The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
ORDER GRANTING MOTION TO DISMISS*fn1
Defendant Wachovia Mortgage, a division of Wells Fargo Bank, N.A.,("Wachovia") moves for dismissal of Plaintiff's Complaint under Federal Rule of Civil Procedure ("Rule") 12(b)(6); and for an order striking portions of Plaintiff's Complaint under Rule 12(f). The motion to strike is denied since it is mooted by the ruling below. Wachovia motion includes arguments that Plaintiff's state law claims are preempted by the Home Owners' Loan Act ("HOLA"). (Mot. 2:6-15:4.)
Wachovia argues it is "a division of Wells Fargo Bank, N.A., formerly known as Wachovia Mortgage, FSB, formerly known as World Savings Bank, FSB." (Def.'s Mot. Dismiss ("Mot.") 1:25-27, 2:1.) Wachovia contends it is erroneously sued separately as "Wachovia Mortgage Corporation" and "Wells Fargo Bank, N.A.," and therefore this motion is brought as one entity Wachovia Mortgage, a division of Wells Fargo Bank, N.A. Id.
Plaintiff failed to file an opposition or statement of non-opposition to Wachovia's motion as required by Local Rule 230(c). This failure could be sanctionable conduct. Because of this failure, and the attendant problem of analyzing each issue raised in the motion without the benefit of Plaintiff's input, only certain arguments in the motion are decided.
Plaintiff's Complaint concerns a real property loan transaction, default, and foreclosure proceedings.
A Rule 12(b)(6) dismissal motion tests the legal sufficiency of the claims alleged in the complaint. Novarro v. Black, 250 F.3d 729, 732 (9th Cir. 2001). A pleading 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). The complaint must "give the defendant fair notice of what the [plaintiff's] claim is and the grounds upon which relief rests[.]" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Dismissal of a claim under Rule 12(b)(6) is appropriate only where the complaint either 1) lacks a cognizable legal theory, or 2) lacks factual allegations sufficient to support a cognizable legal theory. Balistreri v. Pacific Police Dept., 901 F.2d 696, 699 (9th Cir. 1988). To avoid dismissal, a plaintiff must allege "only enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 547.
In deciding a Rule 12(b)(6) motion, the material allegations of the complaint are accepted as true and all reasonable inferences are drawn in favor of the plaintiff. See al-Kidd v. Ashcroft, 580 F.3d 949, 956 (9th Cir. 2009). However, conclusory statements and legal conclusions are not entitled to a presumption of truth. See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009); Twombly, 550 U.S. at 555. "In sum, for a complaint to survive a motion to dismiss, the nonconclusory 'factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. United States Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).
II. REQUEST FOR JUDICIAL NOTICE
Wachovia's motion includes a request that judicial notice be taken of documents. Wachovia's judicial notice request also includes a request that a document be considered under the incorporation by reference doctrine. (Def.'s Req. for Judicial Notice in Supp. of Mot. to Dismiss Compl. ("RJN") Exs. A-J.)
"As a general rule, a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion." Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (citations and internal quotation marks omitted). However, a court may consider matters properly subject to judicial notice. Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007). A matter may be judicially noticed if it is either "generally known within the territorial jurisdiction of the trial court" or "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed.R.Evid. 201(b).
"[T]he 'incorporation by reference' doctrine [applies] to situations in which the plaintiff's claim depends on the contents of a document, the defendant attaches the document to its motion to dismiss, and the parties do not dispute the authenticity of the document, even though the plaintiff does not explicitly allege the contents of that document in the complaint." Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005).
