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Dario Alda, et al v. Wells Fargo Bank

July 6, 2011

DARIO ALDA, ET AL., PLAINTIFF,
v.
WELLS FARGO BANK, N.A., ET AL., DEFENDANTS.



FINDINGS AND RECOMMENDATIONS

On April 4, 2011, this action was removed from the Sacramento County Superior Court. Plaintiffs, proceeding pro se, filed a complaint alleging claims under the Truth in Lending Act ("TILA"), 12 U.S.C. § 1635, the Real Estate Settlement Procedures Act ("RESPA"), and various state law causes of action. The case was referred to the undersigned pursuant to Local Rule 302(c)(21).

On April 13, 2011, defendant Wells Fargo Bank N.A. ("Wells Fargo") filed a motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(6) on the grounds that plaintiff's complaint fails to state any legally cognizable claim upon which relief may be granted. That motion was properly re-noticed on April 15, 2011 for hearing before the undersigned. On April 19, 2011, defendant Fidelity National Title Insurance Company ("Fidelity") also filed a motion to dismiss. The record reflects that defendants' motions were properly served on the pro se plaintiffs. Thereafter, the court issued an order setting both motions for hearing on June 10, 2011. On that date the case came before the court for hearing on defendants' properly noticed motions. Dean Christopherson, Esq. appeared for defendant Wells Fargo; Carl Paganelli, Esq. appeared for defendant Fidelity. No appearance was made by or on behalf of plaintiffs.

Upon consideration of all written materials filed in connection with the motions and the entire file, the undersigned recommends that defendants' motions to dismiss be granted.

LEGAL STANDARDS APPLICABLE TO MOTIONS TO DISMISS

The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal sufficiency of the complaint. N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). "Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901

F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Thus, a defendant's Rule 12(b)(6) motion challenges the court's ability to grant any relief on the plaintiff's claims, even if the plaintiff's allegations are true.

In determining whether a complaint states a claim on which relief may be granted, the court accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). In general, pro se complaints are held to less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, the court need not assume the truth of legal conclusions cast in the form of factual allegations. W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). The court is permitted to consider material which is properly submitted as part of the complaint, documents not physically attached to the complaint if their authenticity is not contested and the plaintiff's complaint necessarily relies on them, and matters of public record. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001).

Although the Federal Rules of Civil Procedure adopt a flexible pleading policy, a complaint must give the defendant fair notice of the plaintiff's claims and must allege facts that state the elements of each claim plainly and succinctly. Fed. R. Civ. P. 8(a)(2); Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). The plaintiff must allege with at least some degree of particularity overt acts which the defendants engaged in that support the plaintiff's claims. 733 F.2d at 649. A complaint must also contain "a short and plain statement of the grounds for the court's jurisdiction" and "a demand for the relief sought." Fed. R. Civ. P. 8(a)(1) & 8(a)(3).

PLAINTIFF'S FAILURE TO OPPOSE DEFENDANT'S MOTION

Defendants filed their motions to dismiss on April 13, 2011 and April 15, 2011. The motions were properly set for hearing on June 10, 2011. Plaintiffs did not file timely written opposition to either motion, did not appear at the hearing held on June 10, 2011, and did not file any opposition to either motion after the hearing. Plaintiffs' failure to appear at the properly noticed hearing on defendants' motions may, in the discretion of the court, be deemed a statement of no opposition to the granting of the motions. See Local Rule 230(i). An inference of non-opposition in the present case is supported by plaintiffs' failure to file written opposition and failure to appear at the hearing. See Local Rule 230(c) ("No party will be entitled to be heard in opposition to a motion at oral arguments if opposition to the motion has not been timely filed by that party.").

ANALYSIS

The undersigned finds that plaintiffs' failure to file written opposition and failure to appear at the hearings on defendants' motions to dismiss, considered together with plaintiffs' failure to participate in this action since its initiation, should be deemed a statement of no opposition to the granting of defendants' motions. Nonetheless, in light of plaintiffs' pro se status, the undersigned has reviewed defendants' arguments and addresses them below.

Defendants have requested judicial notice of documents related to the matters at issue. (Doc. No. 20.) Defendants' request for judicial notice will be granted pursuant to Federal Rule of Evidence 201. See Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001) (on a motion to dismiss, court may consider matters of public record); MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir.1986) (on a motion to dismiss, the court may take judicial notice of matters of public record outside the pleadings).

The documents of which the court may take judicial notice establish that the subject property was purchased by plaintiffs on November 24, 2004 with a loan of $333,700 secured by a deed of trust. Wells Fargo was the lender and Fidelity National was the trustee. On June 26, 2009, Cal-Western Reconveyance Corporation was substituted as trustee. Plaintiffs defaulted ...


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