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Tang Lu et al v. Countrywide Bank

April 26, 2013

TANG LU ET AL., PLAINTIFFS,
v.
COUNTRYWIDE BANK, N.A. ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Robert C. Jones United States District Judge

ORDER

This is a residential foreclosure avoidance case. Pending before the Court is Defendants' Motion for Judgment on the Pleadings (ECF No. 12). Because Plaintiffs have not timely responded, and for the reasons given herein, the Court grants the motion, with leave to amend in

FACTS AND PROCEDURAL HISTORY

Plaintiffs Wei Tang Lu and Feng Ling Situ purchased real property at 600 Beckton Park Ave., Las Vegas, NV 89178 (the "Property") as joint tenants with right of survivorship, giving

Countrywide KB Home Loans ("Countrywide") a $196,910 promissory note, and giving Mortgage Electronic Registration Systems, Inc. ("MERS") a deed of trust ("DOT") against the securing the loan. (See Deed, Jan. 17, 2008, ECF No. 13-1; DOT 1--3, Jan. 16, 2008, ECF No. 13-2). First American Title Co. ("First American") was the trustee on the DOT. (See DOT 2). MERS later assigned both the DOT and the underlying debt to BAC Home Loans ("BAC"), (see Assignment, Nov. 17, 2009, ECF No. 13-3), which MERS was able to do in its capacities as beneficiary of the DOT and Countrywide's nominee, respectively, and which cured the split in the mortgage created at inception via the use of MERS as the beneficiary see Edelstein v. Bank of N.Y. Mellon, 286 P.3d 249, 258--62 (Nev. 2012). The same

day, BAC substituted Recontrust Co., N.A. as trustee. (See Substitution, Nov. 17, 2009, ECF No.

next day, LSI Title Co., purportedly as agent for Recontrust, filed a Notice of Default based upon a default of unspecified amount since July 1, 2009. (See NOD, Nov. 18, 2009, ECF No. 13-5). Recontrust noticed a trustee's sale for April 22, 2010. (See Notice of Sale, Apr. 2, 2010, ECF No. 13-6). However, Recontrust rescinded the NOD on the scheduled sale

See Rescission, Apr. 22, 2010, ECF No. 13-7).

Plaintiffs sued Defendants Countrywide, BAC, MERS, and Merscorp, Inc. in pro se in this Court on seven causes of action: (1) fraud; (2) Real Estate Settlement Procedures Act ("RESPA"); (3) "fraudulent foreclosure"; (4) Fair Debt Collection Practices Act ("FDCPA"); (5) Truth in Lending Act ("TILA"); (6) "fraudulent assignment"; and (7) "notary fraud." The Court denied Plaintiffs' motion for a preliminary injunction, because Plaintiffs had not at that time

Defendant and presented no claims or evidence indicating that they were likely to succeed on the merits. Defendants have now moved for judgment on the pleadings, adducing the public records cited, supra, to their request for judicial notice.

LEGAL STANDARDS

"After the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). The standards governing a Rule 12(c) motion are the same as those governing a Rule 12(b)(6) motion. See Dworkin v. Hustler ., 867 F.2d 1188, 1192 (9th Cir. 1989) ("The principal difference . . . is the time of filing. [T]he motions are functionally identical . . . .").

A motion to dismiss under Rule 12(b)(6) tests the complaint's sufficiency. See N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). When considering a motion to under Rule 12(b)(6) for failure to state a claim, dismissal is appropriate only when the complaint does not give the defendant fair notice of a legally cognizable claim and the grounds on which it rests. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In considering

the complaint is sufficient to state a claim, a court takes all material allegations as true and construes them in the light most favorable to the plaintiff. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). A court, however, is not required to accept as true allegations that merely conclusory, unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A formulaic recitation of a cause of action with conclusory allegations is not ...


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