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Anthony S. Vertido, An Individual, and Darlene M. Vertido An Individual v. Gmac Mortgage Corp

January 17, 2012

ANTHONY S. VERTIDO, AN INDIVIDUAL, AND DARLENE M. VERTIDO AN INDIVIDUAL, PLAINTIFFS,
v.
GMAC MORTGAGE CORP, A BUSINESS ENTITY, FORM UNKNOWN;
GMAC MORTGAGE, LLC, A BUSINESS ENTITY FORM UNKNOWN,
FEDERAL NATIONAL MORTGAGE ASSOCIATION, A BUSINESS ENTITY FORM UNKNOWN,
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. A BUSINESS ENTITY FORM UNKNOWN; AND DOES 1--100 INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: David Alan Ezra United States District Judge

ORDER: GRANTING DEFENDANTS' MOTION TO DISMISS COMPLAINT

On January 17, 2012, the Court heard Defendants' Motion to Dismiss. Anthony S. Vertido and Darlene M. Vertido (collectively, "Plaintiffs"), appearing pro se, attended the hearing; Laura Moritz, Esq., appeared on behalf of Defendants. After reviewing the Motion and the supporting and opposing memoranda, the Court GRANTS Defendants' Motion to Dismiss (Doc. # 19).

BACKGROUND

On June 6, 2011, Plaintiffs Anthony S. Vertido and Darlene M. Vertido (collectively "Plaintiffs") filed a Complaint in this Court against Defendants GMAC Mortgage Corp., GMAC Mortgage, LLC, Federal National Mortgage Association, and Mortgage Electronic Registration Systems (collectively "Defendants"), alleging that Plaintiffs had been lured into a predatory mortgage loan. ("Compl.," Doc # 1.) Specifically, Plaintiffs' Complaint alleges the following Counts:

* Count I: Declaratory Relief. (Id. ¶¶ 42--45.)

* Count II: Injunctive Relief. (Id. ¶¶ 46--49.)

* Count III: Contractual Breach of Implied Covenant of Good Faith and Fair Dealing. (Id. ¶¶ 50--56.)

* Count IV: Violation of TILA, 15 U.S.C. § 1601, et. seq. (Id. ¶¶ 57--66.)

* Count V: Violation of Real Estate Settlement and Procedures Act (RESPA). (Id. ¶¶ 67--73.)

* Count VI: Rescission. (Id. ¶¶ 74--78.)

* Count VII: Unfair and Deceptive Business Act Practices (UDAP). (Id. ¶¶ 79--85.)

* Count VIII: Breach of Fiduciary Duty. (Id. ¶¶ 86--90.)

* Count IX: Unconscionability-- UCC-2-3202. (Id. ¶¶ 91--94.)

* Count X: Predatory Lending. (Id. ¶¶ 95--109.)

* Count XI: Quiet Title. (Id. ¶¶ 110--13.)

* Count XII: Wrongful Foreclosure and Ejectment. (Id. ¶¶ 114--117.)

Plaintiffs reside in the State of Hawai'i. (Id. ¶ 1.) The claims in Plaintiffs' Complaint relate to a mortgage and note entered into on or about November 21, 2005 for the purchase of real property located at 38 Lehuapueo Place, Wailuku, Hawaii (the "Subject Property"). (Id. ¶ 2--3.) The mortgage, which was recorded in the Bureau of Conveyances on November 29, 2005, lists GMAC Mortgage Corp. as the originating lender on the loan.*fn1 (Doc. # 19-5.)

On November 3, 2009, GMAC Mortgage LLC recorded a Notice of Mortgagee's Intention to Foreclose Under Power of Sale, which was recorded in the Bureau of Conveyances. (Doc. # 19-6.) The foreclosure auction took place on February 16, 2010, and the Subject Property was sold to GMAC Mortgage, LLC. (Doc. # 19-7.) The Subject Property was subsequently conveyed to the Federal National Mortgage Association ("FNMA") by Quitclaim Deed recorded on April 19, 2010. (Doc. 19-8.) On September 8, 2010, FNMA filed a Complaint for Ejectment in the District Court of the Second Circuit, Wailuku Division, State of Hawai'i. (Compl. Ex. B.)