Wachovia requests that the Adjustable Rate Mortgage Note signed by Plaintiff on April 6, 2007 be considered under the incorporation by reference doctrine. (RJN 2:5-20; Ex. A.) Wachovia also requests three documents be judicially noticed because they are publicly recorded documents: 1) Deed of Trust dated April 6, 2007, and recorded with the Official Records of the Office of the Solano County Recorder on April 16, 2007; 2) Notice of Default dated March 11, 2010 and recorded in the Official Records of the Office of the Solano County Recorder on March 12, 2010, and 3) Notice of Trustee's Sale dated June 13, 2010 and recorded in the Official Records of the Office of the Solano County Recorder on June 15, 2010. Id. 2:7-9, 21-27; 4:4-9; Exs. B, H-I.
The Adjustable Rate Mortgage Note is referred to in the Complaint, is central to Plaintiff's claims, and the authenticity of this document is not disputed. Since this document is incorporated into the Complaint by reference, it may be considered in deciding Wachovia's dismissal motion under the incorporation by reference doctrine.
Further, since the Deed of Trust, Notice of Default, and Notice of Trustee's Sale are publically recorded documents, they may be judicially noticed. See W. Fed. Sav. & Loan Ass'n v. Heflin Corp., 797 F. Supp. 790, 792 (N.D. Cal. 1992) (taking judicial notice of documents in a county's public record, including deeds of trust). Therefore, Wachovia's request that these documents be judicially noticed is granted.
2. Wachovia's Name Change and Status
Wachovia also requests that judicial notice be taken of the following documents: 1) its Certificate of Corporate Existence dated April 21, 2006 issued by the Office of Thrift Supervision, Department of the Treasury; 2) a letter dated November 19, 2007 from the Office of Thrift Supervision, Department of the Treasury; 3) Wachovia's charter dated December 31, 2007; 4) Federal Deposit Insurance Corporation ("FDIC") profile and history of Wachovia dated August 9, 2010, from the FDIC's official website; and 5) a letter dated November 1, 2009 from the Comptroller of the Currency confirming Wachovia's conversion to a national bank with the name Wells Fargo Bank Southwest, National Association. (RJN Exs. C-G.) Wachovia argues these documents are proper for judicial notice since they are copies of official acts or records of departments of the United States or obtained from government websites. Id. 3:7-11. Wachovia further contends these documents show that Wachovia was a federal savings bank subject to HOLA, whose name was changed from World Savings to Wachovia on or about December 31, 2007, and that it is currently a division of Wells Fargo Bank, N.A. Id. 3:1-6.
"These documents are properly subject to judicial notice under Federal Rule of Evidence 201." Ibarra v. Loan City, No. 09-CV-02228-IEG (POR), 2010 WL 415284, at *3 (S.D. Cal. Jan. 27, 2010) (finding judicial notice of documents related to defendant's status as an operating subsidiary of a federal savings association proper); see also Gens v. Wachovia Mortgage Corp., No. CV10-01073 JF (HRL), 2010 WL 1924777, at *2 (N.D. Cal. May 12, 2010) (taking judicial notice of a letter issued by the Office of Thrift Supervision confirming World Savings' request to change its name to Wachovia); Biggins v. Wells Fargo & Co., No. 09-01272, --- F.R.D. ----, 2009 WL 2246199, at *4 (N.D. Cal. July 27, 2009) (taking judicial notice of an order from the Office of Thrift Supervision); Paralyzed Veterans of Am. v. McPherson, --- F.R.D. ----, 2008 WL 4183981, *5-6 (N.D. Cal. Sept. 9, 2008) (court took judicial notice of information appearing on and printed from official government websites). Therefore, Wachovia's request that these documents be judicially noticed is granted.
3. Plaintiff's Bankruptcy
Wachovia also requests that judicial notice be taken of Plaintiff's Chapter 13 Plan, filed in the United States Bankruptcy Court for the Eastern District of California, in case #2010-38995 on July 30, 2010. (RJN Ex. J.)
"Materials from a proceeding in another tribunal are appropriate for judicial notice." Biggs v. Terhune, 334 F.3d 910, 915 n.3 (9th Cir. 2003). Wachovia's request that these documents be judicially noticed is granted since they are matters of public record. See Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 ...