Opinion

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES — GENERAL

Case No. 5:25-cv-02407-AH-(BFMx) Date November 3, 2025

en FETE OW ORROME RAO

Present: The Honorable Anne Hwang, United States District Judge

Yolanda Skipper —__———NotReported

Deputy Clerk Court Reporter

Attorney(s) Present for Plaintiff(s): Attorney(s) Present for Defendant(s):

None Present None Present

Proceedings: (IN CHAMBERS) ORDER DENYING PLAINTIFF’S MOTION TO

REMAND AND DEFENDANTS’ MOTION TO DISMISS AND

GRANTING IN PART DEFENDANTS’ AMENDED MOTION TO

DIsMIss (DKT. Nos. 4, 17, 23)

Before the Court is pro se Plaintiff Eric D. Bailey’s Motion to Remand, Dkt.

No. 17; Defendants LoanCare LLC (“LoanCare”) and Lakeview Loan Servicing

LLC’s (“Lakeview”) (collectively, “Defendants”) Motion to Dismiss Plaintiff’s

First Amended Complaint (“FAC”), Dkt. No. 4; and Defendants’ Amended Motion

to Dismiss Plaintiff’s FAC, Amended Mot., Dkt. No. 23.1 Defendants oppose the

Motion to Remand. Dkt. No. 22. Plaintiff filed a Combined Opposition to both

Motions to Dismiss. Opp’n, Dkt. No. 25. Defendants filed a Reply. Reply, Dkt.

No. 28. The Court heard oral argument on October 29, 2025. For the reasons set

forth below, the Court DENIES the motion to remand, DENIES the Motion to

Dismiss as moot,” and GRANTS in part and DENIES in part the Amended Motion

to Dismiss.

There are other defendants who did not join the Motion to Dismiss or Amended

Motion to Dismiss.

? In light of the second, “Amended Motion to Dismiss,” the Court declines to

consider the earlier filed motion and denies it as moot.

Page 1 of 17 CIVIL MINUTES — GENERAL Initials of Deputy Clerk YS

I. BACKGROUND

A. Facts Alleged in the FAC3

At issue in this case is certain real property located in Victorville, California

(“Property”). See FAC ¶ 1. “[T]he property was encumbered by a deed of trust

securing a mortgage loan,” in the amount of $372,135.00. Id. ¶ 12; Ex. 1, FAC.4

The Deed of Trust recorded on July 21, 2023, indicates that Defendant Golden

Empire Mortgage, Inc. (“Golden Empire”) was the lender. Ex. 1, FAC. LoanCare

became the loan servicer for the Property. FAC ¶ 2.

Following acquisition of the Property, “Plaintiff made payments on the

mortgage loan and maintained homeowner’s insurance on the Property.” Id. ¶ 13.

Prior to January 12, 2024, Plaintiff “sent a debt validation request” to Defendants

pursuant to the Fair Debt Collection Practices Act, requesting verification of the

debt, the amount owed, the identity of the creditor, and “legal basis for collection.”

Id. ¶ 14.

1. Golden Empire’s Alleged Conduct

Plaintiff alleges that Golden Empire did not provide “proper debt

validation.” See id. ¶ 15. Instead, Golden Empire allegedly sent “unsolicited loan

modification documents,” which Plaintiff rejected. Id. ¶ 15, 18. Specifically, from

January 9 to January 16, 2024, Golden Empire’s loan officer, Manuel Corral, sent

several texts to Plaintiff. See Ex. 7, FAC, Dkt. No. 1-4 at 89, 107–08.5 On January

11, 2024, Corral texted Plaintiff that “[m]y corporate office is willing to send you

[a] $150 gift card if you would be willing to communicate with us. I’m here to

help you. We need to get a firm [sic] signed. Are you open to taking my call?”

See id. at 89, 107.

On January 12, 2024, Golden Empire sent Plaintiff a notice that read,

3 All facts stated herein are taken from the allegations in the FAC unless otherwise

indicated. The Court assumes the truth of the factual allegations in the FAC solely

for the purpose of deciding these motions.

4 Though the FAC alleges “Plaintiff acquired fee simple title to the Property,” FAC

¶ 11, Exhibit 1 itself makes clear that Plaintiff was the “borrower” on a home loan

secured by a deed of trust.

5 The Court uses the ECF page numbers for the exhibits to the FAC.

It is [u]rgent that we reach you regarding your loan that we closed for

you back in July, 2023. To be able to get the loan insured, FHA is asking

for the included forms signed by you. Please do not date the forms. We

need them returned to us by January 19th. . . .

Also, could you please contact Manuel Corral at [phone number] to

discuss your past and future payments. It is very important that he

speak with you. We are definitely here to help you. But, we need your

cooperation.

Id. at 89. Enclosed was a Uniform Residential Loan Application that was partially

pre-filled. Id. at 90–102. Plaintiff alleges that this document “contained fabricated

terms.” FAC ¶ 15.

