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Ortega v. Wells Fargo Bank

February 23, 2010

MODESTO ORTEGA, PLAINTIFF,
v.
WELLS FARGO BANK, A CALIFORNIA CORPORATION; PRIMARY FINANCIAL FOR SERVICES, LLC; FIRST AMERICAN LOANSTAR TRUSTEE SERVICES; AND DOC. NOS. 13, 18 DOES 1 THROUGH 20, DEFENDANTS.



The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge

ORDER (1) GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS; (2) DENYING IN PART AND GRANTING IN PART PLAINTIFF'S MOTION LEAVE TO AMEND

Plaintiff Modesto Ortega ("Ortega") initiated this lawsuit for claims arising out of a residential mortgage transaction. (Doc. No. 1). In response to Defendant Wells Fargo Bank, N.A.'s ("Wells Fargo") motion to dismiss, Ortega filed a first amended complaint ("FAC"). (Doc. No. 10). In his FAC, Ortega raises five claims: (1) intentional misrepresentation, (2) violation of the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2605 and 24 C.F.R. § 3500, (3) violation of the Truth In Lending Act ("TILA"), 15 U.S.C. § 1601-1666j and 12 C.F.R. § 226, (4) violation of RESPA, 12 U.S.C. § 2601 et seq., and (5) violation of California Civil Code section 1632. (Doc No. 10). Wells Fargo once again moves to dismiss the complaint. (Doc. No. 13). Ortega filed an opposition and a motion for leave to file a second amended complaint, with a copy of his proposed second amended complaint attached. (Doc. Nos. 17, 18). In its reply, Wells Fargo urges the court to deny Ortega's motion for leave to file a second amended complaint. (Doc. No. 21).

The court finds this matter appropriate for disposition without oral argument. See Civ LR 7.1(d)(1). For the following reasons, the court hereby GRANTS IN PART and DENIES IN PART Wells Fargo's motion to dismiss and DENIES IN PART and GRANTS IN PART Ortega's motion for leave to file a second amended complaint.

I. BACKGROUND

In April 2007, Ortega purchased a home in Calipatria, California with financing obtained from Wells Fargo. (FAC ¶ 6-7). Ortega, who does not speak English, negotiated the loan in Spanish with Wells Fargo's employee Claudia Suarez-Narvaez ("Suarez-Narvaez"). (FAC ¶ 7, 23). Nonetheless, all of the loan documents were in English. (FAC ¶ 7). At some point, Ortega stopped making payments on the mortgage. (FAC ¶ 16). Eventually, the property went into foreclosure and was sold at a trustee's sale. (FAC ¶ 19).

II. LEGAL STANDARD

A motion to dismiss under Rule 12(b)(6) challenges the legal sufficiency of the pleadings. De La Cruz v. Tormey, 582 F.2d 45, 48 (9th Cir. 1978). In evaluating the motion, the court must construe the pleadings in the light most favorable to the plaintiff, accepting as true all material allegations in the complaint and any reasonable inferences drawn therefrom. See, e.g., Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003). While Rule 12(b)(6) dismissal is proper only in "extraordinary" cases, the complaint's "factual allegations must be enough to raise a right to relief above the speculative level." United States v. Redwood City, 640 F.2d 963, 966 (9th Cir. 1981); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The court should grant 12(b)(6) relief only if the complaint lacks either a "cognizable legal theory" or facts sufficient to support a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

III. DISCUSSION

A. Intentional Misrepresentation

Ortega's first claim against Wells Fargo is for intentional misrepresentation. Ortega claims that during the loan application process, Wells Fargo, through its agent Claudia SuarezNarvaez, "instead of using [Ortega's] actual income submitted the application based upon stated income." (FAC ¶ 24). In addition, Suarez-Narvaez "submitted the loan unsigned by the Plaintiff." (FAC ¶ 25). Finally, "Suarez-Narvaez further concealed the fact that underwriting standards are important to the borrowers as well as the lenders as they are an indication of the borrower's ability to pay back the loan." (FAC ¶ 25).

Under California law, the elements of fraud are false representation, knowledge of its falsity, intent to defraud, justifiable reliance, and damages. See Bank of the West v. Valley Nat'l Bank of Ariz., 41 F.3d 471, 477 (9th Cir. 1994) (citation and quotation marks omitted). Under Federal Rule of Civil Procedure 9, a Plaintiff must plead fraud with particularity. "Rule 9(b)'s particularity requirement applies to state-law causes of action." Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1103 (9th Cir. 2003). "Averments of fraud must be accompanied by 'the who, what, when, where, and how' of the misconduct charged." Id. at 1106 (quoting Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir. 1997)). "'[A] plaintiff must set forth more than the neutral facts necessary to identify the transaction. The plaintiff must set forth what is false or misleading about a statement, and why it is false.'" Id. (quoting Decker v. GlenFed, Inc. (In re GlenFed, Inc. Sec. Litig.), 42 F.3d 1541, 1548 (9th Cir. 1994)). On a claim for fraud, then, a "pleading is sufficient under rule 9(b) if it identifies the circumstances constituting fraud so that a defendant can prepare an adequate answer from the allegations." Moore v. Kayport Package Express, Inc., 885 F.2d 531, 540 (9th Cir. 1989) (citation omitted). "While statements of the time, place and nature of the alleged fraudulent activities are sufficient, mere conclusory allegations of fraud" are not. Id. Further, Rule 9(b) requires a plaintiff to attribute particular fraudulent statements or acts to individual defendants. Id.

Ortega's complaint fails to meet the particularity standards imposed by Rule 9. Although Ortega attributes false statements to a particular person, Suarez-Narvaez, the details of the false statements are still missing. The complaint still fails to allege what was said, how those statements were false, and how they damaged Ortega. In addition, Ortega fails to allege that anyone made false statements to him. Therefore, Ortega's claim for intentional misrepresentation is insufficiently pled. As such, Wells Fargo's motion to dismiss this claim is granted.

B. Violation of RESPA (12 U.S.C. § 2605)

Ortega's second claim against Wells Fargo is for violation of RESPA, 12 U.S.C. § 2605(e). Ortega alleges that on May 20, 2009 he, through counsel, "sent a Qualified Written Request ("QWR") via certified mail to Wells Fargo." (FAC ¶ 34). At the time, "payments were received by Wells Fargo acting as the loan servicer." (FAC ¶ 33). Ortega's QWR sought various information about the loan, including amounts owed, trustees, note holders, and payment history. (FAC ...


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