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Wiebe v. NDEX West

May 17, 2010

MICKEY LEE WIEBE, PLAINTIFF,
v.
NDEX WEST, LLC, DEUTSCHE BANK NATIONAL TRUST COMPANY, WELLS FARGO BANK, N.A., AND ARGENT MORTGAGE COMPANY, LLC, DEFENDANT.



The opinion of the court was delivered by: Andrew J. Guilford United States District Judge

ORDER GRANTING MOTION TO DISMISS

This case, like many others before the Court, involves the sale of a mortgage loan. Defendants Wells Fargo Bank, N.A. ("Wells Fargo") and Deutsche Bank National Trust Company ("Deutsche Bank"), later joined by NDEX WEST, LLC ("NDEX") (collectively, "Defendants"), filed a Motion to Dismiss ("Motion"). After considering all arguments and papers submitted, the Motion is GRANTED.

PRELIMINARY MATTERS

1. REQUEST FOR JUDICIAL NOTICE

To support their motion, Defendants request that the Court take judicial notice of several 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." Fed. R. Evid. 201. 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).

Defendants request that the Court take judicial notice of five documents recorded in the official records of the Orange County Recorder's Office: (1) a December 20, 2005 Deed of Trust; (2) A December 21, 2005 Corporation Assignment of Deed of Trust; (3) A June 18, 2009 Assignment of Deed of Trust; (4) a May 4, 2009 Notice of Default and Election to sell under Deed of Trust; and (5) an August 6, 2009 Notice of Trustee's Sale. The Court finds that these documents meet the requirements of Rule 201, and Defendants' request for judicial notice is GRANTED as to those five documents.

2. NDEX'S REQUEST FOR JOINDER

NDEX filed a request to join in the Motion of Wells Fargo and Deutsche Bank. (Docket Entry 16.) Plaintiff Mickey Lee Wiebe ("Plaintiff") opposes the joinder because NDEX did not submit "a separate memorandum specifying which arguments they intend to join with, and has not alleged that Plaintiff cannot state a claim against them specifically." (Opp'n 17: 5-6.)

The Court's decision and reasoning applies to all Defendants. As such, judicial efficiency is best served by allowing NDEX to join in the Motion, so NDEX's request to join is GRANTED.

BACKGROUND

The following facts are taken from the First Amended Complaint ("FAC"), and as it must for this motion, the Court assumes them to be true.

On December 20, 2005, Plaintiff executed a promissory note, a deed of trust, and a series of mortgage loan agreements. (FAC ¶ 4.) Landsafe Title Agency, Inc., was the original trustee under the deed of trust. (FAC ¶ 6.) In June 2009, NDEX became the trustee. (FAC ¶ 7.) Wells Fargo is the mortgage loan servicer. (FAC ¶ 9.)

Defendants did not provide all of the required disclosures to Plaintiff. (FAC ¶ 11.) Defendants did not notify Plaintiff of any assignment, sale, or transfer of her loan. (FAC ¶12.)

Based on these facts and others, Plaintiff asserts six claims, numbered as follows: (1) breach of contract; (2) violation of the Truth in Lending Act ("TILA"), 15 U.S.C. §§ 1601 et seq.; (3) violation of the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. §§ 2601 ...


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