Corral and Golden Empire’s loan processor, Melinda Hisey “represented in

writing that these loan modification documents [(i.e., the Uniform Residential

Loan Application)] were ‘necessary to avoid foreclosure’ and that the $150

payment would be provided via gift card,[] when in fact the documents were

designed to create grounds for immediate foreclosure while circumventing

Plaintiff’s debt validation rights.” Id. ¶ 16; see Ex. 7, FAC, Dkt. No. 1-4 at 89.

Plaintiff never signed the Uniform Residential Loan Application. FAC ¶ 18.

2. Foreclosure

Plaintiff alleges that Defendants initiated foreclosure proceedings on January

30, 2024, “treating the unsigned, rejected documents as if they created valid

contractual obligations.” Id. ¶ 19. Defendant Barrett Daffin Frappier Treder and

Weiss LLP (“Barrett Daffin”) “recorded a Notice of Default against the Property

based solely on the unsigned contract documents that Plaintiff had explicitly

rejected, proceeding without any valid contractual basis for foreclosure and

without complying with Civil Code § 2924(a)(6), which requires attorney review

of foreclosure documents.” Id. ¶ 21. Defendants mailed required foreclosure

notices to an address in Phelan, California, which Plaintiff has never used, in “a

deliberate attempt to circumvent Plaintiff’s right to notice.” Id. ¶ 26–27; Ex. 21,

FAC, Dkt. No. 1-4 at 172.

The foreclosure sale took place on August 14, 2024. FAC ¶ 30. However,

according to Plaintiff, “no valid debt existed to support foreclosure,” as evidenced

by “[a] credit report dated August 5th, 2024, show[ing] a $0 balance on the

mortgage account.” Id. ¶ 33. After the foreclosure, Defendants engaged in

conduct inconsistent with their ownership of the Property. See id. ¶¶ 35–36.

3. Plaintiff’s Correspondence

Plaintiff “continued to demand debt validation” by mail on December 27,

2023, and January 9, 2024. Id. ¶ 23. On March 25, 2025, Plaintiff emailed

had@bdfgroup.com regarding his LoanCare account. Id.; Ex. 10, FAC, Dkt. No.

1-4 at 125. On June 1, 2025, Plaintiff mailed a “Pre-Litigation Notice of HBOR

Violations” letter to Barrett Daffin. FAC ¶ 23; Ex. 11, FAC, Dkt. No. 1-4 at 129–

34 (emphasis omitted). On June 19, 2025, Plaintiff sent a letter to LoanCare’s

Legal Department regarding RESPA violations and “notice of intent to sue.” FAC

¶ 23; Ex. 14, FAC, Dkt. No. 1-4 at 140 (citation modified). “Defendants ignored

these debt validation” requests. FAC ¶ 24. Specifically, LoanCare “failed to

provide substantive responses to these [Qualified Written Requests]” and “instead

sen[t] evasive form letters dated June 11th, 2025, and July 18th, 2025, that did not

address the specific information requested.” Id. ¶ 43; see Ex. 12, FAC, Dkt. No. 1-

4 at 136 (June 11 letter from LoanCare); Ex. 13, FAC, Dkt. No. 1-4 at 138 (June 11

letter from LoanCare indicating the same “received your request for information”);

Ex. 15, FAC, Dkt. No. 1-4 at 142 (July 18 letter from LoanCare in response to

Plaintiff’s assertions of fraudulent foreclosure and other violations).

4. Unlawful Detainer

On January 16, 2025, Lakeview used unlawful detainer procedures to

“execute[] a forcible lockout of Plaintiff from the Property.” FAC ¶ 37; see Ex. 4-

B, Dkt. No. 1-4 at 54–62. Additionally, “Defendants intentionally destroyed and

converted Plaintiff’s personal property.” FAC ¶ 41.

B. Procedural History

Plaintiff filed his Complaint in San Bernardino County Superior Court on

July 17, 2025. Compl., Dkt. No. 1-3. He subsequently filed the FAC, bringing

thirteen causes of action against LoanCare, Lakeview, Barrett Daffin, Golden

Empire, and Doe Defendants. See generally FAC. On August 20, 2025, Plaintiff

filed a “Proof of Service by Mail and Electronic Service” in state court. Dkt. No.

1-5 at 1 (citation modified). On September 12, 2025, Defendants removed the

action to this Court, invoking this Court’s federal question jurisdiction. Plaintiff

suggests he attempted to serve Defendants again on September 15, 2025. See Dkt.

No. 17 at 34–35, 40–41, 46–47, 52–53.

Defendants filed their Motion to Dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6) on September 22, 2025. Dkt. No. 4. The next day, Plaintiff

filed the Motion to Remand. Dkt. No. 17. On September 29, 2025, Defendants

filed their Amended Motion to Dismiss for failure to state a claim pursuant to Rule

12(b)(6) and arguing they had not been properly served. Dkt. No. 23.

