ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS
Presently before the Court is Defendants GMAC Mortgage, LLC (“GMAC”), Executive Trustee Services, LLC, dba ETS Services, LLC (“ETS”), and Mortgage Electronic Registration System, Inc. (“MERS”) (collectively, “Defendants”) motion to dismiss, (Doc. No. 4), Plaintiff Juana Montreal’s (“Plaintiff’) Complaint, (Doc. No. 1). In accordance with Civil Local Rule 7.1.d.l, the Court finds the motion suitable for determination on the papers and without oral argument. Accordingly, the motion hearing scheduled for June 20, 2013 is hereby vacated. For the reasons set forth below, the Court GRANTS Defendants’ motion to dismiss in its entirety providing Plaintiff limited leave to amend the complaint in compliance with this order.
BACKGROUND
On August 17, 2006, Plaintiff borrowed $301,600.00 (“the Loan”) from Suntrust Mortgage, Inc. (“Suntrust”) to purchase the property located at 4414 Newton Ave., San Diego, California 92113 (“the Property”). (Compl. ¶¶26, 27.) The Loan was memorialized by a Promissory Note (the “Note”) and secured by a Deed of Trust (“Deed of Trust”) on the Property. (Id. at ¶ 27, Ex. A; Doe. No. 4, Ex. 2.) The Deed of Trust named MERS as the beneficiary and Jackie Miller as the trustee. (Doc. No. 1, Ex. A; Doc. No. 4, Ex. 2.) On August 24, 2012, MERS assigned the beneficial interest in the Deed of Trust (“Assignment of the Deed of Trust”) to Deutsche Bank National Trust Company as trustee for Harborview Mortgage Loan Trust Mortgage Loan Pass-Through Certificates, Series 2006-14 (“Deutsche Bank”). (Compl., Ex. B; Doc. No. 4, Ex. 3.) The Assignment of the Deed of Trust was recorded in the official records of the San Diego County Recorder’s Office on August 31, 2012, as Document No.: 2012-0527658. (Id.) On October 4, 2012, Deutsche Bank substituted ETS as trustee under the Deed of Trust (“Substitution of
On November 7, 2012, ETS, as trustee under the Deed of Trust, issued a notice of default and election to sell under the deed of trust (“Nоtice of Default”). (Compl., Ex. D; Doc. No. 4, Ex. 5.) The Notice of Default stated that as of November 7, 2012, Plaintiff was in default of the Loan in the amount of $29,987.00. (Id.) The Notice of Default also informed Plaintiff that she must contact Deutsche Bank to arrange for payment in order to stop foreclosure of the Property. (Id.) The Notice of Default was recorded in the official records of the San Diego County Recorder’s Office on November 9, 2012, as Document No.: 2012-0701421. (Id.) On February 12, 2012, ETS recorded a notice of trustee’s sale (“Notice of Trustee’s Sale”) in the official records of the San Diego County Recorder’s Office as Document No.: 2013-0103723. (Compl., Ex. E; Doc. No. 4, Ex. 6.) The Notice of Trustee’s Sale informed Plaintiff that the unpaid balance on the Loan was currently $360,222.88. (Id.) The Notice of Trustee Sale also informed Plaintiff that the sale of the Property would take place on March 12, 2013. (Id.) On March 14, 2013, after the Property was sold at auction, ETS executed a trustee’s deed (“Trustee Deed”), indicating that the Property had been sold to Aslan Residential I, LLC. (Doc. No. 4, Ex. 7.) The Trustee Deed was recorded in the official records of the San Diego County Recorder’s Office on March 29, 2013, as Document No.: 2013-0200241. (Id.)
Plaintiff filed the instant complaint on March 28, 2013. (Doe. No. 1.) The complaint alleged ten causes of action: (1) violation of California’s Unfair Competition Law (“UCL”), Bus. & Prof.Code § 17200 et seq.; (2) intentional misrepresentation; (3) negligent misrepresentation; (4) fraudulent concealment; (5) quiet title; (6) declaratory relief; (7) violation of the Truth in Lending Act (“TILA”), 15 U.S.C. § 1601 et seq.; (8) violation of the Home Ownership and Equity Protection Act (“HOEPA”), 15 U.S.C. § 1639 et seq.; (9) violation of the Real Estate Settlement Procedures Act (“RESPA”) 12 U.S.C. §§ 2601 et seq.; and (10) violation of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq. Plaintiff was originally proceeding pro se, but elected to retain counsel before filing a response to Defendants’ instant motion. (Doc. Nos. 11, 13.)
