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Greg Edwards v. Wachovia Mortgage

February 10, 2011

GREG EDWARDS, PLAINTIFF,
v.
WACHOVIA MORTGAGE, A DIVISION OF WELLS FARGO BANK,
N.A., WORLD SAVINGS BANK, FSB, IRVINE FUNDING CORPORATION,
CAL-WESTERN RECONVEYANCE CORPORATION, DOES 1-10, DEFENDANTS.



The opinion of the court was delivered by: Hayes, Judge:

ORDER

The matter before the Court is the Motion to Dismiss Plaintiff's Complaint for Failure to State a Claim filed by Wells Fargo Bank, N.A. ("Wells Fargo"). (ECF No. 6).

BACKGROUND

On August 24, 2010, this case was removed from the Superior Court for the County of San Diego. (ECF No. 1). On August 31, 2010, Defendant Wells Fargo, who was "sued erroneously" as Wachovia Mortgage and World Savings Bank, FSB, filed a Motion to Dismiss. (ECF No. 6).

On October 5, 2010, this Court issued an Order noting that Plaintiff's counsel had resigned and provided Plaintiff with additional time to respond to the Motion to Dismiss. (ECF No. 8). On October 29, 2010, a Substitution of Counsel was filed for Plaintiff. (ECF No. 12).

On December 6, 2010, Plaintiff's Opposition to Defendant Wells Fargo's Motion to Dismiss was filed. (ECF No. 14). On December 13, 2010, Wells Fargo filed a Reply. (ECF No. 15).

ALLEGATIONS OF THE COMPLAINT

Plaintiff alleges that on July 6, 2007, Plaintiff refinanced his loan on his primary residence located at 3343 Bayside Walk #B, San Diego, CA 92109 ("the Property"). (ECF No. 1 at 11 ¶ 5). Plaintiff alleges that in July 2007, Defendant Irvine Funding Corp. offered to refinance Plaintiff's loan to provide Plaintiff with a lower monthly mortgage payment of about $3,000. Id. at 12 ¶ 7. "Soon after Plaintiff started making his mortgage payments, the monthly payments adjusted upward to over $6,000 per month.... [and] continued to adjust upward and would have reached up to more than $12,000 per month." Id. at ¶ 9. Plaintiff alleges that he listed his accurate income on his application, but Defendants approved the loan based on inflated stated income. Id. at ¶¶ 10,11. Plaintiff alleges that he has received a notice of default. Id. at 13 ¶ 17.

The Complaint asserts nine causes of action as follows: (1) Intentional Misrepresentation; (2) Breach of Fiduciary Duty; (3) Action for Quiet Title; (4) Violation of California Financial Code Section 4970 et seq.; (5) Violation of California Business and Professions Code Section 17200 et seq.; (6) Violation of California Civil Code Section 2923.6; (7) Violation of California Civil Code Section 2923.5; (8) Fraudulent Concealment; and (9) Constructive Fraud.*fn1 Id. at 13-23.

DISCUSSION

Federal Rule of Civil Procedure 12(b)(6) permits dismissal for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). Federal Rule of Civil Procedure 8(a) provides: "A pleading that states a claim for relief 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). Dismissal under Rule 12(b)(6) is appropriate where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

To sufficiently state a claim to relief and survive a Rule 12(b)(6) motion, a complaint "does not need detailed factual allegations" but the "[f]actual 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). "[A] plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. (quoting Fed. R. Civ. P. 8(a)(2)). When considering a motion to dismiss, a court must accept as true all "well-pleaded factual allegations." Ashcroft v. Iqbal, --- U.S. ----, 129 S. Ct. 1937, 1950 (2009). However, a court is not "required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001); see, e.g., Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 683 (9th Cir. 2009) ("Plaintiffs' general statement that Wal-Mart exercised control over their day-to-day employment is a conclusion, not a factual allegation stated with any specificity. We need not accept Plaintiffs' unwarranted conclusion in reviewing a motion to dismiss."). "In sum, for a complaint to survive a motion to dismiss, the non-conclusory factual content, and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quotations omitted).

I. Fraud - Claims One, Eight, and Nine

Defendant contends that Plaintiff's claims of intentional misrepresentation, fraudulent concealment, and constructive fraud against fail because they are not sufficiently pled. Plaintiff contends that the fraud claims have been adequately alleged, but "Plaintiff is more than happy to file ...


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