II. LEGAL STANDARD

A. Motion to Remand

“Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian

Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A defendant may remove a civil

action in state court to federal court if the federal court has original jurisdiction. 28

U.S.C. § 1441(a). Federal courts have original jurisdiction where an action arises

under federal law or where each plaintiff’s citizenship is diverse from each

defendant’s citizenship and the amount in controversy exceeds $75,000, excluding

interest and costs. Id. §§ 1331, 1332(a). “For a case to ‘arise under’ federal law, a

plaintiff’s well-pleaded complaint must establish either (1) that federal law creates

the cause of action or (2) that the plaintiff’s asserted right to relief depends on the

resolution of a substantial question of federal law.” K2 Am. Corp. v. Roland Oil &

Gas, LLC, 653 F.3d 1024, 1029 (9th Cir. 2011) (citations omitted). Additionally,

federal courts may hear supplemental state law claims if they “derive from a

common nucleus of operative fact.” Notrica v. Bd. of Sup’rs of Cnty. of San Diego,

925 F.2d 1211, 1213 (9th Cir. 1991) (quoting United Mine Workers of Am. v.

Gibbs, 383 U.S. 715, 725 (1966)); see 28 U.S.C. § 1367.

“The removal statute is strictly construed against removal jurisdiction, and

the burden of establishing federal jurisdiction falls to the party invoking the

statute.” See California ex rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 838 (9th

Cir.), amended on denial of reh’g by, 387 F.3d 966 (9th Cir. 2004). All defendants

who have been “properly joined and served” must join in the notice of removal. 28

U.S.C. § 1446(a); Destfino v. Reiswig, 630 F.3d 952, 956 (9th Cir. 2011).

B. Motion to Dismiss

Under Federal Rule of Civil Procedure 12(b)(6), a claim may be dismissed

because of a “failure to state a claim upon which relief can be granted.” Fed. R.

Civ. P. 12(b)(6). A dismissal under a 12(b)(6) motion can be based on either a

“lack of a cognizable legal theory” or on “the absence of sufficient facts alleged

under a cognizable legal theory.” Johnson v. Riverside Healthcare Sys., LP, 534

F.3d 1116, 1121 (9th Cir. 2008) (internal quotation marks and citation omitted).

On a 12(b)(6) motion, courts accept as true all well-pleaded allegations of material

fact and construe them in a light most favorable to the non-moving party. See

Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008).

To survive a motion to dismiss, the complaint “must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007)). “A pleading that offers labels and conclusions or a

formulaic recitation of the elements of a cause of action will not” suffice. Id.

(internal quotation marks and citation omitted). “Factual allegations must be

enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at

555.

A district court should provide leave to amend upon granting a motion to

dismiss unless it is clear that the complaint could not be saved by amendment; for

instance, leave to amend may be denied if amendment would be futile. See

Manzarek, 519 F.3d at 1034.

III. DISCUSSION

A. Motion to Remand

In their notice of removal, Defendants invoked the Court’s federal question

jurisdiction. Notice of Removal ¶¶ 6–7, Dkt. No. 1. The FAC on its face alleges

claims for violations of federal laws—the Real Estate Settlement Procedures Act

(“RESPA”), 12 U.S.C. § 2605, the Fair Debt Collection Practices Act (“FDCPA”),

15 U.S.C. § 1692, et seq., and 42 U.S.C. § 1983. See generally FAC. “Because

federal law creates the right of action and provides the rules of decision” for these

claims, “in 28 U.S.C. § 1331’s words, [they] plainly ‘aris[e] under’ the ‘laws . . . of

the United States.’” Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 377 (2012)

(citation omitted). “[T]here is no serious debate that a federally created claim for

relief is generally a ‘sufficient condition for federal-question jurisdiction.” Id.

(citation omitted).

Plaintiff acknowledges the existence of these federal causes of action but

argues they “are merely supplemental” and that the state law claims constitute the

“[c]ore dispute.” Mot. Remand at 3, Dkt. No. 17. However, significant portions of

the factual allegations appear to be pled for the purpose of alleging the federal

causes of action. The Court has original jurisdiction over claims seeking to

vindicate rights under the federal statutes pled here, even if a plaintiff argues “[h]e

merely seeks remedies under California law.” Robinson v. Enenmoh, 2012 WL

1077023, at *1 (E.D. Cal. Mar. 29, 2012); see also, e.g., Sprau v. City of Surprise,

2012 WL 1987186, at *1 (D. Ariz. June 4, 2012) (denying a motion to remand

because the complaint stated a claim for a § 1983 violation, even though

“[p]laintiff argued the alleged constitutional rights violations do not form ‘the crux’

of his case”); Goulatte v. CitiMortgage, Inc., 2012 WL 12888846, at *3 (C.D. Cal.

