 Case No. 5:17-cv-00453-AG-DTB Memorandum of Points and Authorities of the trustors in the property conveyed ... and vests in the trustee the absolute legal title to the entire estate held by the trustors at the time of the execution of the trust deed, and that the title must remain in the trustee for that purpose until the trust is either executed through a sale upon default in the payment of the debt secured by the deed of trust, or is terminated by the payment of such debt or other method provided by law. Bryant v. Hobart, 44 Cal.App. 315, 317 (1919) (quoting MacLeod v. Moran, 153 Cal. 97 (1908); Weber v. McCleverty, 149 Cal. 316 (1906)); see also, Jenkins v. JP Morgan Chase Bank, N.A., 216 Cal.App.4th 497, 508 (2013); Stewart v. J.P. Morgan Chase Bank, N.A., 2016 WL 4618901, at *2 (S.D.Cal. 2016). Thus, in order to cancel or revoke the power of sale in a deed of trust, “the rule is that the complainant is required to do equity as a condition to his obtaining relief, by restoring to the defendant everything of value which the Plaintiff has received in the transaction.” Fleming v. Kagan, 189 Cal.App.2d 791, 796 (1961). Here, Plaintiffs apparently request the Court to revoke the power of sale clause contained in the DOT, simply because Plaintiffs have drafted a “Revocation of Power of Attorney, pursuant to California Civil Code section 1216.” Compl., ¶28. Section 1216 merely requires that the revocation of a recorded power of attorney is not effective unless the revocation is itself recorded. Cal. Civ. Code § 1216. It does not grant a borrower the right to unilaterally rescind the power of sale contained in a deed of trust. Id. Nor could it. Were this the case, any borrower would be enabled to obtain a loan secured by a deed of trust, record a “revocation” of the power of sale, and obtain the property scot-free, without repaying the outstanding loan amount. Such a policy would directly fly in the face of California’s entire statutory nonjudicial foreclosure scheme. See, Cal. Civ. Code § 2924, et seq.; Lona, 202 Cal.App.4th at 102; Moeller, 25 Cal.App.4th at 830. Plaintiffs do not claim that they have tendered the outstanding Loan amount to Case 5:17-cv-00453-AG-DTB Document 8-1 Filed 05/18/17 Page 16 of 20 Page ID #:61 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 70000.3045/10723639.1 17 Case No. 5:17-cv-00453-AG-DTB Memorandum of Points and Authorities any defendant. See, Compl., generally. As such, they are unable to revoke the power of sale, and the Court should dismiss their fifth claim with prejudice. Fleming, 189 Cal.App.2d at 796. VIII. PLAINTIFFS’ RICO ACTION FAILS AS A MATTER OF LAW Plaintiffs’ Complaint caption lists a cause of action for alleged violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”) which is omitted from the body of the Complaint, and thus violates Rule 8(a). Additionally, Plaintiffs omit any facts related to this alleged RICO violation, fail to plead any predicate offenses listed in RICO, and any RICO claim is necessarily barred by its statute of limitations. To state a civil RICO claim, a plaintiff must allege five elements: (1) conduct, (2) of an enterprise, (3) through a pattern, (4) of racketeering activity, establishing that (5) the defendant caused injury to the plaintiff’s business or property. Swartz v. KPMG LLP, 476 F.3d 756, 760-61 (9th Cir. 2007) (citing Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 (1985).) A “pattern of racketeering activity” means at least two criminal acts enumerated by statute. 18 U.S.C. § 1961(1), (5) (including, among many others, mail fraud, wire fraud, and financial institution fraud). These so-called “predicate acts” under RICO must be alleged with specificity in compliance with Rule 9(b). Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1400-01 (9th Cir.2004). A. Plaintiffs Fail To Plead Their RICO Claim With Requisite Particularity It is not enough to simply assert each element of a civil RICO claim in a conclusory manner. Much like a fraud claim, Federal Rule of Civil Procedure 9(b) requires a RICO claim to be pled with particularity. Edwards v. Marin Park, Inc., 356 F.3d 1058, 1065-66 (9th Cir. 2004) (“Rule 9(b)'s requirement that ‘[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity’ applies to civil RICO fraud claims.”) When several defendants are sued, the complaint must “inform each defendant separately of the allegations surrounding his alleged participation in the fraud.” Swartz, 476 F.3d at Case 5:17-cv-00453-AG-DTB Document 8-1 Filed 05/18/17 Page 17 of 20 Page ID #:62 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 70000.3045/10723639.1 18 Case No. 5:17-cv-00453-AG-DTB Memorandum of Points and Authorities 764-65. Additionally, a business entity cannot be held liable under RICO for the alleged