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Grealish v. American Brokers Conduit

September 16, 2009

JOHN PETER GREALISH, PLAINTIFF,
v.
AMERICAN BROKERS CONDUIT; COUNTRYWIDE MORTGAGE; GMAC MORTGAGE CORP., DEFENDANT.



The opinion of the court was delivered by: David Sam Senior Judge United States District Court

MEMORANDUM DECISION

INTRODUCTION

On or about December 12, 2006, American Brokers Conduit (ABC) loaned Mr. Grealish $1,000,000 to acquire property located at 2068 E. Bear Mountain Drive in Draper, Utah. The loan was secured by a trust deed on the property. On or about December 26, 2006 ABC made a second loan to Mr. Grealish for $300,000, secured by a Deed of Trust against the same property. ABC assigned the beneficial interest in the First Trust Deed to Defendant Countrywide Mortgage and in the Second Trust Deed to Defendant GMAC Mortgage. Mr. Grealish filed this lawsuit claiming that ABC failed to verify his income and assets, and that despite his agreement to purchase the property for $1,300,000, the actual value was far less. Countrywide and GMAC both filed motions to dismiss. Because Plaintiff's claims are based on conduct of ABC or its agents that occurred at the origination of the loans, and because the complaint fails to establish any act or conduct of Countrywide or GMAC that would form the basis of any claims, the Court hereby grants the Motions to Dismiss.

ANALYSIS

Under rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court must accept the well-pled allegations of the Amended complaint as true. See, e.g., Ruiz v. McDonnell, 299 F.3d 1173, 1181 (10th Cir. 2002). A cause of action will be dismissed under Rule 12(b)(6) when "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. When considering a motion to dismiss, the court is to accept all of the factual allegations in the complaint as true and ask whether, in these circumstances, dismissal of the complaint is appropriate. Legal conclusions, deductions, and opinions couched as facts are, however, not given such a presumption. Caprin v. Simon Transp. Servs., 112 F.Supp.2d 1251, 1254-55 (D. Utah 2000)(citations and quotations omitted).

Mr. Grealish admits that all of his allegations relate to conduct that occurred prior to Countrywide and GMAC's involvement in this transaction. He attempts to cure this defect by including a number of conclusory allegations of conspiracy, "agency" and "control," without any facts to support these allegations. In analyzing a complaint, "the court need accept as true only the plaintiff's well-pleaded factual contentions, not his conclusory allegations." Amoco Production Co. V. Aspen Group, 25 F.Supp.2d 1162, 1164 (D. Colo. 1998). Mr. Grealish must allege sufficient facts to "nudge [his] claims across the line from conceivable to plausible." Bell Atlantic Corporation, et. al. v. Twombley, 127 S.Ct. 1955, 1964-65 and 1969 (2007). Here there are no facts alleged which would support Mr. Grealish's claims against Countrywide or GMAC, and the claims are not plausible. There is no mention of which actions (or inactions) were allegedly taken by Countrywide or GMAC, on what dates, or how such actions or inactions allegedly harmed Mr. Grealish.

A. Plaintiff's Truth in Lending Claims Do Not Apply to this Loan and are Barred by the Statute of Limitations

Mr. Grealish's Truth-in-Lending claim ("TILA") fails as a matter of law. Any claim for violation of TILA must be brought "within one year from the date of the occurrence of the violation." 15 U.S.C. § 1640(e). Here, the violation, if any, occurred at loan closing in December 2006. Plaintiff's original complaint was not filed until October 2008. Plaintiff's TILA claim is barred by the statute of limitations. Also, 12 CFR 226.32, which Plaintiff relies on for his rescission claim, does not apply to any "residential mortgage transaction." See 12 CFR § 226.32(a)(2)(i). Assuming that the property ...


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