July 2, 2012) (“Contrary to Plaintiff’s assertion, the Complaint clearly pleads

causes of action under the Real Estate Settlement Procedures Act and the Fair Debt

Collection Practices Act, both federal statutes. These causes of action ‘arise under’

federal law, thereby conferring federal question jurisdiction over them.”).6

Plaintiff also argues removal is improper because it “was effected without

obtaining consent from all properly served defendants”—particularly, Barrett

Daffin,7 Golden Empire, or the Doe Defendants. Mot. Remand at 2–3. Plaintiff

also apparently takes issue with Defendants removing to this Court and at the same

time maintaining they have not been properly served. See id. at 3.

At the time of removal, none of the defendants in this action had been

properly served.8 Plaintiff’s purported mail service is insufficient because the

record does not indicate any defendants returned the acknowledgement of service.

“Code of Civil Procedure section 415.30, . . . which authorizes service of summons

by mail, expressly predicates the efficacy of such service upon the execution and

return of an acknowledgment of service. If the party addressed fails to do so, there

is no effective service . . . .” Thierfeldt v. Marin Hosp. Dist., 35 Cal. App. 3d 186,

199 (1973). That Defendants may have received actual notice of the action does

not cure service that did not substantially comply with the rule. See, e.g.,

Thongnoppakun v. Am. Exp. Bank, 2012 WL 1044076, at *2 (C.D. Cal. Mar. 26,

2012) (“service of a summons and complaint by mail does not constitute proper

service on a defendant, even if that defendant has actual notice that a complaint has

6 Plaintiff does not, for example, argue that the federal claims are “insubstantial.”

See, e.g., Cook v. Peter Kiewit Sons Co., 775 F.2d 1030, 1035 (9th Cir. 1985)

(“Under the substantiality doctrine, the district court lacks subject matter

jurisdiction when the question presented is too insubstantial to consider.”). In

addition, the Court has supplemental jurisdiction over the state law claims. 28

U.S.C. § 1367(a).

7 Defendant Barrett Daffin has since filed an answer in this court. Dkt. No. 27.

8 Plaintiff’s waiver argument is discussed below. See Mot. Remand at 3.

been filed against that defendant.” (citing Mason v. Genisco Tech. Corp., 960 F.2d

849, 852 (9th Cir. 1992))).

Because none of the named defendants in this action had been properly

served, Defendants were not required to obtain the other defendants’ joinder in the

Notice of Removal. Destfino, 630 F.3d at 956–57; see also Emrich v. Touche Ross

& Co., 846 F.2d 1190, 1193 n.1 (9th Cir. 1988) (“Ordinarily, under 28 U.S.C. §

1446(a), all defendants in a state action must join in the petition for removal,

except for nominal, unknown or fraudulently joined parties. This general rule

applies, however, only to defendants properly joined and served in the action.”

(citations omitted)).

Accordingly, the removal was both substantively and procedurally proper,

and Plaintiff’s motion to remand is denied.

B. Motion to Dismiss

Defendants move to dismiss the claims against them for failure to state a

claim under Rule 12(b)(6) as well as for insufficient service under Rule 12(b)(5).9

In his Opposition, Plaintiff argues the Amended Motion to Dismiss should be

denied for Defendants’ failure to comply with Local Rule 7-310 and denied on the

9 The Amended Motion to Dismiss cites Rule 12(b)(4). Amended Mot. at 8, 20.

However, because the motion attacks the method of service, the Court interprets it

as a motion under Rule 12(b)(5). See 5 Wright & Miller’s Federal Practice &

Procedure § 1353 (4th ed. 2024) (“An objection under Rule 12(b)(4) concerns the

form of the process rather than the manner or method of its service. Technically,

therefore, a Rule 12(b)(4) motion is proper only to challenge noncompliance with

the provisions of Rule 4(b) or any applicable provision incorporated by Rule 4(b)

that deals specifically with the content of the summons. A Rule 12(b)(5) motion is

the proper vehicle for challenging the mode of delivery, the lack of delivery, or the

timeliness of delivery of the summons and complaint.” (footnotes omitted)).

10 Neither party properly complied with Local Rule 7-3 before filing any of their

motions. Plaintiff, even though appearing pro se, was required to meet and confer

prior to filing the motion to remand. Defendants, regardless of whether they were

provided with a copy of this Court’s Standing Order, were similarly required to

meet and confer prior to filing the Motion to Dismiss, which they admittedly did

not do. Dkt. No. 4; see Reply to Amended Mot. at 1, Dkt. No. 28. Although

counsel for Defendants declared that the parties met and conferred six days prior to

filing the Amended Motion, it does not appear to have been as complete of a

merits because he has stated plausible claims for quiet title, wrongful foreclosure,

RESPA violations, and Due Process violations brought pursuant to 42 U.S.C. §

1983. Opp’n at 10–12.11 Plaintiff does not otherwise respond to Defendants’

arguments regarding the remaining claims, which the Court construes as waiver or

consent to the granting of the motion on those grounds, and the Court therefore

grants the motion as to those counts. See, e.g., Hartranft v. Encore Cap. Grp., Inc.,

543 F. Supp. 3d 893, 913 (S.D. Cal. 2021) (“[W]here a non-moving party fails to

address an argument raised by the moving party in the opposition brief, the Court

may consider any arguments unaddressed by the non-moving party as waived.”);

Shakur v. Schriro, 514 F.3d 878, 892 (9th Cir. 2008) (failure to raise an issue in an

opposition may be deemed an abandonment of that issue); see also C.D. Cal. R. 7-

12, 7-9. For the following additional reasons, the Amended Motion to Dismiss is

granted in part and denied in part.

