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Jacob Winding Dba Top To Bottom Cleaning Service v. Wells Fargo Bank

June 24, 2011

JACOB WINDING DBA TOP TO BOTTOM CLEANING SERVICE,
PLAINTIFF,
v.
WELLS FARGO BANK, N.A., A NATIONAL ASSOCIATION;
CAL-WESTERN RECONVEYANCE, A CALIFORNIA CORPORATION; AND DOES 1 THROUGH 100, INCLUSIVE,
DEFENDANTS.



MEMORANDUM OPINION AND ORDER ON DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S COMPLAINT PURSUANT TO F.R.C.P. 12(b)(6)

Doc. # 6

This is an action for monetary damages, declaratory and injunctive relief and to quiet title by Jacob Winding dba Top to Bottom Cleaning Service ("Plaintiff") against defendants, Wells Fargo Bank, N.A. ("Wells Fargo") and Cal-Western Reconveyance ("Cal-Western") (Collectively, "Defendants"). The action arises out of the foreclosure and sale of a property located in Modesto, California (the "Property"). In the complaint, Plaintiff alleges claims for relief for fraud, conspiracy, to quiet title, and seeks cancellation of void instrument. In the instant set of motions, Defendants seek to strike Plaintiff's claims for punitive damages and seek to dismiss each of Plaintiff's claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. This action was removed to this court under diversity jurisdiction pursuant to 28 U.S.C. § 1332. Venue is proper in this court.

JUDICIAL NOTICE

Defendants' request for judicial notice, Document No. 8, was filed concurrently with their motion to dismiss on April 19, 2011. Defendants request that the court take judicial notice of the following documents, copies of which are attached as exhibits to the request:

1. Deed of Trust signed by Warner and Iris Bowers dated May 29, 2007, and recorded in the official records of the Stanislaus County Recorder on June 6, 2007, as Document No. 2007-0075491-00. Exhibit A.

2. Certificate of Corporate Existence dated April 21, 2006, issued by the Office of Thrift Supervision, Department of the Treasury ("OTS"). Exhibit B.

3. Letter dated November 19, 2007, issued by the OTS. Exhibit C. 4. Charter of Wachovia Mortgage, FSB, dated December 31, 2007, reflecting in Section 4 that it is subject to the Home Owners' Loan Act ("HOLA"), 12 U.S.C. § 1461, et seq., and the OTS. Exhibit D.

5. Official Certification of the Comptroller of the Currency ("OCC") stating that effective November 1, 2009, Wachovia Mortgage, FSB converted to Wells Fargo Bank Southwest, N.A., which then merged with and into Wells Fargo Bank, N.A. Exhibit E.

6. Printout from the website of the Federal Deposit Insurance Corporation dated September 2, 2010, showing the history of Wachovia Mortgage, FSB. Exhibit F.

7. Deed of Trust between Warner Bowers (Trustor) and Jacob Winding (Trustee) and TTB Services (Beneficiary) signed by Warner Bowers on December 5, 2001, and recorded in the official records of the Stanislaus County Recorder on August 18, 2009, as Document No. 2009-0081515-00. Exhibit G.

8. Notice of Default dated May 26, 2009, and recorded in the Stanislaus County Recorders Office on May 27, 2009, as Document No. 2009-005207-00; Exhibit H.

9. Quitclaim Deed recorded signed by Warner and Iris Bowers on December 4, 2009, and recorded in Stanislaus County Recorder's Office on December 7, 2009, as Document No. 2009-0116659-00. Exhibit I.

10. Notice of Trustee's Sale dated February 16, 2010, and recorded in the Stanislaus County Recorder's Office on February 25, 2010, as Document No. 2010-018633-00. Exhibit J.

10. Corporation Grant Deed dated March 31, 2010, naming Top to Bottom Cleaning Services as Grantee, recorded in the Stanislaus County Recorder's Office on April 1, 2010, as Document No. 2010-0029430-00. Exhibit K.

