Lorena Garcia v. Mortgage Sense Inc
5:13-cv-01678
| C.D. Cal. | Nov 25, 2013Background
- Lorena Garcia, proceeding pro se, filed a multi-claim action on Sept. 17, 2013 against Mortgage Sense, Bank of America, Nationstar, ReconTrust, and Does 1-10.
- Plaintiff alleges eight claims including breach of contract, various California code violations, UCL, FDCPA/RESPA, wrongful foreclosure, and IIED.
- Nationstar moved to dismiss under Fed. R. Civ. P. 12(b)(6), 9(b), and 8(a); plaintiff did not file opposition; hearing held Nov. 25, 2013.
- Plaintiff claims a loan of $1,120,000 secured by a deed of trust on real property at 6188 Indigo Ave, Rancho Cucamonga, CA.
- Court finds plaintiff’s federal claims lack viable basis and plaintiff fails to properly plead citizenship/diversity for jurisdiction.
- Court declines supplemental jurisdiction over the remaining state-law claims and grants dismissal as to the asserted federal claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff’s federal claims confer jurisdiction | Garcia asserts federal questions exist in claims | Nationstar contends federal claims are not viable and do not establish jurisdiction | No viable federal claims; no federal jurisdiction |
| Whether breach of implied covenant is cognizable | Garcia cites Article I, Sec. 10 and seeks relief | No private right of action under this constitutional provision | Claim dismissed for lack of proper basis and failure to plead a plain claim |
| Whether the § 2923.5 claim and other federalized asserted grounds survive | Garcia relies on federal statutes within a state-law claim | Statutes cited do not create private rights or private RICO claim without proper pleading | Claims fail; no private action or properly pled RICO claim under 9(b) |
| Whether FDCPA/RESPA and related claims support relief | Alleges improper debt collection and disclosures violations | Foreclosure actions do not constitute debt collection under FDCPA; RESPA relief not supports wrongful foreclosure | Claims fail; no FDCPA/RESPA basis for the asserted relief |
| Whether the court should exercise supplemental jurisdiction | State claims should be retained | No federal claims—no supplemental jurisdiction | Court declines supplemental jurisdiction over remaining state-law claims |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (plausibility standard for pleading; more than mere labels)
- Ashcroft v. Iqbal, 129 S. Ct. 1937 (U.S. 2009) (pleading must contain factual content; plausible claims)
- In re American Cont’l Corp./Lincoln Sav. & Loan Sec. Litig., 102 F.3d 1524 (9th Cir. 1996) (standard for evaluating Rule 12(b)(6) dismissals with evidence)
- In re Silicon Graphics Inc. Sec. Litig., 183 F.3d 970 (9th Cir. 1999) (consideration of documents attached to complaint; judicial notice)
- Hulse v. Ocwen Fed. Bank, FSB, 195 F. Supp. 2d 1188 (D. Or. 2002) (foreclosure actions not FDCPA 'debt collection' actions)
- Keen v. American Home Mortgage Servicing, Inc., 664 F. Supp. 2d 1086 (E.D. Cal. 2009) (RESPA disclosures; cannot serve as basis for wrongful foreclosure)