1. Documents Attached to FAC and Judicial Notice

A review of a motion to dismiss is generally “limited to the complaint,

materials incorporated into the complaint by reference, and matters of which the

court may take judicial notice.” Metzler Inv. GMBH v. Corinthian Colls., Inc., 540

F.3d 1049, 1061 (9th Cir. 2008) (citation omitted). The court may judicially notice

facts that are not subject to reasonable dispute because they are either “generally

known within the trial court’s territorial jurisdiction” or “can be accurately and

readily determined from sources whose accuracy cannot reasonably be

questioned.” Fed. R. Evid. 201(b). “Even if a document is not attached to a

complaint, it may be incorporated by reference into a complaint if the plaintiff

discussion as is contemplated by the rules and this Court’s Standing Order, as that

discussion did not occur until October 6 and 7, 2025, and also was conducted over

email and by phone. See Amended Mot. at 22; see also Reply at 1; Declaration of

Thomas K. Agawa ¶¶ 5–6, Dkt. No. 24; accord Pl.’s Decl., ¶¶ 2–3. Nonetheless, in

the interest of judicial economy and efficiency, and since the matters are fully

briefed and neither party claims an inability to timely or fully respond, the Court

proceeds to address the issues raised by the parties. The parties are admonished

that failure to comply with all applicable rules in the future may result in the

sanctions.

11 Plaintiff also argues he has stated a claim for FDCPA violations, but that claim is

not against LoanCare or Lakeview and is not included in the Amended Motion to

Dismiss. Accordingly, the Court does not reach whether the FAC states a claim for

FDCPA violations against Barrett Daffin and Golden Empire.

refers extensively to the document or the document forms the basis of the

plaintiff’s claim.” United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).

There are twenty-four exhibits attached to the FAC and incorporated by

reference. See FAC at 27; Dkt. No. 1-4 at 28 to Dkt. No. 1-6 at 4. Defendants

request the Court to take judicial notice of eight additional exhibits. Exs. 1–8,

Amended Mot.; see also Defs.’ Request for Judicial Notice, Dkt. No. 5.

Exhibit 1 to the FAC, which is substantially similar to Defendants’ Exhibit 1,

is the Deed of Trust to the Property. Because it is attached to the FAC, the Court

considers this exhibit and denies Defendants’ request for judicial notice of Exhibit

1 as moot.

Additionally, Defendants request the Court take judicial notice of Exhibit 2,

the assignment of the deed of trust; Exhibit 3, a Substitution of Trustee instrument;

Exhibit 4, Notice of Default; Exhibit 5, Notice of Trustee’s Sale; Exhibit 6,

Trustee’s Deed Upon Sale; Exhibit 7, the Judgment in the unlawful detainer action;

and Exhibit 8, the Return on Writ of Possession. Exs. 2–8, Amended Mot. All of

these exhibits were filed with the San Bernardino County Superior Court or

electronically recorded in the official records of San Bernardino County, and

Plaintiff does not oppose the requests for judicial notice or question the documents’

authenticity. See generally Opp’n. Accordingly, the Court takes judicial notice of

Defendants’ Exhibits 2 through 8. See, e.g., Velazquez v. GMAC Mortg. Corp., 605

F. Supp. 2d 1049, 1057 (C.D. Cal. 2008).

Plaintiff attaches several Exhibits to his Opposition. The Court interprets

this liberally as Plaintiff’s request for judicial notice of the attached exhibits.

Defendants object to Plaintiff’s request for judicial notice of the Exhibits, question

the authenticity of the Exhibits, and contend they contain inadmissible hearsay.

See Reply at 3–4. Because consideration of Plaintiff’s exhibits does not aid in the

resolution of the motion, the Court denies Plaintiff’s request for judicial notice.

See, e.g., Bryan v. City of Carlsbad, 297 F. Supp. 3d 1107, 1115 (S.D. Cal. 2018)

(“[T]he Court need not take notice of documents that do not provide any additional

relevant information, even if they would otherwise be the proper subject of judicial

notice.” (citing Adriana Int’l Corp. v. Thoeren, 913 F.2d 1406, 1410 n.2 (9th Cir.

1990)).

2. Waiver of Improper Service

Though Defendants did not raise the argument in their Motion to Dismiss, in

their Amended Motion to Dismiss, they argue service was improper because they

never returned a written acknowledgment of receipt. Amended Mot. at 21.

