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People v. Bank of America

January 25, 2010

PEOPLE OF CALIFORNIA, WOOD, ET AL.
v.
BANK OF AMERICA, ET AL.



The opinion of the court was delivered by: The Honorable Andrew J. Guilford

CIVIL MINUTES - GENERAL

Proceedings: ORDER DENYING PLAINTIFFS' MOTION TO REMAND AND GRANTING DEFENDANT'S MOTION TO DISMISS

This case, like many others currently in the judicial system, involves the sale of an adjustable rate mortgage loan ("ARM"). Pro se Plaintiffs Devon Wood and Jean Keating ("Plaintiffs") filed their Complaint in the Superior Court of the State of California, San Bernardino County, and Defendant Bank of America Corporation ("BAC") removed the action to this Court. Plaintiffs then filed a Motion to Remand ("Plaintiffs' Motion"). Defendants BAC, Countrywide Home Loans Servicing, LP ("CHL"), ReconTrust Company, N.A. ("ReconTrust"), and Mortgage Electronic Registration Systems, Inc. ("MERS") (collectively "Defendants") filed a Motion to Dismiss ("Defendants' Motion"). After considering all papers and arguments submitted, Plaintiffs' Motion is DENIED and Defendants' Motion is GRANTED.

PRELIMINARY MATTER

Defendants ask the Court to take judicial notice of two documents. Under Federal Rule of Evidence 201, "[a] judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Facts subject to judicial notice may be considered on a motion to dismiss. Mullis v. United States Bankruptcy Ct., 828 F.2d 1385, 1388 (9th Cir. 1987).

Documents not physically attached to the complaint may be considered by the Court on a Rule 12(b)(6) motion if the document is central to the Plaintiffs' claims and there is no question concerning the authenticity of the documents. See Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). Further, the Court may take judicial notice of official records and reports without converting a Rule 12(b)(6) motion into a Rule 56 motion for summary judgment. See MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986). Defendants ask the Court to take judicial notice of the following two documents: (1) the Adjustable Rate Note (RJN, Exh. A ("Note")); and (2) the Deed of Trust (RJN, Exh. B ("Deed"). The Court finds that these documents meet the requirements of Rule 201, and Defendants' request for judicial notice is GRANTED as to those two documents.

BACKGROUND

Plaintiffs filed their Complaint in the San Bernardino Superior Court on November 3, 2009, alleging eleven claims, numbered as follows: (1) Unlawful offer and sale of unqualified nonexempt securities in violation of California Corporations Code §25110; (2) conversion in violation of § 58 of the National Bank Act ("NBA"); (3) mutilation and destruction of promissory note in violation of § 58 of the NBA; (4); unlawful conversion, conveyance, and endorsement of promissory note in violation of California Commercial Code § 3104; (5) unlawful conversion and conveyance in violation of California Civil Code §§ 1169-71, 1180-1207, and 1214; (6) unlawful foreclosure in violation of 12 U.S.C. §§ 3755-56; (7) unlawful foreclosure in violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692g; (8) unlawful acts of accounting, including off balance sheet financing; (9) criminal violations of California Penal Code § 484(a) and the Securities Exchange Act; (10) civil violations of the Racketeer Influenced Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962; and (11) criminal violations of California Penal Code § 506b.

Throughout the Complaint, Plaintiffs refer to the Note, and state that the Note is attached as "Exhibit A," but Plaintiffs failed to attach any Exhibit A. Plaintiffs did attach a grant deed, signed and dated September 9, 2009, and recorded in Official Records, County of San Bernardino on October 8, 2009 ("Grant Deed"). (Compl., Exh. G.) The Grant Deed is a gift transfer from "Mi Ja Yun" to "Devon Wood, and Jean Keating." (Compl., Exh. G.) The address of the transferred property on the Grant Deed is the same address listed in the Note and Deed attached to Defendants' Request for Judicial Notice.

The Note is dated April 14, 2005. (RJN, Exh. A.) Each of the first 3 pages of the Note is notarized and initialed "MJ," and the fourth and final page is notarized and signed by "Mi J. Yun." (RJN, Exh. A.) The Deed was recorded in the Official Records of the County of San Bernardino on April 22, 2005. (RJN, Exh. B.) The "Borrower" is listed as "Mi J. Yun, a Married Woman as her Sole and Separate Property." Mi J. Yun is not a party to this lawsuit.

Defendant Bank of America Corporation ("BofA") timely removed the action to this Court on November 30, 2009 based on federal question jurisdiction. Plaintiffs now move for remand, and Defendants move to dismiss.

ANALYSIS

1. PLAINTIFFS' MOTION TO REMAND

Removal to federal court is governed by 28 U.S.C. ยง 1441. Suits filed in state court may be removed to federal court if the federal court would have ...


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