participation of one of its employees, absent proof that the business entity: (a) was an active perpetrator of the fraud or a central figure in the criminal scheme, and (b) benefitted from its employee’s RICO violation. Qatar Nat’l Navigation & Transp. Co., Ltd. v. Citibank, N.A., 1992 WL 276565, at *7 (S.D.N.Y. 1992); Oki Semiconductor Co. v. Wells Fargo Bank, N.A., 298 F.3d 768, 775 (9th Cir. 2002). Here, Plaintiffs fail to plead any of the elements of their RICO claim against Defendants with any particularity whatsoever. Plaintiffs instead assert a naked conclusion that “Defendants engaged in violation (sic) of […] RICO” (Compl., ¶34), by apparently “engag[ing] in the statutory prohibited (sic) activity of investing in, acquiring, conducting and participating in an enterprise with income derived from a pattern of racketeering activity and collection of an unlawful debt and conspiring to commit these types of violations.” Compl., ¶37. Plaintiffs’ Complaint fails to plead what actions constituted these alleged “violations,” which defendants committed each action, or even which statutes they claim were violated. See, Compl., generally. Nor do Plaintiffs allege the identities or names of the alleged individuals who committed these actions, and/or the time(s), date(s), and/or place(s) these alleged actions occurred. See, Compl., generally. Plaintiffs’ “general allegations […] devoid of reference to identities, time, date, and place, are insufficient to meet the heightened pleading requirements of Rule 9(b)” to state a civil RICO claim against Defendants. Wooten v. Countrywide Home Loans Inc., 2012 WL 1641017, at *4 (E.D.Cal. 2012), aff'd, 649 Fed.Appx. 394 (9th Cir. 2016). B. Plaintiffs Fail To Plead Any Requisite Offenses Under RICO Next, “even assuming arguendo that plaintiff's allegations met Rule 9(b)'s heightened pleading requirements, such allegations do not support a civil RICO claim,” since none of the conclusory alleged actions are predicate offenses under RICO. Wooten, 2012 WL 1641017, at *4; see also, Ohlendorf v. Am. Brokers Conduit, 2012 WL 718682, at *11-12 (E.D.Cal. 2012) (“Neither fraud, in and of Case 5:17-cv-00453-AG-DTB Document 8-1 Filed 05/18/17 Page 18 of 20 Page ID #:63 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 70000.3045/10723639.1 19 Case No. 5:17-cv-00453-AG-DTB Memorandum of Points and Authorities itself, nor the creation of fraudulent loan documents are predicate offenses under RICO.”); Tilley v. Ampro Mortg., 2011 WL 5921415, at *12 (E.D.Cal. 2011) (same); Derakhshan v. Mortg. Electronic Registration Systems, 2009 WL 3346780, at *4 (C.D.Cal. 2009) (predatory lending is not a predicate offense for RICO). As a result, Plaintiffs’ claim fails as a matter of law on this ground as well. C. Plaintiffs’ RICO Claim Is Necessarily Time-Barred Finally, the statute of limitations for a civil RICO claim is four years, and begins to run “when a plaintiff knows or should know of the injury which is the basis of the action.” Pincay v. Andrews, 238 F.3d 1106, 1108 (9th Cir.2001); Living Designs, Inc. v. E.I. Dupont de Nemours and Co., 431 F.3d 353, 365 (9th Cir.2005). Here, Plaintiffs apparently base their RICO claim upon allegations which occurred during origination of the Loan in September of 2007. Compl., ¶¶5, 37. Their RICO claim was thus time-barred as of September of 2011. Because Plaintiffs fail to plead their RICO claim with any particularity, do not allege a predicate statutory violation, and their RICO claim is time-barred, the Court should dismiss Plaintiffs’ sixth cause of action against Defendants with prejudice. IX. CONCLUSION In light of the foregoing deficiencies contained in all of the Complaint actions against Defendants, the Court should dismiss each of Plaintiffs’ causes of action claims asserted against Defendants, and with prejudice. /// /// /// /// /// /// /// /// Case 5:17-cv-00453-AG-DTB Document 8-1 Filed 05/18/17 Page 19 of 20 Page ID #:64 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 70000.3045/10723639.1 20 Case No. 5:17-cv-00453-AG-DTB Memorandum of Points and Authorities DATED: May 18, 2017 SEVERSON & WERSON A Professional Corporation By: /s/ Stephen D. Britt Stephen D. Britt Attorneys for Defendants BANK OF AMERICA, N.A., as successor by April 27, 2009 de jure merger with Countrywide Bank, FSB (erroneously sued as Countrywide Bank FSB); COUNTRYWIDE HOME LOANS, INC.; RECONTRUST COMPANY, N.A. (erroneously sued as Recon Trust Company, N.A.; and MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. Case 5:17-cv-00453-AG-DTB Document 8-1 Filed 05/18/17 Page 20 of 20 Page ID #:65 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 70000.3045/10738012.1 Case No. 5:17-cv-00453-AG-DTB [Proposed] Order Granting Motion to Dismiss Plaintiff’s Complaint