Opinion
ORDER DENYING GREENPOINT'S MOTION TO DISMISS WITHOUT PREJUDICE (Document 14) ORDER REQUIRING PLAINTIFF TO SUBMIT SECOND AMENDED COMPLAINT
DENNIS L. BECK, Magistrate Judge
Defendant Greenpoint Mortgage Funding, Inc. ("Greenpoint") filed the instant motion to dismiss on June 25, 2007. The matter was heard on August 17, 2007, before the Honorable Dennis L. Beck, United States Magistrate Judge. Randall Rumph appeared on behalf of Plaintiff Donell Glen Stetler ("Plaintiff"). Ted Buell appeared on behalf of Greenpoint.
The parties consented to the jurisdiction of the Magistrate Judge for all purposes, including trial, and the case was reassigned to the undersigned on May 31, 2007.
BACKGROUND
Plaintiff filed the instant complaint on January 22, 2007. He names Greenpoint and Patrick Mitchell ("Mitchell") as Defendants and alleges causes of action under the Real Estate Settlement Procedure Act ("REPSA"), 12 U.S.C. § 2601, et seq.
Plaintiff filed a first amended complaint ("FAC") on March 28, 2007. Plaintiff borrowed funds from Greenpoint on January 26, 2006, pursuant to two loan agreements secured by residential real property. The transactions at issue took place in Kern County, and the loans are secured by property located in Kern County. In the first cause of action for violation of the REPSA Antikickback provision, 12 U.S.C. § 2607, Plaintiff alleges that Greenpoint paid Mitchell "a fee, kickback or thing of value related to making the loans." In the second cause of action, Plaintiff alleges that Mitchell breached his fiduciary duties by failing to inform Plaintiff that he was obtaining money from Greenpoint, failing to inform Plaintiff that the loan was a reverse amortization loan or that the payments increased, informing Plaintiff that the loans were used on all his properties, and informing him that they were the best deal. In the third cause of action for constructive fraud, Plaintiff alleges that Mitchell intentionally failed to disclose that he was receiving funds from escrow by Greenpoint and that the loan was a reverse amoritization loan. In the fourth cause of action for violation of the California Unfair Trade Practices Act, Plaintiff alleges that the required settlement statement failed to disclose that Mitchell would be receiving funds from escrow. Plaintiff seeks statutory, exemplary and punitive damages as well as attorneys' fees and costs.
Defendant Mitchell filed his answer on May 10, 2007.
On June 25, 2007, Greenpoint filed the instant motion to dismiss the FAC. Although Greenpoint moves to dismiss itself from all causes of action, Plaintiff states in his July 10, 2007, opposition that Greenpoint is only named in the first cause of action. Greenpoint filed its reply on August 10, 2007.
DISCUSSION
A. Legal Standard
Dismissal under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim may be granted if the cause of action lacks a cognizable legal theory or there is an absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dept. , 901 F.2d 696, 699 (9th Cir. 1990). In considering a motion to dismiss for failure to state a claim, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees , 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the party opposing the motion, and resolve all doubts in the pleader's favor. Jenkins v. McKeithen , 395 U.S. 411, 421, reh'g denied, 396 U.S. 869 (1969), Parks School of Business, Inc. v. Symington , 51 F.3d 1480 1484 (9th Cir. 1995). A motion to dismiss for failure to state a claim should not be granted unless it appears beyond doubt that plaintiff can prove no set of facts in support of the claim that would entitle him to relief. See Hishon v. King & Spalding , 467 U.S. 69, 73 (1984)(citing Conley v. Gibson , 355 U.S. 41, 45-46 (1957)); see also Palmer v. Roosevelt Lake Log Owners Ass'n , 651 F.2d 1289, 1294 (9th Cir. 1981).
Greenpoint's motion to dismiss is based on its argument that the only allegation against it, that it violated REPSA by "paying Mitchell a fee, kickback, or thing of value relating to the making of the Loans, " is a vague, ambiguous and conclusory allegation that fails to state a claim against it. FAC, at 2.
While Greenpoint titles its motion as a motion to dismiss, it actually seeks a more definite statement and confirmed as much as the hearing. Although Plaintiff argues that the FAC is compliant with Federal Rule of Civil Procedure 8, the single, conclusory allegation does not provide sufficient information to provide Greenpoint with the facts and circumstances of the events at issue.
Accordingly, the Court DENIES Greenpoint's motion to dismiss without prejudice but ORDERS Plaintiff to file Second Amended Complaint providing a more definite statement as to the First Cause of Action within fifteen (15) days of the date of service of this order.
IT IS SO ORDERED.