LEGAL STANDARD
I. Motion to Dismiss
Dismissal is appropriate under Federal Rule of Civil Procedure 12(b)(6) when a plaintiffs allegations fail “to state a claim upon which relief can be granted.” Fed. R.Civ.P. 12(b)(6). In ruling on a motion to dismiss, the court must “accept all material allegations of fact as true and construe the complaint in a light most favorable to the non-moving party.” Vasquez v. L.A. Cnty.,
A Rule 12(b)(6) dismissal “can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t,
Under Rule 12(b)(6), complaints alleging fraud must satisfy the heightened pleading requirements of Federal Rule of Civil Procedure 9(b). Rule 9(b) requires that in all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Fed.R.Civ.P. 9(b). Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally. A pleading is sufficient under Rule 9(b) if it “state[s] the time, place and specific content of the false representations as well as the identities of the parties to the misrepresentation.” Misc. Serv. Workers, Drivers & Helpers v. Philco-Ford Corp.,
DISCUSSION
I. Defendants’ Request for Judicial Notice
Defendants seek judicial notice of seven documents: (1) Grant Deed (Exhibit 1); (2) Deed of Trust (Exhibit 2); (3) Assignment of the Deed of Trust (Exhibit 3); (4) Substitution of Trustee (Exhibit 4); (5) Notice of Default (Exhibit 5); (6) Notice of Trustee’s Sale (Exhibit 6); and (7) Trustee’s Deed upon Sale (Exhibit 7). (Doc. No. 5.) The first six exhibits were attached to Plaintiffs complaint and Plaintiff did not otherwise object to Defendants’ request. (Compl., Exs. A-E.) Accordingly, because each of the documents was recorded in the official records of the San Diego County Recorder’s Office, the Court grants Defendants’ request with respect to all seven documents. See Fed.R.Evid. 201(b)(2) (stating that the court may take notice of facts that are “not subject to reasonable dispute in that [they are] ... capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned.”); Reyn’s Pasta Bella, LLC v. Visa USA, Inc.,
II. Defendants’ Motion to Dismiss
Defendants move to dismiss the entire complaint on three grounds: (1) Plaintiff has not alleged she can tender the full
A. Violation of the UCL
Plaintiffs first cause of action is for unfair competition in violation of the UCL. (Compl. ¶¶ 69-81.) California Business and Professions Code Section 17200 defines unfair competition as “any unlawful, unfair or fraudulent business act or practice” and any “unfair, deсeptive, untrue or misleading advertising.” Cal. Bus. & Prof. Code § 17200. Because the statute is written in the disjunctive, it prohibits three separate types of unfair competition: (1) unlawful acts or practices, (2) unfair acts or practices, and (3) fraudulent acts or practices. Cel-Tech Commc’ns, Inc. v. L.A. Cellular Tel. Co.,
Plaintiff alleges Defendants violated all three subparts of the UCL. (Compl. ¶¶ 71, 74, 76.) As a result, Plaintiff seeks an order requiring Defendants to restore all monies and property that may have been acquired as a result of the alleged unfair, deceptive, and/or unlawful business acts or practices, restitution for out-of-pocket expenses and economic harm, and prejudgment interest. (Id. at ¶¶ 78-80.) Defendants move to dismiss this cause of action on the basis that Plaintiff fails to allege any unlawful, unfair, or fraudulent business practices because each of the underlying predicate acts in the complaint also fail. (Doc. No. 4 at 10-11.)