The defense of improper service of process is waived if not raised by motion

or answer. See Fed. R. Civ. P. 12(h)(1); Resol. Tr. Corp. v. Starkey, 41 F.3d 1018,

1021 (5th Cir. 1995); accord In re Roberts, 241 F. App’x 420, 422 (9th Cir.

2007). However, the Court has discretion to permit a party to expand the grounds

of a Rule 12 motion “well in advance of a hearing.” Bechtel v. Liberty Nat. Bank,

534 F.2d 1335, 1341 n.8 (9th Cir. 1976) (rejecting argument that defendant

“waived venue by waiting more than two months to amend its original motion to

dismiss” and noting that Rule 12(h) “does not in any way prevent a judge in his

discretion from permitting a party to expand the grounds of motion well in advance

of a hearing” (citation omitted)).

Similarly, here, Defendants filed the Amended Motion to Dismiss shortly

after filing their original Motion to Dismiss and well in advance of the October 29,

2025, hearing. The Court in its discretion considers Defendants’ arguments

regarding insufficient service of process.

In his Opposition, Plaintiff concedes that service was improper and requests

an extension of time to effect proper service. Opp’n at 11. Defendants do not

oppose this. See Reply at 2. In cases of insufficient service, the Court has

discretion to dismiss an action or to quash service. S.J. v. Issaquah Sch. Dist. No.

411, 470 F.3d 1288, 1293 (9th Cir. 2006). In this case, the Court denies the

Amended Motion to the extent it seeks dismissal under Rule 12(b)(5), quashes

service on LoanCare and Lakeview, and grants Plaintiff thirty (30) days from the

date of this Order to effect proper service on them and file a proof of service.

3. Wrongful Foreclosure and Quiet Title (Counts I and II)

Plaintiff alleges a wrongful foreclosure claim against all defendants because

“Defendants conducted a non-judicial foreclosure sale that was procedurally and

substantively defective” for several reasons, including that it was based on an

unsigned loan document and because of notice issues, among other things. FAC ¶¶

54–55. Plaintiff also alleges a quiet title claim against all defendants, claiming the

“Trustee’s Deed is void and of no legal effect” for the same reasons. Id. ¶¶ 47–52.

The elements of a wrongful foreclosure cause of action are: (1) [T]he trustee

or mortgagee caused an illegal, fraudulent, or willfully oppressive sale of

real property pursuant to a power of sale in a mortgage or deed of trust; (2)

the party attacking the sale (usually but not always the trustor or mortgagor)

was prejudiced or harmed; and (3) in cases where the trustor or mortgagor

challenges the sale, the trustor or mortgagor tendered the amount of the

secured indebtedness or was excused from tendering.

Sciarratta v. U.S. Bank Nat’l Assn., 247 Cal. App. 4th 552, 561–62 (2016)

(alteration in original) (internal quotations and citations omitted). “A foreclosure

initiated by one with no authority to do so is wrongful for purposes of such an

action.”12 Yvanova v. New Century Mortg. Corp., 62 Cal. 4th 919, 929. “[A]

borrower may base a wrongful foreclosure claim on allegations that the foreclosing

party acted without authority because the assignment by which it purportedly

became beneficiary under the deed of trust was not merely voidable but void.” Id.

“A void contract is without legal effect.” Id. “A voidable transaction, in contrast,

‘is one where one or more parties have the power, by a manifestation of election to

do so, to avoid the legal relations created by the contract, or by ratification of the

contract to extinguish the power of avoidance.’” Id. at 930 (citation omitted). A

“borrower who has suffered a nonjudicial foreclosure does not lack standing to sue

for wrongful foreclosure based on an allegedly void assignment merely because he

or she was in default on the loan and was not a party to the challenged

assignment.” Id. at 924.

12 Because of some apparent confusion by Plaintiff regarding the deed of trust, the

Court directs Plaintiff to the general discussion in Yvanova regarding deeds of trust

and nonjudicial foreclosure: “A deed of trust to real property acting as security for

a loan typically has three parties: the trustor (borrower), the beneficiary (lender),

and the trustee. ‘The trustee holds a power of sale. If the debtor defaults on the

loan, the beneficiary may demand that the trustee conduct a nonjudicial foreclosure

sale.’. . . The trustee starts the nonjudicial foreclosure process by recording a notice

of default and election to sell . . . .A promissory note is a negotiable instrument the

lender may sell without notice to the borrower. The deed of trust, moreover, is

inseparable from the note it secures, and follows it even without a separate

assignment. . . . A deed of trust may thus be assigned one or multiple times over the

life of the loan it secures.” 62 Cal. 4th at 92–28 (citations omitted).

