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Phillips v. Wells Fargo Bank

November 6, 2009

BRIAN PHILLIPS, PLAINTIFF,
v.
WELLS FARGO BANK, N.A., AS TRUSTEE FOR THE REGISTERED HOLDERS OF STRUCTURED ASSET SECURITIES CORPORATION MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-OSI; OCWEN LOAN SERVICING LLC, DEFENDANTS.



The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court

ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE

Plaintiff filed his First Amended Complaint ("FAC") in this action on September 17, 2009. (Doc. No. 21.) On October 1, 2009, Defendants filed a motion to dismiss Plaintiff's Amended Complaint for failure to state a claim. (Doc. No. 23.) Under Local Civil Rule 7.1(e)(2), Plaintiff's opposition to the motion to dismiss was due on October 26, 2009. Plaintiff failed to file a timely opposition, or to ask for an extension of time to oppose the motion. Instead, on November 2, 2009, Plaintiff filed an ex parte motion for leave to file his response in opposition late. (Doc. No. 26.) On the same day, Plaintiff filed his response in opposition to defendants' motion to dismiss. (Doc. No. 27.) Defendants filed their reply in support of motion to dismiss on November 4, 2009. (Doc. No. 28.) The Court granted Plaintiff's ex parte motion for leave to file his opposition. (Doc. No. 31.) For the reasons below, the Court GRANTS Defendants' motion to dismiss the FAC.

Background

I. Plaintiff's Factual Allegations

Plaintiff alleges that he is the owner of property located at 7672 Mocking Bird Drive, San Diego, CA ("the Property"). (FAC ¶ 12.) On or about March 2, 2007, Plaintiff entered into a consumer mortgage refinance transaction with BNC Mortgage, Inc. ("BNC"), obtaining a loan in the amount of $408,000 ("the Loan"). (FAC ¶ 18.) Plaintiff alleges that "a deed of trust for the Loan" named T.D. Service Company as Trustee and Mortgage Electronic Registration Systems, Inc. ("MERS") as beneficiary, and was notarized on February 27, 2007, and recorded on April 2, 2007. (FAC ¶ 20.) Plaintiff alleges that at closing, BNC Mortgage, Inc. failed to provide Plaintiff with "all material disclosures required by the Truth in Lending Act ... including ... the correct identity of the creditor and two copies of Notice of Right to cancel." (FAC ¶ 22.) Plaintiff alleges that "the current holder, or a previous holder, has discharged the promissory Note by materially and fraudulently altering it, an/or canceling and/or renouncing it. (FAC ¶ 25.)

Plaintiff alleges that he elected to exercise his three-day right to cancel the Loan by mailing a notice of cancellation to BNC on March 6, 2007. (FAC ¶ 27.) BNC allegedly informed Plaintiff that his cancellation was late because it was not given within three days, and therefore ineffective. (Id.) Plaintiff alleges that he continued to pay off the Loan. (Id.) Plaintiff alleges that, on January 25, 2008, and on April 15, 2008, Defendant Ocwen Loan Servicing ("Ocwen") offered loan modification agreements, which Plaintiff accepted and complied with. (FAC ¶¶ 28-30.) Plaintiff alleges that Defendant Ocwen repudiated the April 15, 2008 agreement "without cause," and insisted upon the January 25, 2008 agreement. (FAC ¶ 31.) Plaintiff alleges that despite Plaintiff's compliance with the April 15, 2008 agreement, Ocwen "declared a default and initiated foreclosure." (Id.)

Plaintiff alleges that there was never a recorded assignment of deed of trust from MERS to Wells Fargo, or, in the alternative, that the assignment was signed by an unauthorized party. (FAC ¶¶ 32-33.) Plaintiff alleges that the recorded assignment of deed of trust was recorded on August 8, 2009, after the sale. (FAC ¶ 34-7.)

Plaintiff alleges that on October 19, 2007, Alliance Title Company, Default Service Center, filed a notice of default and election to sell the Property under the deed of trust alleging that Plaintiff was in default for more than $16,000. (FAC ¶ 39.) Plaintiff alleges that the notice was signed by an authorized signatory of "Alliance Title Company, a California Corporation as agent for the beneficiary by: Title Court Services, Inc., agent." (FAC ¶ 40.) Plaintiff alleges that Alliance Title Company, Default Service Center, was not the "trustee, mortgagee, or beneficiary, or any of their authorized agents" as required by section 2924(1) of California Civil Code. (FAC ¶ 42-1.) Plaintiff alleges that the notice of default was false, because Plaintiff kept the agreement according to the modification. (FAC ¶ 42.) Plaintiff also alleges that service of the Note was defective. (Id. ¶ 43.)

Plaintiff alleges that on March 17, 2008, Fidelity National Title recorded a notice of trustee's sale for the Loan, scheduling a sale for April 1, 2008. (FAC ¶ 45.) Plaintiff alleges that the notice was signed by an "'authorized signer' for "Financial Title Company, a California Corporation as Trustee.'" (FAC ¶ 46.) Plaintiff further alleges that Financial Title Company was not the "trustee, mortgagee, or beneficiary, or any of their authorized agents" as required by section 2924(3) of California Civil Code. (FAC ¶ 48-3.) Plaintiff also alleges that service of the Notice was defective. (FAC ¶ 48.)

Plaintiff states that the foreclosure sale was held, and the Property was purchased by "Defendant." (FAC ¶ 49.) Plaintiff alleges that Wells Fargo and Ocwen "violated the notice requirements of California Civil Code section 2924a, subsection (b), by making false statements." (FAC ¶ 50.) Plaintiff alleges that the substitution of trustee's mailing affidavit, indicating that notice requirements had been fulfilled, is false. (FAC ¶ 51-2.) Plaintiff also alleges that Wells Fargo "is not and was not the holder of the Note, nor is it or was it in possession of the Note properly endorsed to it, nor was it or is it otherwise entitled by law to initiate foreclosure under the Deed of Trust." (FAC ¶ 51.)

Plaintiff alleges that on October 3, 2008, Defendant filed an unlawful detainer complaint against Plaintiff in California state court. (FAC ¶ 63.) Plaintiff alleges that he moved to vacate the unlawful detainer action for lack of subject matter jurisdiction, and that his motion is pending. (FAC ¶ 64.)

II. Procedural History

On July 9, 2009, Plaintiff filed a complaint in this court against Wells Fargo and Ocwen. (Doc. No. 1.) Plaintiff brought a cause of action to quiet title and for violations of TILA against Wells Fargo. Plaintiff also brought a cause of action for wrongful foreclosure against both Wells Fargo and Ocwen. Defendants moved to dismiss the complaint for failure to state a claim. (Doc. No. 12.) On August 31, 2009, the Court granted Defendants' motion and gave Plaintiff leave to file an amended complaint. (Doc. No. 16.) ...


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