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Prescott v. BNC Mortgage

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA


April 17, 2009

DUKE PRESCOTT, PLAINTIFF,
v.
BNC MORTGAGE, INC., A DELAWARE CORPORATION; WELLS FARGO BANK, N.A.; AMERICA'S SERVICING COMPANY, ALSO KNOWN AS ASC COMPANY, AN UNKNOWN BUSINESS ENTITY; NDEX WEST, LLC, A DELAWARE LIMITED LIABILITY COMPANY; AND DOES 1 THROUGH 50, INCLUSIVE, DEFENDANTS.

ORDER GRANTING WELLS FARGO'S MOTION TO DISMISS

The Motion of defendants Wells Fargo Bank, N.A. d/b/a America's Servicing Company ("Wells Fargo") for an order dismissing the Complaint of plaintiff Duke Prescott ("Plaintiff"), having been duly noticed and served on all interested parties All arguments, papers and evidence considered and good cause appearing, the Court hereby FINDS:

1. Under California law, Plaintiff cannot challenge the foreclosure of his property since he fails to allege that he has offered or will offer to tender the full amount outstanding on his mortgage loan with Wells Fargo. United States Cold Storage v. Great W. Sav. & Loans Ass'n, secured by real property. Id. § 1632(b)(2). Nor do any of the exemptions in subpart (b)(4) apply since Wells Fargo is a national bank Cal.Bus.&Prof.Code § 10133.1(a)(1); Cal.Fin.Code §§ 22050, 22002.

2. California Civil Code section 1632 does not apply since Plaintiff's loan was preempted by the National Bank Act and its implementing regulations. 12 C.F.R.

3. As against defendant Wells Fargo, California Financial Code section 4973 is § 7.4008(d)(2)(i)-(viii); see Evans v. Chase Bank USA, N.A., 267 Fed.Appx. 692, 693, 2008 WL 467801, *1 (9th Cir. 2008);

4. The purported violations of Home Ownership and Equity Protection Act, U.S.C. § 1637, the Truth in Lending Act, 15 U.S.C. §§ 1601-1667f, Regulation Z, Code of 12 Federal Regulations, part 226.23(a)(3), and the Federal Trade Commission Act, 15 U.S.C. §§ 41- 58 are not sufficiently alleged under Federal Rule of Civil Procedure 8(a);

5. Under California law, possession of the original promissory note is not required to commence or proceed with non-judicial foreclosure. Putkkuri v. ReconTrust Co., 2009 WL 32567, *2 (S.D. Cal. 2009); Candelo v. NDex West, LLC, 2008 WL 5382259, *4 (E.D. Cal. 2008); Neal v. Juarez, 2007 WL 2140640, *8 (S.D. Cal. 2007) (citing R.G. Hamilton Corp. v. Corum, 218 Cal. 92, 97, 21 P.2d 413 (1933); Cal. Trust Co. v. Smead Inv. Co., 6 Cal.App.2d 432, 435, 44 P.2d 624 (1935));

6. Plaintiff has not alleged any prejudice as a result of the alleged untimely service of the foreclosure notices. See Knapp v. Doherty, 123 Cal.App.4th 76, 94, 20 Cal.Rptr.3d 1 (2004);

7. No quiet title claim is pleaded since the complaint is not verified. Cal.Civ.P.Code § 761.020; see Lewis v. Superior Court, 30 Cal.App.4th 1850, 1866, 37 Cal.Rptr.2d 63 (1994);

8. Plaintiff has not alleged that he made a written demand for a payoff demand statement. Cal.Civil Code § 2943(a)(2)(H)(5), (b)(1);

9. Under California law, injunctive relief is not an independent cause of action but a remedy. MaJor v. Miraverde Homeowners Ass'n, Inc., 7 Cal.App.4th 618, 623, 9 Cal.Rptr.2d 237 (1992);

10. Plaintiff's claim for "Damages" is not actionable since there is no such cause of action and Plaintiff alleges no statutory basis for the recovery of damages.

WHEREFORE, Wells Fargo's Motion to Dismiss is GRANTED WITH LEAVE TO AMEND as to the declaratory relief claim alleging violations of federal law, and claims to set aside/void or cancel the foreclosure notices, quiet title and accounting.

The Motion is GRANTED WITHOUT LEAVE TO AMEND as to the declaratory relief alleging violations of California's Civil Code § 1632 and Financial Code § 4970 et seq. and the injunctive relief and damages claims.

Plaintiff shall have 20 days from the date of this Order to file an amended complaint.

Plaintiff is required to provide a more definite statement of his claim for violations of federal law. Fed.R.Civ.P. 12(e).

IT IS SO ORDERED.

20090417

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