An action to quiet title can be brought “to establish title against adverse

claims to real or personal property or any interest therein.” Cal. Civ. Proc. Code §

760.020. Under California Code of Civil Procedure section 761.020,

a plaintiff’s complaint “must include” all of the following as elements

of the claim: (1) a description of the property that is the subject of the

action; (2) the title of the plaintiff as to which a determination is sought

and the basis of the title; (3) “[t]he adverse claims to the title of the

plaintiff against which a determination is sought”; (4) the date as of

which the determination is sought; and (5) a prayer for the

determination of plaintiff's title “against the adverse claims.”

Weeden v. Hoffman, 70 Cal. App. 5th 269, 294 (2021) (alteration in original). In

addition, a “plaintiff seeking to quiet title in the face of a foreclosure must allege

tender or an offer of tender of the amount borrowed.” Mangindin v. Wash. Mut.

Bank, 637 F. Supp. 2d 700, 712 (N.D. Cal. 2009) (quoting Arnolds Mgmt. Corp. v.

Eischen, 158 Cal. App. 3d 575, 578 (1984)).

The facts alleged in the FAC and the judicially noticeable documents

establish the following. On July 21, 2023, Plaintiff executed a deed of trust

securing a note for $372,135 on the Property. Ex. 1, FAC. The lender was Golden

Empire; the trustee was First American Title Company; and the beneficiary was

MERS, as nominee. Id. On February 1, 2024, a corporate assignment of deed of

trust was recorded, whereby MERS assigned the deed of trust to Lakeview. Ex. 2,

Amended Mot. On February 26, 2024, a substitution of trustee was recorded,

whereby Barrett Daffin was substituted as trustee for First American Title

Company. Ex. 3, Amended Mot. On March 8, 2024, a notice of default was

recorded by Barrett Daffin. Ex. 4, Amended Mot. On June 20, 2024, a notice of

trustee’s sale was recorded by Barret Daffin. Ex. 5, Amended Mot.

Plaintiff’s primary argument relates to Golden Empire’s efforts to

communicate with him regarding the lack of insurance. Opp’n at 5. Plaintiff also

relies on communications following the sale regarding insurance to argue that the

sale was void. Id. at 6. However, Plaintiff does not plausibly allege that the

foreclosure sale was based on an unsigned loan document. Rather, the judicially

noticeable documents demonstrate the chain of title, as discussed above. On these

facts, Plaintiff has not plausibly alleged a void contract or transaction.

On the other hand, Plaintiff does appear to allege that the sale is void due to

deficient notice.13 FAC ¶¶ 26–29, 50, 55. Plaintiff also argued this in his

Opposition.14 Opp’n at 8. Defendants do not address these allegations with regard

to either the wrongful foreclosure or quiet title causes of action, and therefore the

Court does not reach them.15 As to the quiet title cause of action, Defendants only

argue that Plaintiff fails to plead tender. However, if a plaintiff “properly allege[s]

the foreclosure was void and not merely voidable, tender [is] not required to state a

cause of action for quiet title or for cancellation of instruments.” Sciarratta, 247

Cal. App. 4th at 568.

Accordingly, the Court denies Defendants’ motion to dismiss Counts I and

II.

4. Motion to Dismiss Claim for RESPA Violations (Count VI)

Plaintiff alleges a claim for violation of RESPA against LoanCare.

LoanCare does not dispute that it is a loan servicer within the meaning of the

statute. Instead, LoanCare argues that Plaintiff did not send it any inquiries that

triggered a duty to respond.16

13 See, e.g., Little v. Cfs Serv. Corp., 188 Cal. App. 3d 1354, 1359 (1987) (“Where

there has been a notice defect and no conclusive presumption language in the deed,

the sale has been held void.”); Barrionuevo v. Chase Bank, N.A., 885 F. Supp. 2d

964, 971 (N.D. Cal. 2012) (“Where a notice defect provides the basis for

challenging a sale under a deed of trust, . . . California courts examine in detail the

deed of trusts language to determine whether it contains ‘conclusive presumption

language in the deed’ regarding notice defects that would render the sale merely

voidable as opposed to void.”) (citation omitted)).

14 Defendant is incorrect that these are new allegations. See Reply at 6.

15 For the first time in reply, Defendants argue that “Plaintiff contends that a single

address on the Notice of Default vitiates the entire foreclosure proceeding. This is

patently incorrect.” Reply at 6. Defendants cite to no authority and ignore the

allegations in the FAC.

16 Because LoanCare has not demonstrated that its designated address at which it

receives QWRs is in the record, the Court declines to consider at this time its

argument that Plaintiff’s correspondences were not sent to the correct address and

therefore were not QWRs. Cf. Roth v. CitiMortgage Inc., 756 F.3d 178, 182 n.4

“RESPA requires the servicer of a federally related mortgage loan to provide

a timely written response to inquiries from borrowers regarding the servicing of

their loans.” Medrano v. Flagstar Bank, FSB, 704 F.3d 661, 665 (9th Cir. 2012)

(citing 12 U.S.C. § 2605(e)(1)(A), (e)(2)). A response to an inquiry is only

required if the borrower’s written inquiry “(1) reasonably identifies the borrower’s

name and account, (2) either states the borrower’s ‘reasons for the belief . . . that

the account is in error’ or ‘provides sufficient detail to the servicer regarding other

information sought by the borrower,’ and (3) seeks ‘information relating to the

servicing of [the] loan.’” Id. at 666 (alteration in original) (quoting 12 U.S.C. §

2605(e)(1)(A)–(B)). “Letters challenging only a loan’s validity or its terms are not

qualified written requests that give rise to a duty to respond under [the statute].”