1. Unlawful, Unfair, and Fraudulent Conduct
By proscribing “any unlawful” business practice, Section 17200 “borrows” violations of other laws and treats them as unlawful practices that the unfair competition law makes independently actionable. Cal. Bus. Prof.Code § 17204. Thus “violation of almost any federal, state, or local law may serve as the basis for a[n] [unfair competition] claim.” Plascencia v. Lending 1st Mortg.,
With regard to the unlawful prong, Plaintiff alleges Defendants committed unlawful business practices by using fraudulent and ineffective documents to illegitimately foreclose upon and sell the property at auction. (Compl. ¶ 76.) Plaintiff however does not articulate which statute(s) Defendants allegedly violated, or specify the role of each individual Defendant in this fraudulent scheme. See Swartz v. KPMG LLP,
Plaintiffs claims under the unfair and fraudulent prongs are similarly defective. Both of these claims allege Defendants committed unfair and fraudulent acts by delivering and posting the Notice of Trustee’s Sale and proceeding with the sale of the Property without the legal authority to do so. (Compl. ¶¶ 71, 74.) These are the same allegations Plaintiff utilized to support her intentional misrepresentation, negligent misrepresentation, and fraudulent concealment claims. (Compl. ¶¶ 82-109.) As stated below, none of these allegations meet the heightened pleading standard under Rule 9(b) because Plaintiff fails to allege how each individual Defendant participated in the alleged fraudulent scheme. Moreover, because Plaintiffs allegations with respect to the unfair and fraudulent prongs are dependent on Plaintiffs contentions that the Trustee’s Sale was void because Defendants did not have standing to foreclose on the Property, (which is at odds with Plaintiffs other allegations that this is a contract case and not a wrongful foreclosure case), such allegations also fail because Plaintiff has not alleged sufficient facts to support her willingness and ability to tender the full amount due under the Loan. Simply stating she will tender the amount due and owing in insufficient. See Mitchell v. Bank of America, No.: 10cv432 L(WVG),
Therefore, the Court finds Plaintiff has failed to state a claim under either the unlawful, unfair, or fraudulent prongs of the UCL. Accordingly, Plaintiffs first cause of action for violation of the UCL is DISMISSED without prejudice.
B. Intentional Misrepresentation, Negligent Misrepresentation, and Fraudulent Concealment
Plaintiffs second, third, and fourth causes of action allege intentional misrepresentation (count two), negligent misrepresentation (count three), and fraudulent concealment (count four). (Compl. ¶¶ 82-109.) The basis of each of these causes of action is Plaintiffs belief that Defendants sent her a notice of trustee’s sale indicating that they had a lawful right to foreclose upon and sell the Property, when in fact, such representations were false, Defendants knew such representations were false, Defendants concealed the truth of these matters from Plaintiff, and as a result, Plaintiff suffered direct financial harm. (Id. at ¶¶ 83, 88, 89, 94, 96, 99, 100, 102, 106.) With respect to the fourth cause of аction for fraudulent concealment, Plaintiff also alleges that Defendants were bound to disclose the truth of these concealed facts, but failed to disclose such facts in order to induce Plaintiff to surrender the Property without challenge. (Id. at ¶¶ 103, 104.) Defendants move to dismiss all three fraud based claims on the basis that Plaintiff lacks standing to challenge the nonjudicial foreclosure sale and the allegations fail to meet the specificity required by Rule 9(b).
Under California law, “[t]he elements of intentional misrepresentation, or actual fraud, are: ‘(1) misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (scienter); (3) intent to defraud (i.e., to induce reliance); (4) justifiable reliance; and (5) resulting damage.’ ” Anderson v. Deloitte & Touche,
Claims alleging intentional misrepresentation, negligent misrepresentation, and
The Court finds each of Plaintiffs fraud based claims fail for lack of specificity under Rule 9(b), and Plaintiff nevertheless lacks standing to challenge the propriety of the nonjudicial foreclosure. Plaintiff has not alleged any specific information about who made the alleged misrepresentations, when the alleged misrepresentations were made, the content or form of the representations, and which Defendants allegedly made which representations. Instead, Plaintiff alleges that the Notice of Trustee’s Sale, which was sent by ETS, contained misrepresentations, which Defendants jointly knew were false. Thus, Plaintiff does not identify the role of each Defendants in the alleged “fraudulent scheme,” as required under Rule 9(b). Moreover, as stated in more detail below, tеnder of the amount owed is a condition precedent to any claim for wrongful foreclosure or challenge to an irregularity in a foreclosure sale. See Abdallah v. United Sav. Bank,
Furthermore, with respect to Plaintiffs fourth cause of action for fraudulent concealment, Plaintiff has failed to allege how each Defendant was under a duty to disclose the alleged misrepresentations. Conclusory allegations that “Defendants were bound to disclose the truth of these matters,” are insufficient. Plaintiff must identify the role of each Defendant in the alleged fraudulent scheme.
Therefore, the Court finds Plaintiffs allegations fail to meet the requirements of Rule 9(b), fail to allege standing to challenge the nonjudicial foreclosure, and fail to allege a duty by each Defendant to support a cause of action for fraudulent concealment. Accordingly, Plaintiffs second, third, and fourth causes of action for intentional misrepresentation, negligent misrepresentation, and fraudulent concealment are DISMISSED-without prejudice.
