PAUL S. GREWAL, Magistrate Judge.
In this foreclosure action, Defendants U.S. Bank, N.A., et al, ("Defendants") move to dismiss the complaint filed by Plaintiffs Kendra and Lance Anderson ("Plaintiffs"), proceeding pro se, pursuant to Fed. R. Civ. P. 12(b)(6). Pursuant to Civil L.R. 7-1(b), the court found oral argument unnecessary to resolution of this motion. Having reviewed the parties' papers, the court GRANTS the motion to dismiss.
The court draws the following facts from Plaintiffs' complaint. Plaintiffs reside at 2326 Antonelli Court, Santa Cruz, California 95062 (the "Subject Property").
At some point following the execution of these mortgage instruments, WaMu entered receivership under the Federal Deposit Insurance Corporation ("FDIC"), which sold many of WaMu's assets — including Plaintiff's DOT and Note — to JP Morgan Chase Bank N.A. ("JP Morgan").
On June 7, 2012, Title Trust Deed Service Co. ("TTDS"), representing itself as the trustee of the DOT, recorded a notice of default and election to sell ("NOD") in Santa Cruz County.
Plaintiffs allege that WaMu's sale of the Note and the underlying DOT to the Mortgage Pass-Through Trust did not comply with the trust's pooling service agreement ("PSA").
From these factual allegations, Plaintiffs claim that Defendants lack standing to foreclose on the Subject Property, that Defendants violated Cal. Civ. Code § 2923.5, that Plaintiffs are entitled to declaratory relief regarding the rights of the various parties to the Note, the DOT, and the Subject Property, that Plaintiffs are entitled to injunctive relief, and that they are entitled to quiet title declaration naming them as the only parties with interest in the Subject Property.
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief."
On a motion to dismiss, the court must accept all material allegations in the complaint as true and construe them in the light most favorable to the non-moving party.
Defendants request judicial notice various foreclosure-related documents recorded in the Santa Cruz County Recorder's Office (Exhibits 1, 2, 4, 5, and 6).
Styled as a request for declaratory relief, Plaintiffs seek from the court a determination of whether Defendants have standing to initiate foreclosure on the Subject Property. Defendants oppose that request, arguing that California's nonjudicial foreclosure scheme allows them to move forward with the foreclosure without a judicial determination of ownership. Defendants also assert that California law does not require recording of the assignment of a deed of trust prior to initiation of foreclosure, that Plaintiffs do not have standing to challenge the securitization of the loan, and that Plaintiffs have suffered no prejudice as a result of the securitization of the loan.
California courts have determined that nonjudicial foreclosure process does not provide a cause of action or a basis for declaratory relief for Plaintiffs to force Defendants to show they are authorized to initiate foreclosure. "Nothing in the statutory provisions establishing the nonjudicial foreclosure process suggests that such a judicial proceeding is permitted or contemplated."
Plaintiffs seek from this court what California courts already have determined is not available under the foreclosure statutes: a determination of whether Defendants have the right to initiate foreclosure. Because California's foreclosure process does not provide the recourse Plaintiffs seek, the motion to dismiss the declaratory relief request as premised on a challenge to Defendants' authority to initiate foreclosure is GRANTED WITHOUT LEAVE TO AMEND.
Plaintiffs allege that Defendants failed to comply with the requirements of Cal. Civ. Code § 2923.5,
The NOD, which is one of the documents of which Defendants request to court to take judicial notice, includes a declaration of compliance, on which JP Morgan's representative indicated that the "mortgagee, beneficiary or authorized agent tried with due diligence but was unable to contact the borrower to discuss the borrower's financial situation and to explore options for the borrower to avoid foreclosure as required by Cal. Civ. Code Section 2923.5."
As the court earlier observed, judicial notice of facts in dispute within the documents are not subject to judicial notice. The fact that Defendants filed the NOD with a declaration of compliance is noticeable; the statement that Defendants complied with their Section 2923.5 obligations, on the other hand, is not. Plaintiffs allege that they were not contacted by Defendants prior to the filing of the NOD. Their allegations dispute the assertion in the declaration of compliance. The declaration therefore does not defeat Plaintiffs' claim.
The court nevertheless finds that dismissal of Plaintiffs' Section 2923.5 claim is appropriate, but on preemption grounds rather than because of the declaration of compliance. Several courts, including this one, have concluded that the Home Owners' Loan Act ("HOLA")
Plaintiffs seek for the court to quiet title of the Subject Property in Plaintiffs' favor. "A quiet title action must include: (1) a description of the property in question; (2) the basis for plaintiff's title; and (3) the adverse claims to plaintiff's title."
Plaintiffs provide no indication that they have offered tender to discharge their debt or that they plan to. They seek only a declaration that they have title to the Subject Property, despite the loan they admit they received and for which they offered the Subject Property as security. Their claim for quiet title thus fails. Because this is Plaintiffs' first attempt to state a quiet title claim, the court finds that pursuant to Fed. R. Civ. P. 15(a), leave to amend the complaint is appropriate. The motion to dismiss therefore is GRANTED WITH LEAVE TO AMEND.
Although styled as a cause of action, Plaintiffs' request for an injunction is a remedy, not a separate claim of liability against Defendants. On those grounds, the injunction "claim" is dismissed. Furthermore, because the court has determined that none of the underlying claims as currently pleaded are viable, an injunction at this stage is not an appropriate remedy.
Plaintiffs' request for declaratory relief regarding Defendants' standing to foreclose and their Section 2923.5 claim are dismissed without leave to amend. The quiet title claim is dismissed with leave to amend. Plaintiffs shall file any amended complaint within fourteen days of this order.