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Vasconcelos-Florez v. World Savings Bank

March 9, 2010

MARCELA VASCONCELOS-FLOREZ, PLAINTIFF,
v.
WORLD SAVINGS BANK, ET AL., DEFENDANTS.



FINDINGS & RECOMMENDATIONS

This matter came before the court on June 12, 2009, for hearing of defendants' motion to dismiss plaintiff's second amended complaint. Plaintiff Marcela Vasconcelos-Florez, proceeding pro se, appeared on her own behalf. Plaintiff was accompanied by Edgar Hilbert, who served as a Spanish interpreter for plaintiff. Christopher A. Carr, Esq. appeared telephonically for defendants.

Plaintiff was heard with regard to her failure to file written opposition to defendants' motion. In the interests of justice, the court granted plaintiff an additional two weeks to file opposition to the motion. With the filing of plaintiff's opposition and defendants' reply, the matter stood submitted. Upon consideration of defendants' motion, the parties' briefs, oral argument, and the entire file, the undersigned recommends that defendants' motion be granted without leave to amend.

BACKGROUND

On August 7, 2008, plaintiff commenced this action by filing a voluminous pro se complaint in San Joaquin County Superior Court. (Notice of Removal (Doc. No. 1), Ex. A.) On September 5, 2008, defendants Wachovia Mortgage, FSB, formerly known as World Savings Bank, FSB, and Golden West Savings Association Service Co. removed the case to the district court on the ground that federal jurisdiction arises from plaintiff's allegation of claims based on federal laws. (Id. at 2.) Specifically, defendants cited plaintiff's claims of mail fraud in violation of 18 U.S.C. § 1341 and loan sharking (RICO) in violation of 18 U.S.C. § 1962. (Id., citing Ex. A at 6, 8.)

Immediately after removal, defendants filed their first motion to dismiss. After hearing oral argument on defendants' motion, the undersigned granted defendants' motion with leave to amend. (Order filed Nov. 24, 2008 (Doc. No. 16).) Plaintiff was advised that in an amended complaint, each claim and the involvement of each defendant must be sufficiently alleged. See Local Rule 220 (requiring that an amended complaint be complete in itself without reference to any prior complaint). Plaintiff was directed to include clear and concise but complete factual allegations describing the conduct and events that underlie her claims. Plaintiff was informed that important exhibits could be attached to the amended complaint if the exhibits serve to explain plaintiff's allegations.

Plaintiff filed her first amended complaint on December 22, 2008 (Doc. No. 21). On January 12, 2009, defendants moved to dismiss the first amended complaint (Doc. No. 24). After hearing the motion on February 27, 2009, the undersigned granted defendants' motion, with leave to file a second amended complaint. (Order filed Mar. 2, 2009 (Doc. No. 27).)

Plaintiff filed her second amended complaint on April 10, 2009 (Doc. No. 28). On May 4, 2009, defendants moved to dismiss the new pleading (Doc. No. 29). Plaintiff did not file written opposition to defendants' motion but appeared at the hearing on June 12, 2009, and claimed that she did not receive defendant's most recent motion, despite the fact that the motion was mailed to her address of record and plaintiff was aware of the hearing. In the interests of justice, the undersigned granted plaintiff leave to file opposition out of time. Opposition was filed on June 26, 2009, and defendants' reply was filed on July 1, 2009.

PLAINTIFFS' CLAIMS

In her second amended complaint, plaintiff alleges in conclusory fashion as follows. She was a customer of defendant World Savings Bank and took out a $240,000 home mortgage in 2003. She made mortgage payments for five years. In 2008, she telephoned defendants to request refinancing due to personal circumstances, but her request was refused. Prior to 2008, defendants called plaintiff's home several times to ask her whether she was interested in taking out a $50,000 line of credit. The caller represented to plaintiff that a line of credit is just like a credit card. The caller did not inform plaintiff that the line of credit would require use of her house as security. Had plaintiff known the line-of-credit offer was basically a second mortgage, she would not have taken the offer. Plaintiff does not recall signing loan documents stating that her home was security for her line of credit, and defendants have not provided her with copies of documents signed by her showing that she agreed to put her house up as security for the loan. Plaintiff made all payments on her line of credit until her wallet was stolen. She stopped making payments "for 2-3 months." When she attempted to pay the balance owed on the line-of-credit loan, defendants' representatives notified her that due to her delinquency her house had been foreclosed. The loss of her home in foreclosure caused plaintiff extreme emotional distress. She seeks "all damages allowed by law and equity for defendant's conduct, including rescission of the contract." (Second Am. Compl. at 1-2.)

ARGUMENTS OF THE PARTIES

Defendants seek dismissal of plaintiff's second amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) on the grounds that the pleading fails to state any claim upon which relief may be granted and that, to the extent the pleading attempts to state a claim for fraud, it does not satisfy the particularity requirements of Federal Rule of Civil Procedure 9.

Defendants note that plaintiff's original and first amended complaints alleged violations of federal laws but her second amended complaint does not mention any federal statute and therefore, since this action was removed from state court on the basis of federal question jurisdiction, the court must consider whether federal jurisdiction still exists.

In support of their Rule 12(b)(6) motion, defendants observe that the second amended complaint pleads almost no facts and the few facts alleged are legally insufficient to state any claim upon which relief may be granted. Defendants contend that, at best, the pleading appears to be an effort to state a claim for common law misrepresentation, i.e., fraud, although the pleading falls far short of meeting the Rule 9 standard for pleading such a claim. Defendants also argue that plaintiff's allegations concerning the alleged misrepresentation strain credulity and fail to establish justifiable reliance. Defendants argue further that plaintiff's claims against defendant Golden West Savings Association Service Co. should be dismissed because this defendant's role as trustee under the foreclosed deed of trust provides no basis for liability on its part to plaintiff.

In opposition, plaintiff contends that she has clearly stated her legal claim but wants to revise her prayer for relief to claim actual damages for loss of vehicles, loss of antique furniture and family heirlooms, as well as "special damages, tort damages, pain-and-suffering with intentional affliction of psychological distress, and punitive damages." (Pl.'s Opp'n (Doc. No. 31), at 2.) Plaintiff seeks millions of dollars in damages and asks that her house returned to her with "quiet title." (Id.) Plaintiff contends that her "cause-of-action, legal claim, and/or claim-for-relief is gross misrepresentation; breach of professional ethics; gross consumer neglect; gross consumer fraud; gross real estate fraud; intentional ...


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