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Balbir Singh v. Wells Fargo Bank N.A.

May 26, 2011

BALBIR SINGH, PLAINTIFF,
v.
WELLS FARGO BANK N.A., D.B.A. WELLS FARGO HOME MORTGAGE, ET AL.,
DEFENDANTS.



ORDER AND FINDINGS & RECOMMENDATIONS

This matter is before the court on defendant Wells Fargo Bank N.A. dba Wells Fargo Home Mortgage's ("Wells Fargo's") February 23, 2011 filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) and February 23, 2011 motion for more definite statement. On February 25, 2011, defendant Provident Savings Bank ("Provident") filed a joinder to both motions. Upon review of the motions and the documents in support and opposition, and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:

FACTUAL AND PROCEDURAL BACKGROUND

This matter arises from foreclosure proceedings initiated against real property owned by plaintiff and his wife, Swaran Kaur ("Kaur")*fn1 , as joint tenants, and located at 17765 Daffodil Hill Street, Lathrop, CA 95330 ("the Property)." Before the court is the second judicial action concerning the Property. The first action, filed solely by Kaur in the San Joaquin County Superior Court, was dismissed following the state court's order sustaining Wells Fargo's demurrer. Both actions are discussed more fully infra.

1. The State Court Action*fn2

On March 29, 2010, Kaur, proceeding with counsel, filed a complaint in the San Joaquin County Superior Court ("the state court action") against Wells Fargo, Cal-Western Reconveyance ("Cal-Western")*fn3 , and Shane L. Hart and Michelle G. Hart Revocable Family Trust ("the Hart Family Trust")*fn4 . See Motion to Dismiss ("MTD"), Ex. 5. Kaur's complaint was premised on claims of wrongful foreclosure proceedings initiated against the Property, which was secured by a home mortgage loan in the amount of $159,600.00 ("the mortgage) obtained on March 13, 2009. Id. at 2, 4. The Promissory Note identifies Kaur as the sole Borrower and Provident as the lender. Id. at 4. Kaur and plaintiff, joint tenants, were listed as "Borrowers" on the Deed of Trust. Id.

On November 17, 2009, a Notice of Default ("NOD") was recorded in San Joaquin County. MTD, Ex. 5 at 5. Kaur contacted Wells Fargo via telephone upon receipt of the NOD and was informed that she could cure the default by submitting a payment in the amount of $5,628.01. Id. Kaur mailed a check in that amount to Wells Fargo, who promptly returned it for Kaur's failure to include attorneys' fees. Id. Kaur, who contends that she was not advised of attorneys' fees during the initial telephone call with Wells Fargo, contacted Wells Fargo again, who stated that $7,493.79 would be sufficient to cover all payment charges, attorneys' fees and miscellaneous fees. Id. On December 28, 2009, Kaur submitted a cashier's check for that amount, which Wells Fargo accepted. Id.

On February 4, 2010, Kaur received a notice regarding a short sale of the Property. MTD, Ex. 5 at 6. Kaur immediately contacted Wells Fargo, who stated that the short sale notice was sent in error and that Wells Fargo's internal departments were experiencing communication problems. Id. On February 18, 2010, Cal-Western, who was substituted as trustee on January 26, 2010, recorded a Notice of Trustee's Sale. Id. at 7. On March 18, 2010, the Property was sold to the Hart Family Trust. Id.

Kaur's March 29, 2010 complaint set forth twelve causes of action: (1) breach of contract; (2) promissory estoppel; (3) equitable estoppel; (4) waiver; (5) breach of covenant of good faith and fair dealing; (6) violation of Cal. Civ. Code §§ 2923.5 and 2923.6; (7) violation of Cal. Bus. & Prof. Code § 17200; (8) unjust enrichment; (9) accounting; (10) set aside the trustee's sale; (11) cancellation of trustee's deed; and (12) quiet title. See MTD, Ex. 4.

On April 18, 2010, Kaur filed a first amended complaint alleging fourteen causes of action; in addition to those set forth in the complaint, Kaur added violation of Cal. Civil Code § 2934 and injunctive relief / temporary restraining order. MTD, Ex. 5. Wells Fargo filed a demurrer to the first amended complaint, which was sustained on July 26, 2010 with leave to amend. Id., Ex. 6.

On August 4, 2010, Kaur filed a second amended complaint setting forth ten causes of action: (1) breach of contract; (2) promissory estoppel; (3) equitable estoppel; (4) waiver; (5) breach of covenant of good faith and fair dealing; (6) violation of Cal. Civ. Code §§ 2923.5 and 2923.6; (7) violation of Cal. Civil Code § 2934; (8) violation of Cal. Bus. & Prof. Code § 17200; (9) unjust enrichment; and (10) accounting. MTD, Ex. 7.

On January 4, 2011, Wells Fargo's second demurrer was sustained without leave to amend. Id., Ex. 8. Judgment was entered in favor of Wells Fargo on January 14, 2011*fn5 , and the state action filed by Kaur was dismissed. Id., Exs. 9-10.

2. The Instant Action

On January 21, 2011, plaintiff, proceeding pro se, filed a complaint in the San Joaquin County Superior Court. On January 26, 2011, plaintiff filed the operative first amended complaint ("FAC"), which was removed to this court by Wells Fargo on February 11, 2011. The FAC -- a 221-page, 843-paragraph document -- is premised upon the following causes of action: (1) declaratory relief; (2) fraud and deceit; (3) fraud misrepresentation; (4) breach of contract; (5) breach of oral contract; (6) promissory estoppel; (7) equitable estoppel; (8) set aside foreclosure; (9) the security first rule; (10) conspiracy; (11) accounting; (12) breach of covenant of good faith and fair dealing; (13) breach of fiduciary duty; (14) intentional infliction of emotional distress; (15) negligent infliction of emotional distress; (16) violation of the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. §§ 2601-2617; (17) violation of California Business and Professions Code § 17500; (18) violation of California Business and Professions Code § 17200; and (19) violation of California Civil Code § 1788.17.*fn6

In the FAC, plaintiff contends that he obtained a loan in the amount of $159,600.00 ("the mortgage") from Provident on March 13, 2009, which was secured by a deed of trust on the Property.*fn7 See FAC at 6, 9. Plaintiff supplements his FAC with certain exhibits, including a grant deed, which he references in the FAC as evidence that he entered into this mortgage.*fn8 See Doc. No. 23. The grant deed does, indeed, list plaintiff and Kaur as borrowers to hold the Property as joint tenants. Id. The Promissory Note submitted by Wells Fargo, however, evidences that the mortgage was obtained solely by Kaur; plaintiff is not listed as ...

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