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Newgent v. Wells Fargo Bank

March 2, 2010


The opinion of the court was delivered by: Hayes, Judge


The matter before the Court is the Motion to Dismiss Plaintiff's Second Amended Complaint filed by Defendant Wells Fargo Bank, N.A. (Doc. # 18).


On March 11, 2009, Plaintiff Susan E. Newgent filed a complaint against Defendants in California Superior Court for the County of Imperial. (Doc. # 1). On July 14, 2009, Plaintiff removed the action to this court. Id. On July 20, 2009, Wells Fargo Bank N.A. ("Wells Fargo") filed a Motion to Dismiss. (Doc. # 4). On September 4, 2009, Plaintiff filed her First Amended Complaint ("FAC"). (Doc. # 6). On September 14, 2009, Wells Fargo filed a Motion to Dismiss Plaintiff's FAC. (Doc. # 9). Wells Fargo did not withdraw its original Motion to Dismiss. (Doc. # 4). On October 13, 2009, the Court denied the original Motion to Dismiss (Doc. # 4) as moot. (Doc. # 13). On October 19, 2009, the Court heard oral argument on the Motion to Dismiss Plaintiff's FAC. On October 20, 2009, the Court granted Wells Fargo's Motion to Dismiss Plaintiff's FAC with leave to amend. (Doc. # 15). On November 3, 2009, Plaintiff filed a Second Amended Complaint ("SAC"). (Doc. # 16). On November 12, 2009, Wells Fargo filed its Motion to Dismiss Plaintiff's SAC. (Doc. # 18).


Plaintiff purchased a home in Imperial County with a mortgage from Wells Fargo on December 26, 2003. (Doc. # 16 at 2). Plaintiff divorced her husband in January of 2005, and acquired title to the property in the divorce through a quitclaim deed. Id. Plaintiff's ex-husband did not make child support payments, and as a result, Plaintiff was unable to pay her mortgage. Id. at 3. Plaintiff stopped paying her mortgage in March of 2008. Id. Plaintiff attempted to modify her loan during the summer of 2008, but Wells Fargo denied the loan modification because she did not have a steady job. Id. In the fall of 2008, Plaintiff remarried. Id. Plaintiff's new husband was employed, so Plaintiff attempted to obtain a loan modification for the second time. Id. Plaintiff received a notice on October 13, 2008 that her home would be sold at a Trustee's Sale on November 6, 2008. Id. Plaintiff contacted Wells Fargo and inquired about the status of her loan modification. Id. Plaintiff communicated with a Wells Fargo employee named "Suzie" by phone and was told that the Trustee's Sale would be delayed if Plaintiff paid $2,500.77 and that Wells Fargo would process her loan modification documents. Id. Plaintiff sent a check for $2,500.77 to Wells Fargo, which cashed the check prior to November 6, 2008. Id. However, Wells Fargo nonetheless sold Plaintiff's home on November 6, 2008. Id. Wells Fargo filed an unlawful detainer claim against Plaintiff on April 8, 2009. Id. Plaintiff was "forced out of her home" after a judgment was entered against Plaintiff for unlawful possession on June 22, 2009. Id. at 3-4.

Plaintiff's SAC alleges seven claims for relief: (1) Constructive Fraud; (2) Actual Fraud; (3) Conversion; (4) Breach of the Covenant of Good Faith and Fair Dealing; (5) Declaratory Relief; (6) Quiet Title; and (7) Equitable and Promissory Estoppel. Id. at 1, 4-11. Wells Fargo has moved to dismiss all of Plaintiff's claims. See Doc. # 18. Plaintiff "agree[d] to drop" her fourth claim for Breach of the Covenant of Good Faith and Fair Dealing, her fifth claim for Declaratory Relief, and her sixth claim to Quiet Title. (Doc. # 19 at 11-12).


Federal Rule of Civil Procedure 12(b)(6) permits dismissal for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). Federal Rule of Civil Procedure 8(a) provides: "A pleading that states a claim for relief must contain... a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Dismissal under Rule 12(b)(6) is appropriate where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

To sufficiently state a claim to relief and survive a Rule 12(b)(6) motion, a complaint "does not need detailed factual allegations" but the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "[A] plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. (quoting Fed. R. Civ. P. 8(a)(2)). When considering a motion to dismiss, a court must accept as true all "well-pleaded factual allegations." Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1950 (2009). However, a court is not "required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001); see, e.g., Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 683 (9th Cir. 2009) ("Plaintiffs' general statement that Wal-Mart exercised control over their day-to-day employment is a conclusion, not a factual allegation stated with any specificity. We need not accept Plaintiffs' unwarranted conclusion in reviewing a motion to dismiss."). "In sum, for a complaint to survive a motion to dismiss, the non-conclusory factual content, and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quotations omitted).


I. Constructive Fraud

In support of Plaintiff's claim for constructive fraud pursuant to California Civil Code § 1573, Plaintiff alleges Wells Fargo owed a duty not to mislead her because she was a customer of Wells Fargo and had a contractual relationship with Wells Fargo. (Doc. # 16 at 4). Plaintiff alleges Suzie was a representative of Wells Fargo acting with actual or ostensible authority when she told Plaintiff that sale of Plaintiff's home would be delayed if exchange for a $2,500.77 payment. Id. Plaintiff alleges she payed the $2,500.77 "in consideration for the delay of the sale and for no other reason," and that she would have filed a lawsuit to delay the sale if she had realized her home would be sold despite her payment. Id. Plaintiff alleges she suffered $500,000 in economic damages and $500,000 in "general damages, including severe emotional distress...." Id. at 4-5.

Wells Fargo contends that lenders do not owe either a fiduciary duty or a duty of care to a borrower. (Doc. # 18-1 at 11). Wells Fargo contends that, as a matter of law, Plaintiff's claim for constructive fraud fails because it is based ...

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