Id. at 667. Because a claim for a RESPA violation hinges on whether the plaintiff

sent the defendant a qualified written request (“QWR”), some courts have required

plaintiffs either to attach the purported QWR to the complaint or plead the contents

of the QWR with specificity, “such as when the letter was sent and to whom it was

directed, why it was sent, and the contents of the letter—[so] that the Court may

determine if the letter qualifies as a QWR.” Tanasi v. CitiMortgage, Inc., 257 F.

Supp. 3d 232, 263 (D. Conn. 2017) (alteration in original).

Here, Plaintiff alleges he sent letters demanding “debt validation” on

December 27, 2023, and January 9, 2024, but he does not attach those letters to the

FAC or otherwise describe their contents or whether they were sent to LoanCare.

FAC ¶ 23. Accordingly, Plaintiff has not sufficiently alleged he sent QWRs to

LoanCare on those dates.

Plaintiff attaches his June 1, 2025, letter to Barrett Daffin, but the letter is

not alleged to have been sent to LoanCare in order to trigger its duty to respond.

Finally, Plaintiff attaches his June 19, 2025, letter to LoanCare’s Legal

Department. This letter “demand[s] . . . full response to all issues in original

QWR.” Ex. 14, FAC, Dkt. No. 1-4 at 140 (citation modified). Construing the

letter in the light most favorable to Plaintiff, it states the name and account number

of the borrower, but there is no indication that the letter included copies of the

“original QWR” or otherwise provided Plaintiff’s reasons for the belief that his

account was in error, or sufficient detail regarding other information sought by

Plaintiff, or that the letter sought information relating to the servicing of the loan.

(2d Cir. 2014) (per curiam) (noting the designated address was set out in a

document attached to the complaint, so the address was properly before the court).

The letter’s demands for information regarding “void foreclosure documents,”

“dual-tracking evidence,” and “fraudulent origination,” as well as the demands to

“cease all foreclosure threats” and “correct credit reporting,” id. (citations

modified), do not relate to LoanCare’s servicing of the loan but instead “concern[]

only the loan’s validity and terms,” Medrano, 704 F.3d at 667. Thus, Plaintiff fails

to sufficiently allege a QWR.

Because Plaintiff has not sufficiently alleged that he sent any QWR to

LoanCare, his claim for violations of RESPA is dismissed with leave to amend.

5. 42 U.S.C. § 1983 (Count XI)

Plaintiff brings a claim against Defendants for a violation of 42 U.S.C. §

1983, alleging that Defendants “acted under color of state law by utilizing the court

system and state foreclosure procedures to deprive Plaintiff of his constitutional

rights.” FAC ¶ 98. Specifically, Plaintiff alleges that “Defendants’ use of

fraudulent unlawful detainer procedures deprived Plaintiff of his Fourteenth

Amendment right to due process.” Id. ¶ 99.

“The requirements of procedural due process apply only to deprivation of

interests encompassed by the Fourteenth Amendment’s protection of liberty and

property.” Board of Regents v. Roth, 408 U.S. 564, 569 (1972). “[T]he conduct

allegedly causing the deprivation of a federal right [must] be fairly attributable to

the State.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). “Federal

courts have consistently held a private party’s pursuit of state court unlawful

detainer proceedings does not constitute state action.” Neher v. Davis, 2025 WL

448937, at *4 (E.D. Cal. Feb. 10, 2025) (citing cases). Nor does a private party’s

general engagement in state court litigation render it a state actor. See id. (citing

Ohno v. Yasuma, 723 F.3d 984, 996 (9th Cir. 2013)). Thus, Plaintiff’s allegations

that Defendants used the state court processes of unlawful detainer and foreclosure

are insufficient. Because there is no indication that Plaintiff could plead facts to

remedy this deficiency, this claim is dismissed without leave to amend.

IV. CONCLUSION

For the foregoing reasons, the Court denies the Motion to Remand and

Motion to Dismiss. The Court denies the Amended Motion to Dismiss to the

extent it seeks dismissal for improper service, quashes service on LoanCare and

Lakeview, and grants Plaintiff thirty (30) days from the date of this Order to effect

proper service on them and file a proof of service. The Court further grants in part

and denies in part the Amended Motion to Dismiss as stated herein.

Any Amended Complaint must be filed within fourteen (14) days of the date

of this Order.

IT IS SO ORDERED.