ROBERT J. GANDY (State Bar No. 225405) rjg@severson.com STEPHEN D. BRITT (State Bar No. 279793) sxb@severson.com SEVERSON & WERSON, A Professional Corporation 19100 Von Karman Avenue, Suite 700 Irvine, California 92612 Telephone: (949) 442-7110 Facsimile: (949) 442-7118 MARK JOSEPH KENNEY (State Bar No. 87345) mjk@severson.com SEVERSON & WERSON, A Professional Corporation One Embarcadero Center, Suite 2600 San Francisco, California 94111 Telephone: (415) 398-3344 Facsimile: (415) 956-0439 Attorneys for Defendants BANK OF AMERICA, N.A., as successor by April 27, 2009 de jure merger with Countrywide Bank, FSB (erroneously sued as Countrywide Bank FSB); COUNTRYWIDE HOME LOANS, INC.; RECONTRUST COMPANY, N.A. (erroneously sued as Recon Trust Company, N.A.; and MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA - EASTERN DIVISION OMOYELE, ROSALYN, WILLIAMS, JACQUELYN, Plaintiffs, vs. Michelle Simon, an Individual, RICHMOND AMERICAN HOMES OF CALIFORNIA, INC., a Colorado Corporation, COUNTRYWIDE BANK FSB, a failed Federal Savings Bank, and successor, COUNTRYWIDE HOME LOANS, INC., successor, C. Klenovich, an Individual, Beate Geery, an Individual, FIRST AMERICAN TITLE COMPANY, NHS, RECON TRUST COMPANY, N.A., a defunct trust company, successor, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., a Delaware Corporation, Charles N. Spense, an Individual, Victoria Gutierrez, GREEN TREE SERVICING LLC, Jerry Steinhaus, an Individual, Julian Ojeda, an Individual, DITECH FINANCIAL, RCO LEGAL, INC., NORTHWEST TRUSTEE SERVICES, INC., www.US-Foreclosure.com, www.Auction.com, and DOES 1 - 20, Inclusive, Defendants. Case No. 5:17-cv-00453-AG-DTB Magistrate Judge Hon. Sheri Pym Ctrm. 3 or 4 [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ COMPLAINT Date: June 20, 2017 Time: 10:00 a.m. Crtrm.: 10D Action Filed: March 10, 2017 Trial Date: None Set Case 5:17-cv-00453-AG-DTB Document 8-2 Filed 05/18/17 Page 1 of 2 Page ID #:66 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 70000.3045/10738012.1 Case No. 5:17-cv-00453-AG-DTB [Proposed] Order Granting Motion to Dismiss Plaintiff’s Complaint TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: The Motion to Dismiss plaintiffs Rosalyn Omoyele and Jacquelyn Williams’ (collectively, “Plaintiffs”) Complaint filed by defendants Bank of America, N.A., as successor by April 27, 2009 de jure merger with Countrywide Bank, FSB (erroneously sued as Countrywide Bank FSB) (“BANA”); Countrywide Home Loans, Inc. (“Countrywide”); ReconTrust Company, N.A. (erroneously sued as Recon Trust Company, N.A.) (“ReconTrust”); and MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. (“MERS”) (collectively, “Defendants”), came on for hearing on June 28, 2017, at 10:00 a.m., in Courtroom 10D of the above entitled Court. The Court, having fully considered all relevant documents, authorities, evidence and oral arguments presented by Plaintiffs and Defendants, and good cause having been shown: IT IS HEREBY ORDERED that: 1. Defendants’ Motion to Dismiss Plaintiffs’ Complaint is granted without leave to amend. 2. Defendants are hereby dismissed from this action with prejudice. IT IS SO ORDERED. DATED: _______________ Hon. Andrew Guilford Judge, United States District Court Case 5:17-cv-00453-AG-DTB Document 8-2 Filed 05/18/17 Page 2 of 2 Page ID #:67 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 70000.3045/10723639.1 Case No. 5:17-cv-00453-AG-DTB Proof of Service PROOF OF SERVICE At the time of service, I was over 18 years of age and not a party to this action. I am employed in the County of Orange, State of California. My business address is The Atrium, 19100 Von Karman Avenue, Suite 700, Irvine, CA 92612. On May 18, 2017, I served true copies of the following document(s): NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT PURSUANT TO FRCP 12(B)(6); MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF on the interested parties in this action as follows: Rosalyn Ann Lowden by Rosalyn Omoyele Jacquelyn Faye Lowden by Jacquelyn Faye Williams c/o 30777 Rancho California Rd. P.O. Box 891863 Temecula, CA 92591 Plaintiffs, Pro Se Telephone: (951) 225-2265 BY CM/ECF NOTICE OF ELECTRONIC FILING: I electronically filed the document(s) with the Clerk of the Court by using the CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the CM/ECF system. Participants in the case who are not registered CM/ECF users will be served by mail or by other means permitted by the court rules. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. I declare that I am employed in the office of a member of the bar of this Court at whose direction the service was made. Executed on May 18, 2017, at Irvine, California. Taylor P. Hankins Case 5:17-cv-00453-AG-DTB Document 8-3 Filed 05/18/17 Page 1 of 1 Page ID #:68