Doc. # 8 at 2:3-3:7.

Pursuant to Rule 201(b) of the Federal Rules of Evidence, an adjudicative fact may be judicially noticed if it is "not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Id. Therefore, "a court 'may take judicial notice of matters of public record, including duly recorded documents, and court records available to the public through the Pacer system via the internet.' [Citations.]" Peviani v. Hostess Brands, Inc., - F.Supp.2d -, 2010 WL 4553510 (C.D. Cal. 2010) at *3 (citing C.B. v. Sonora Sch. Dist., 691 F.Supp.2d 1123, 1138 (E.D.Cal.2009); see also Holder v. Holder, 305 F.3d 854, 866 (9th Cir.2002)).

The court has examined the documents supplied as Exhibits A, G, H, I, J and K to Defendants' request for judicial notice and finds these documents appear to be, as Defendants' allege, documents duly recorded by the Stanislaus County Recorder. The court also notes Plaintiff has filed no opposition to Defendants' request for judicial notice. The court finds that Exhibits A, G, H, I, J and K are documents duly recorded and therefore proper for judicial notice. The court will judicially notice those documents.

Defendants also contend that judicial notice is appropriate for Exhibits B, C, D, E and F because those documents reflect official acts of executive departments of the United States.

The California Evidence Code specifically provides that judicial notice is proper for documents that reflect the acts of executive agencies of the United States government. Pursuant to California Evidence Code section 452, subdivision (c), judicial notice may be taken of "[o]fficial acts of the legislative, executive or judicial departments ... of any state of the United States." Ordlock v. Franchise Tax Bd., 38 Cal.4th 897, 912 n.8 (2006) (quoting Cal. Evid. Code § 452(c)). It has been the practice of district courts in California, in cases such as the one at bar, to follow the California Evidence Code by judicially noticing official acts of the OTS, the Comptroller of the Currency, and the FDIC, particularly where the acts in question reflect official recognition of existence, name change or the status of the financial organization with respect to federal regulation. See, e.g., Coppes v. Wachovia Mortgage Corp., 2010 WL 4483817 (E.D. Cal. 2010) at *2-*3 (noting that documents reflecting change of bank name and status were properly judicially noticed and providing case examples from California District Courts).

The court has examined the documents submitted as Exhibits B, C, D, E and F to Defendants' request for judicial notice and finds they appear to be, as Defendants allege, letters and other documents memorializing the official acts of the executive branch of the federal government. Again, Defendants' request for judicial notice is not opposed. For the reasons set forth in Coppes and the case authority cited therein, the court finds that judicial notice of Exhibits B, C, D, E and F is appropriate.

Having determined that each of the Exhibits submitted by Defendants in their request for judicial notice are each properly subject to judicial notice, the court will grant Defendants' request for judicial notice in its entirety.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

To avoid confusion, the court begins by noting that this action involves very similar parties, non-parties, claims and factual context as was the case in Winding v. NDEX West, 10cv2026, an action before this court in which judgment was entered on May 18, 2011. The primary difference between this case and the preceding case is the location of the property at issue. This action concerns property located in the city of Modesto, California whereas the prior case concerned property located in Salida, California. The factual background presented here is drawn from the complaint and from the documents included as Exhibits to Defendants' request for judicial notice. The facts underlying this action and presented here are not disputed except as noted.

At issue in this action is a piece of property located at 302 California Avenue, Modesto in Stanislaus County (hereinafter, the "Property"). The first factual allegation set forth in Plaintiff's complaint is that Plaintiff "did and at all relevant times purchase the deed to the improved real property located at: 302 California Avenue, Modesto, California." Doc. # 1 at 13 ΒΆ 10. The court has examined Plaintiff's complaint and the documents for which judicial notice has been granted and finds that Plaintiff's factual allegations regarding ownership of the Property may be misleading in that important facts concerning the conditions under which Plaintiff assumed ownership are omitted. The ...


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