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Fry v. Wachovia Mortgage FSB

September 13, 2010


The opinion of the court was delivered by: M. James Lorenz United States District Court Judge


Defendants Wachovia Mortgage, FSB and Golden West Savings Association Services Company move to dismiss plaintiffs' complaint under Federal Rule of Civil Procedure 12(b)(6). Plaintiffs, who are appearing pro se, failed to oppose the motion to dismiss and instead filed a motion to remand, which the Court denied, and a motion to amend the complaint. When an opposing party does not file papers in the manner required by Civil Local Rule 7.1(e.2), the Court may deem the failure to "constitute a consent to the granting of a motion or other request for ruling by the court." CIV. L.R. 7.1(f.3.c). Even when a motion is unopposed, the Court reviews the motion on the merits to determine if cause exists to grant the motion.

Legal Standard

A Rule 12(b)(6) motion tests the sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal is warranted under Rule 12(b)(6) where the complaint lacks a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc.,749 F.2d 530, 534 (9th 09cv2662 Cir. 1984); see Neitzke v. Williams, 490 U.S. 319, 326 (1989) ("Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law"). Alternatively, a complaint may be dismissed where it presents a cognizable legal theory yet fails to plead essential facts under that theory. Robertson, 749 F.2d at 534. "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual 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) (internal quotation marks, brackets and citations omitted).

In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume the truth of all factual allegations and must construe them in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Legal conclusions, however, need not be taken as true merely because they are cast in the form of factual allegations. Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987); W. Mining Council v. , 643 F.2d 618, 624 (9th Cir. 1981). Similarly, "conclusory allegations of law and unwarranted inferences are not sufficient to defeat a motion to dismiss." Pareto v. Fed. Deposit Ins. Corp., 139 F.3d 696, 699 (9th Cir. 1998).

When ruling on a motion to dismiss, the court may consider the facts alleged in the complaint, documents attached to the complaint, documents incorporated by reference in the complaint, and matters of which the Court takes judicial notice. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003); Parrino v. FHP, Inc. , 146 F.3d 699, 705-06 (9th Cir. 1998). A pro se plaintiff's pleadings are read liberally. Hebbe v. Pliler, 2010 WL 2947323 *3 (9th Cir. July 29, 2010)


In November 2005, plaintiffs refinanced their home in Oceanside, California, with Wachovia Mortgage, FSB. The mortgage loan was secured against their real property. Because of plaintiffs' default on the loan, the property ultimately was sold at a non-judicial foreclosure Plaintiffs' complaint lists the following causes of action: breach of contract; violation of California Consumer Fraud Act; TILA; HOEPA; RESPA; conversion; infliction of emotional distress; fraud -- misrepresentation and conspiracy; and violation of the Uniform Commercial Code as defined in 9-3101 et seq. and California Recording Statutes.


A. General Considerations Concerning the Complaint

As noted, plaintiffs' complaint lists a variety of causes of action. In addition, plaintiffs provide a list of ten allegations that appear to be a summary of the acts plaintiffs contend were wrongfully committed by defendants. (Complaint at 2.) Also, plaintiffs provide a "statement of facts." Even liberally construing plaintiffs' pleading and considering it as a whole, the complaint is a jumble of unclear and odd assertions that appears, at best, based on a fundamental misunderstanding of the legal system in this country and the mortgage lending process and specifically, the nature and function of a promissory note and a borrowers' inability to unilaterally alter the terms and conditions of that note.

Plaintiffs' chief assertion appears to be that defendants failed to respond to correspondence they sent concerning what plaintiffs believed to be "fraudulent lender activity" on the part of Wachovia Mortgage. According to plaintiffs, Wachovia did "not loan[] Plaintiffs anything," and that Wachovia "sold the mortgage note, to savvy investors, in a bundle of Asset-Backed securities" which resulted in Wachovia being "already . . . 'paid in full' on the alleged note." (Complaint at 3.)

The Complaint lists the many letters and other documents plaintiffs sent to Wachovia that purport to be settlement offers, based on plaintiffs' belief that Wachovia acted fraudulently and had no foreclosure rights on the property, and plaintiffs' demand that defendants return all moneys plaintiffs paid along with clear title to the property. (See Complaint, Exh. A.) Included in the exhibits plaintiffs attach to their complaint are a "Silver Guarantor Bond" and a "Claim of Conusance in tentere placita in admiralty and on Land." It is unclear what these documents are intended to represent legally. Plaintiffs also provide a "Release of Lien of Real Property" that states that it concerns "the performance of U.S. Government Contract Number 352-44-3172 & 554-78-0666." (Notice of Removal at 31.) There is no suggestion in the complaint that this dispute concerns a government contract. In yet another document, plaintiff asserts: Be it further known, GRANTOR/TURSTOR: RICHARD WAYNE FRY does hereby declare that: Effective immediately, all duty(s) and benefit(s) of "Trustee" and "Beneficiary" as set forth in original Deed of Trust, are hereby reassigned by Quitclaim to Promise Of Life in The Immutable Christ (POLITIC)." (Id. at 32.) The document is signed by plaintiff Richard Wayne Fry and attested to by "Daniel-Mark: Gough" a "county notary affirmation, autograph, and seal." The "notarization" provides that

This document was affirmed, autographed, and sealed within the fifth judicial district of tens. san diego: the county: california: the land; yisra'el nation, on this the seventh hour of the nineteenth day of the second month in the year of five thousand seven hundred sixty-nine this being the present day to the best of my knowledge . . . . With nothing but dry land under foot ...

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