C. Quiet Title
Plaintiffs fifth cause of action is for quiet title and seeks a judicial determination of her fee simple title in the Property against Deutsche Bank as of August 17, 2006 — the date the Loan was executed. (Compl. ¶¶ 110-118.) Plaintiff alleges that Defendants lacked standing to sell the Property at the trustee’s sale, and as a result, Plaintiff is the actual owner of the Property because the trustee’s sale is void and the transfer of the Property to Aslan Residential I, LLC (the entity that purchased the Property at auction) is without legal or equitable effect. (Id. at ¶¶ 111, 114.) Defendants move to dismiss this cause of action on the basis that Plaintiff cannot quiet title to the Property without paying or tendering the sums she borrowed against it. (Doc. No. 4 at 11.)
An action to quiet title may be brought to establish titlе against adverse claims to real property or any interest therein. See Cal.Code Civ. Proc. § 760.020. To state a claim for quiet title a plaintiff must set forth the following in a verified complaint: (1) a description of the property, both legal description and street address; (2) the title of the plaintiff, and the basis for that title; (3) the adverse claims to the plaintiffs title; (4) the date as of which the determination is sought; and (5) a prayer for the determination of the plaintiffs title against the adverse claims. Cal.Civ.Proc. Code § 761.020(a)-(e). Moreover, “[i]n order to allege a claim to quiet title, [a pjlaintiff must allege tender or offer of tender of the amounts borrowed.” Ricon v. Recontrust Co., No.: 09cv937 IEG (JMA),
Although Plaintiff submitted a verified complaint that provided the legal description of the Property, the date on which a judicial determination is sought, and a prayer for determination of title, the Court finds Plaintiff has not alleged that Defendants have asserted any adverse claims to title of the Property. Instead, Plaintiff alleges that GMAC was the loan servicer, ETS was the substituted trustee, and MERS was the beneficiary under the Deed of Trust. However, as of March 12, 2013, Aslan Residential I, LLC has been conveyed all rights, title, and interest to the Property as a result of the trustee’s sale. Thus, any claim to the Property must be made, if at all, against Aslan Residential I, LLC, which appears to be the basis of Plaintiffs pending state court unlawful de-tаiner action.
Furthermore, although a plaintiff is not required to make an evidentiary showing that he or she is able to tender the proceeds due and owing on an outstanding debt before pursuing an action to quiet title, the Court finds Plaintiff has not even alleged that she is “financially capable of tendering the loan proceeds.” Mitchell v. Bank of Am., No.: 10cv432 L(WVG),
Therefore, the Court finds Plaintiff has failed to state a viable claim for quiet title and amendment of such claim would be futile. See Lopez v. Chase Home Fin., LLC, No. 09-0449,
D. Declaratory Relief
Plaintiffs sixth cause of action is for declaratory relief and seeks a judicial determination of the respective rights and duties of the parties with respect to the
Under 28 U.S.C. § 2201(a), “any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.” Declaratory relief should be denied if it will “neither serve a useful purpose in clarifying and settling the legal relations in issue nor terminate the proceedings and afford relief from the uncertainty and controversy faced by the parties.” United States v. Wash,
Here, the Court finds Plaintiffs request for declaratory relief is entirely commensurate with the relief sought through her other causes of action. Therefore, to the extent Plaintiff is successful in any of her remaining causes of action, this claim is duplicative and unnecessary. Accordingly,Plaintiffs sixth cause of action for declaratory relief is DISMISSED with prejudice.
E. TILA Violation
Plaintiffs seventh cause of action is for violation of TILA. (Compl. ¶¶ 127-133.) Plaintiff alleges Defendants violated TILA: (1) by refusing and continuing to refuse to validate or otherwise make a full accounting and the required disclosures of the true finance fees and charges; (2) improperly retaining funds belonging to Plaintiff; and (3) failing to disclose the ownership of the loans. (Id. at ¶ 129.) As a result of these alleged viоlations, Plaintiff seeks rescission or cancellation of the loan and a return of all funds received by Defendants from Plaintiff, compensatory damages in an amount to be determined at trial, attorneys’ fees, and punitive damages in light of Defendants willful and conscious disregard for Plaintiffs rights. (Id. at ¶¶ 130-133.) Defendants allege that Plaintiffs TILA claims are barred by the applicable statute of limitations and should be dismissed without leave to amend.