On June 6, 2011, Plaintiffs filed their Complaint. Plaintiffs allege that Defendants "failed to provide the requisite Federal forms and disclosures including but not limited to the Truth in Lending act, Equal Opportunity Credit Act, Fair Lending/Fair Debt Collection Act as well as others." (Compl. ¶ 10.) Plaintiffs also contend that Defendants failed perform their due diligence and failed to properly qualify Plaintiffs for an affordable loan. (Id. ¶¶19--21.) Plaintiffs further allege that GMAC received "Unjust Enrichment from receiving a 'discount fee.'" (Id. ¶ 22-23.)

On September 27, 2011, Defendants filed the instant Motion to Dismiss. ("Mot.," Doc. # 19.) Plaintiffs did not file an Opposition, and Defendants did not file a Reply.

STANDARD OF REVIEW

I. Federal Rule of Civil Procedure 12(b)(6)

Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("Rule"), a motion to dismiss will be granted where the plaintiff fails to state a claim upon which relief can be granted. Review is limited to the contents of the complaint and matters properly subject to judicial notice. See Colony Cove Properties, LLC v. City of Carson, 640 F.3d 948, 955 (9th Cir. 2011). A complaint may be dismissed as a matter of law for one of two reasons: "(1) lack of a cognizable legal theory, or (2) insufficient facts under a cognizable legal claim." Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984) (citation omitted). Allegations of fact in the complaint must be taken as true and construed in the light most favorable to the plaintiff. See Livid Holdings Ltd. v. Salomon Smith Barney, Inc., 416 F.3d 940, 946 (9th Cir. 2005).

A complaint need not include detailed facts to survive a Rule 12(b)(6) motion to dismiss. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555--56 (2007). In providing grounds for relief, however, a plaintiff must do more than recite the formulaic elements of a cause of action. See id. at 556--57; see also McGlinchy v. Shell Chem. Co., 845 F.2d 802, 810 (9th Cir. 1988) ( "[C]onclusory allegations without more are insufficient to defeat a motion to dismiss for failure to state a claim.") (citation omitted). "The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions," and courts "are not bound to accept as true a legal conclusion couched as a factual allegation." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotations and citations omitted). Thus, "bare assertions amounting to nothing more than a formulaic recitation of the elements" of a claim "are not entitled to an assumption of truth." Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009) ("[T]he non-conclusory 'factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.") (internal quotations and citations omitted).

A court looks at whether the facts in the complaint sufficiently state a "plausible" ground for relief. See Twombly, 550 U.S. at 570. A plaintiff must include enough facts to raise a reasonable expectation that discovery will reveal evidence and may not just provide a speculation of a right to relief. Id. at 586. When a complaint fails to adequately state a claim, such deficiency should be "exposed at the point of minimum expenditure of time and money by the parties and the court." Id. at 558 (citation omitted). If a court dismisses the complaint or portions thereof, it must consider whether to grant leave to amend. Lopez v. Smith, 203 F .3d 1122, 1130 (9th Cir. 2000) (finding that leave to amend should be granted "if it appears at all possible that the plaintiff can correct the defect") (internal quotations and citations omitted).

II. Federal Rule of Civil Procedure 8

Federal Rule of Civil Procedure 8 mandates that a complaint include a "short and plain statement of the claim," Fed. R. Civ. P. 8(a)(2), and that each allegation "be simple, concise, and direct." Fed. R. Civ. P. 8(d)(1). A complaint that is so confusing that its "'true substance, if any, is well disguised'" may be dismissed sua sponte for failure to satisfy Rule 8. Hearns v. San Bernardino Police Dep't, 530 F.3d 1124, 1131 (9th Cir. 2008) (quoting Gillibeau v. City of Richmond, 417 F.2d 426, 431 (9th Cir. 1969); see also McHenry v. Renne, 84 F.3d 1172, 1180 (9th Cir. 1996) ( "Something labeled a complaint but written ..., prolix in evidentiary detail, yet without simplicity, conciseness and clarity as to whom plaintiffs are suing for what wrongs, fails to perform the ...


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