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Stephen Foos v. Wells Fargo Home Mortgage

December 15, 2010

STEPHEN FOOS, PLAINTIFF,
v.
WELLS FARGO HOME MORTGAGE, DEFENDANT.



The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

FINDINGS AND RECOMMENDATION

Plaintiff, proceeding pro se, brings this civil action regarding his home loan mortgage, apparently alleging violations of the Real Estate Settlement Procedures Act, 12 U.S.C. § 2601 et seq., and the Truth in Lending Act, 15 U.S.C. § 1601, et seq.. Pending before the court is defendant's motion to dismiss (Doc. 14). A hearing on the motion was held on November 18, 2010, before the undersigned in Redding, California. Defense counsel Jonathan Fink appeared telephonically; Plaintiff appeared in person.

I. Background

This is a pro se civil case involving plaintiff's mortgage. While no related case order has been requested or issued, the court notes that plaintiff filed a separate action also challenging his home mortgage, Foos v. Wells Fargo, 10cv2198-FCD-CMK.*fn1

Plaintiff alleges in his complaint that he entered into a contract to refinance his residence, but he was induced into entering a predatory loan agreement, that the defendants committed fraud against him, failed to provide proper notices, charged false fees, and initiated collection procedures knowing they were estopped from doing so under UCC 3-501. He also makes general allegations of unfair practice against the entire real estate industry as a whole, without any specific allegations relating to the defendant. He does not specifically allege when this finance agreement was entered into, but defendants provide a copy of the note which was recorded in Shasta County on February 9, 2007. Defendant has filed a request for the court to take judicial notice of this document, which should be granted.

II. Motion to Dismiss

A. Motion

Defendant brings this motion to dismiss the complaint on the grounds that it fails to state a claim and the claims are barred by the statute of limitations. By granting the request for judicial notice, it appears that the statute of limitations has run on Plaintiff's claims. Defendant also argues Plaintiff's request for rescission fails because he fails to allege valid and viable tender of payment. As to plaintiff's claims of TILA violations, defendant argues he does not specify any actual violations. Rather, he makes general, conclusory allegations of unfair dealings throughout the entire real estate industry.

In opposition, Plaintiff states that he "has pled more than sufficient facts to allege the nature and extent of the wrongful conduct committed by Defendants in his complaint." However, to the extent further facts are necessary, he states he would file an amended complaint to "more precisely inform defendant Wells Fargo of the specifics of plaintiff's claims."

Plaintiff also opposes defendant's request for judicial notice to the extent that defendant has asked the court to accept their interpretation of the documents and to prove that the foreclosure actions are within statutory parameters. "At the most, the documents may establish date and location of filing and the identity of the filing. The documents do not establish Wells Fargo's actions."

In reply, defendant argues plaintiff failed to address the deficiencies in his complaint. Defendant reiterates plaintiff's complete lack of facts to support his claims. Defendant also elaborates on the argument that plaintiff's claims are barred by the statute of limitations. Specifically, that plaintiff's claim for negligence has a two year statute of limitations, fraud is subject to a three year statute, and the Truth in Lending Act (TILA) and the Real Estate Settlement Procedures Act (RESPA) each have either a one- or three- year statue. In addition, defendant argues there is no basis for the application of equitable tolling in that plaintiff failed to plead any basis therefore. Defendant argues the loan contract was entered into on January 29, 2007, and this action was not filed until August 16, 2010, well over three years later.

B. Standards

In considering a motion to dismiss, the court must accept all allegations of material fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The court must also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All ambiguities or doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). However, legally conclusory statements, not supported by actual factual allegations, need not be accepted. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009). In addition, pro se pleadings are held to a less stringent standard than those drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972). "Although a pro se litigant ... may be entitled to great leeway when the court construes his pleadings, those pleadings nonetheless must meet some minimum threshold in providing a defendant with notice of what it is that it allegedly did wrong." Brazil v. United States Dept of Navy, 66 F.3d 193, 199 (9th Cir. 1995).

Rule 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief" in order to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atl. Corp v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order to survive dismissal for failure to state a claim under Rule 12(b)(6), a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Id. at 555-56. The complaint must contain "enough facts to state a claim to relief that is plausible on its face." Id. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has ...


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