1. TILA Damages Claim
TILA seeks to protect credit consumers by mandating “meaningful disclosure of credit terms.” 15 U.S.C. § 1601(a). Its provisions impose certain duties on creditors “to provide borrowers with clear and accurate disclosures of [the] terms [of their loan, including] ... finance charges, annual percentage rates of interest, and the borrower’s rights.” Beach v. Ocwen Fed. Bank,
Here, the Court concludes Plaintiff has failed to sufficiently allege a cause of action against Defendants for damages under TILA. Specifically, Plaintiff fails to allege which provisions of TILA Defendants allegedly violated, how each Defen
Furthermore, Plaintiffs request for damages under TILA is subject to a one year statute of limitations, typically running from the date the loan transaction was consummated. 15 U.S.C. § 1640(e). Here, Plaintiff’s loan was executed on August 17, 2006, (Doc. No. 5, Ex. 2; Compl., Ex. A), however Plaintiff did not file the instant action until March 28, 2013, approximately six years, seven months, and eleven days after the Loan closed. This is well beyond the one-year limitation period. Moreover, although Plaintiff alleges that she did not become aware of the facts that form the basis of her TILA damage claim until after Defendants initiated foreclose proceedings against the Property, Plaintiff fails to allege why she could not have discovered this alleged wrongdoing earlier. There is no suggestion that Defendants prevented Plaintiff from comparing her loan documents and disclosures with the TILA requirements. See, e.g., Garcia v. Wachovia Mortg. Corp.,
2. Rescission Claim
In additional to a claim for damages,'TILA allows an obligor to rescind a loan transaction under certain circumstances. However, an obligor’s right of rescission under TILA expires, at the latest, “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(f) (emphasis added); King,
Under this statutory scheme, the latest Plaintiff could have exercised her right to rescind would have been three years after the loan transaction, (August 17, 2006), or upon the sale of the Property, whichever occurred first. See 15 U.S.C. § 1635(f). Here, although the Property was sold at public auction on March 12, 2013, (Doc. No. 5, Ex. 7 at 3), Plaintiff consummated her Loan on August 17, 2006, (Doc. No. 1, Ex. A). Therefore, even though Plaintiff alleges that her TILA rescission claim is
F. RESPA
Plaintiffs eighth cause of action allеges Defendants violated RESPA by placing loans for the purpose of unlawfully increasing or otherwise obtaining yield spread fees and sums in excess of what would have been lawfully earned. (Compl. ¶ 136.) Plaintiff also alleges that Defendants violated RESPA because the servicing contract or duties were transferred or hypothecated without the required notice. (Id. at ¶ 137.) Defendants move to dismiss this cause of action on the ground that it is time-barred.
12 U.S.C. § 2607(a) provides that “[n]o person shall give and no person shall accept any fee, kickback, or thing of value pursuant to any agreement or understanding, oral or otherwise, that business incident to or a part of a real estate settlement service involving a federally related mortgage loan shall be referred to any person.” 12 U.S.C. § 2605(b)(1) & (d) provides that “[e]ach servicer of any federally related mоrtgage loan shall notify the borrower in writing of any assignment, sale, or transfer of the servicing of the loan to any other person” and that “[d]uring the 60-day period beginning on the effective date of transfer of the servicing of any federally related mortgage loan, a late fee may not be imposed on the borrower.” “Servicer” is defined in the statute as, “the person responsible for servicing of a loan (including the person who makes or holds a loan if such person also services the loan).” 12 U.S.C. § 2605(i)(2). RESPA contains a one year statute of limitations for any action brought pursuant to the above provisions. See 12 U.S.C. § 2614.
The Court concludes Plaintiff has failed to state a claim against Defendants under RESPA. For example, the complaint fails to allege when any alleged violation of RESPA occurred in relation to the alleged Yield Spread Premium (“YSP”), and how eаch individual Defendant should/would be liable, as Suntrust was the original lender of the Loan. (Compl. ¶ 136.) Furthermore, federal and state courts have rejected the proposition that YSPs are illegal per se. See Bjustrom v. Trust One Mortg. Corp.,
G. HOEPA Violation
Plaintiffs ninth cause of action alleges her loan is in violation of HOEPA
“HOEPA is an amendment of TILA, and therefore is governed by the same remedial scheme and statutes of limitations as TILA.” Hamilton v. Bank of Blue Valley,
Here, Plaintiff fails to allege facts to support a finding that the Loan at issue is covered by HOEPA. See 15 U.S.C. § 1602(aa)(1) (describing loans to which HOEPA disclosure requirements apply). Plaintiff merely states that the Loan falls within the purview of HOEPA. (Compl. ¶ 142.) Such conclusory allegations are not sufficient. Furthermore, since the same statute of limitations applies to Plaintiffs HOEPA claims as her TILA claims, the claims are time-barred. Accordingly, Plaintiffs ninth cause of action for violation of HOEPA is DISMISSED without prejudice.
