United States District Court, D. Oregon, Medford Division
OWEN M. PANNER, District Judge.
This matter comes before the Court on Defendant Deutsche Bank's Motion to Dismiss (#25) and Motion for Joinder (#39) and Defendant Fidelity's Motion for Partial Summary Judgment (#33). Those Motions are GRANTED. All other pending motions are DENIED as moot.
Plaintiff took out a loan to purchase the property at issue on January 30, 2006. The loan was secured by a Note and Deed of Trust. Plaintiff defaulted on her loan and the property was sold at a non-judicial foreclosure sale on December 17, 2010. The Trustee's Deed indicates that the property was sold for $2, 590, 000, an amount far in excess of the balance of her loan.
I. Motion to Dismiss
Where the plaintiff "fail[s] to state a claim upon which relief can be granted, " the court must dismiss the action. Fed.R.Civ.P. 12 (b) (6).To survive a motion to dismiss, the complaint must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570 (2007). For the purpose of the motion to dismiss, the complaint is liberally construed in favor of the plaintiff and its allegations are taken as true. Rosen v. Walters , 719 F.2d 1422, 1424 (9th Cir. 1983). However, bare assertions that amount to nothing more than a "formulaic recitation of the elements" of a claim "are conclusory and not entitled to be assumed true." Ashcroft v. Iqbal , 556 U.S. 662, 680-81 (2009). Rather, ' to state a plausible claim for relief, the complaint "must contain sufficient allegations of underlying facts" to support its legal conclusions. Starr v. Baca , 652 F.3d 1202, 1216, reh'g en bane denied, 659 F.3d 850 (9th Cir. 2011).
II. Motion for Summary Judgment
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Whether or not a fact is material is determined by the substantive law on the issue. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n , 809 F.2d 626, 630 (9th Cir. 1987). There is a genuine dispute if the evidence is such that a reasonable jury would return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248-49 (1986). The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986).
Special rules of construction apply to evaluating summary judgment motions: (1) all reasonable doubts as to the existence of genuine issues of material facts should be resolved against the moving party; and (2) all inferences must be drawn in the light most favorable to the nonmoving party. T.W. Elec. , 809 F.2d at 630-31.
Defendant Deustche Bank has moved to dismiss all of Plaintiff's claims not related to the alleged surplus. Defendant Fidelity has filed a motion-for partial summary judgment on Plaintiff's surplus claim.
I. Motion for Partial Summary Judgment
As a preliminary matter, Deutsche Bank moves to join Fidelity in their motion for partial summary ...