H. FDCPA
Plaintiffs tenth cause of action is for violation of the FDCPA. (Compl. ¶¶ 146-150.) Plaintiff alleges that Defendants are “debt collectors,” and that Defendants did not respond to Plaintiffs requests for validation of the debt as required under the FDCPA. (Id. at ¶¶ 147-149.) Defendants move to dismiss this cause of action on the ground that a loan servicer is not a “debt collector” as defined under the FDCPA, and forеclosing on a property pursuant to a deed of trust is not a “debt collection activity.” (Doc. No. 4 at 7-8.)
The declared purpose of the FDCPA is to “eliminate abusive debt collection practices by debt collectors ... and to promote consistent state action to protect consumers against debt collection abuses.” 15 U.S.C. § 1692. To state a claim under the FDCPA, “a plaintiff must allege facts that establish the following: (1) the plaintiff has been the object of collection activity arising from a consumer debt; (2) the defendant attempting to collect the debt qualifies as a ‘debt collector’ under the FDCPA; and (3) the defendant has engaged in a prohibited act or has failed to perform a requirement imposed by the FDCPA.” Adesokan v. U.S. Bank, N.A.,
The Ninth Circuit has yet to determine if foreclosure proceedings constitute “debt collection” within the ambit of the FDCPA, but most district courts within the circuit have found that they do not. See, e.g., Garfinkle v. JPMorgan Chase Bank,
Here, although Plaintiff alleges Defendants are “debt collectors,” she fails to specifically allege facts indicating that any of the Defendant are “debt collectors” as defined under the FDCPA. Conclusory allegations simply parroting the language of the statute will not suffice. Furthermore, Plaintiff admits in the complaint that Defendant GMAC is the “loan servi-cer for the subject loan of this action.” (Compl. ¶ 8.) Therefore, because “[a] mortgage servicing company is not a debt collector within the meaning of the FDCPA,” Plaintiff cannot maintain a FDCPA claim against Defendant GMAC. Jelsing v. MIT Lending, No. 10cv416 BTM (NLS),
CONCLUSION
For the reasons set forth above, the Court GRANTS Defendants’ motion to dismiss. (Doc. No. 4.) Specifically, the Court makes the following findings:
1. GRANTS Defendants’ motion to dismiss with respect to the First Cause of Action (UCL), Second Cause of Action (intentional misrepresentation), Third Cause of Action (negligent misrepresentation), Fourth Cause of Action (fraudulent concealment), Seventh Cause of Action (TILA damages claim), Eighth Cause of Action (RESPA), and Ninth Cause of Action (HOEPA damages claim) without prejudice.
2. GRANTS Defendants’ motion to dismiss with respect to the Fifth Cause of Action (quiet title), Sixth Cause of Action (declaratory relief), Seventh Cause of Action (TILA rescission claim), and Tenth Cause of Action (FDCPA) with prejudice.
3. Plaintiff may file an amended complaint to cure the deficiencies noted above. No new parties or claims may be added without leave of Court. Failure to file an amended complaint by July 5, 2013 will result in dismissal of the action.
IT IS SO ORDERED.
Notes
. Rule 9(b) serves three purposes: (1) to provide defendants with adequate notice to allow them to defend the charge and deter plaintiffs from the filing of complaints "as a pretext for the discovery of unknown wrongs”; (2) to protect those whose reputation would be harmed as a result of being subject to fraud charges; and (3) to "prohibit [] plaintiff[s] from unilaterally imposing upon the court, the parties and society enormous social and economic costs absent some factual basis.” In re Stac Elecs. Sec. Litig.,
. In response to Defendants’ pending motion to dismiss Plaintiff did not offer any new allegations as to how Defendants were under a "duty” to plaintiff or otherwise respond to Defendants’ arguments for dismissal.
. Plaintiff has gone to ample effort to persuade the Court that this is not a foreclosure case but rather a case based on contract. (Doc. No. 12 at 1:8-15, 2:21-27, 3:1-7, 8:11-13, 9:4-10.)
. Plaintiff did not specifically respond to Defendants arguments for dismissal of the FDCPA cause of action in her response. (Doc. No. 12.)