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Rodolfo Velasquez v. Chase Home Finance LLC

August 1, 2011

RODOLFO VELASQUEZ, PLAINTIFF,
v.
CHASE HOME FINANCE LLC, ET AL.,
DEFENDANTS.



ORDER AND FINDINGS & RECOMMENDATIONS

This matter is before the court on defendants' motion to dismiss and on plaintiff's motion to determine venue, motion for leave to file a first amended complaint and motion to remand. All four motions are scheduled for hearing on August 4, 2011. The court has determined that the matter shall be submitted upon the record and briefs on file and accordingly, the date for hearing of these matters shall be vacated. Local Rule 230. Upon review of the motions and documents filed in support and opposition, THE COURT FINDS AS FOLLOWS:

FACTUAL AND PROCEDURAL BACKGROUND

This action arises from foreclosure proceedings initiated against real property located at 426 Idora Avenue, Vallejo, California 94591 ("the Property"). On October 28, 2003, plaintiff obtained a mortgage for $173,000.00 secured by the Property.*fn1 Req. for Judicial Notice ("RJN"), Ex. 1. A Deed of Trust ("DOT") was recorded on November 7, 2003 with the Solano County's Official Records office. Id. On February 13, 2009, a Notice of Default and Election to Sell Under DOT was recorded. Id., Ex. 2. On March 23, 2009, a Substitution of Trustee was recorded. Id., Ex. 3. On May 18, 2009, a Notice of Trustee's Sale was recorded. Id., Ex. 4.

This is plaintiff's fourth judicial action related to the Property against defendants Chase Home Finance LLC ("Chase") and Federal National Mortgage Association ("Fannie Mae"). Plaintiff, proceeding pro se and in forma pauperis, first filed suit on June 1, 2009 in the Northern District of California against Chase (case No. 3:09-cv-2409-WHA). See RJN, Ex. 5. Chase filed a motion to dismiss, but prior to the district court's consideration of the motion, plaintiff filed a request to withdraw the complaint. Id. On August 19, 2009, the Honorable William Alsup granted the request and dismissed the action. Id.

On April 16, 2010, plaintiff filed his second suit in the Northern District of California against both defendants (case No. 3:10-cv-1641-SI) ("Velasquez I"). RJN, Ex. 7. On June 14, 2010, plaintiff filed a first amended complaint ("FAC"). Id., Ex 7. The FAC set forth the following causes of action: (1) loan reduction; (2) discrimination against a home owner; (3) quiet title; (4) conspiracy to defraud; (5) fraud-concealment; (6) breach of fiduciary duty; (7) damages; (8) fraudulent misrepresentation; (9) wrongful attempt to foreclose; (10) breach of contract and implied covenant of good faith and fair dealing; (11) unlawful business practice;

(12) declaratory and injunctive relief; (13) rescission pursuant to the Truth in Lending Act ("TILA"), 12 U.S.C. § 1601, et seq.; and (14) violation of the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2601, et seq. Id. Defendants filed a motion to dismiss the FAC. See id., Ex. 7.

On August 11, 2010, the Honorable Susan Illston granted defendants' motion with leave to amend eleven of the fourteen claims. RJN, Ex. 7. Judge Illston dismissed with prejudice plaintiff's causes of action for discrimination against homeowner, damages and TILA violations. Id.

On August 26, 2010, plaintiff filed a second amended complaint ("SAC") without correcting the deficiencies noted in Judge Illston's August 11, 2010 order. RJN, Ex. 8. Defendants filed a motion to dismiss the SAC. Id., Ex. 9. On January 10, 2011, Judge Illstron granted the motion with prejudice for failure to state a claim. Id., Ex. 9. Judgment was entered accordingly. Id., Ex. 10. On January 12, 2011, plaintiff filed a notice of appeal.

On January 19, 2011, plaintiff initiated an adversary proceeding against defendant Chase in United States Bankruptcy Court, Northern District of California, Bankruptcy Case No. 08-31219DM, Adversary Proceeding No. 11-3006DM. RJN, Ex. 12. In his prayer for relief, plaintiff sought an order directing Chase to grant plaintiff a loan modification. Id. at 3. On February 24, 2011, the Bankruptcy Court dismissed the Adversary Proceeding for lack of subject matter jurisdiction. Id., Ex. 13.

On February 23, 2011, plaintiff filed the underlying complaint in the Solano County Superior Court ("the instant action"). Therein, plaintiff alleges that defendants denied his request to reduce the amount of his existing home loan, refused to sell the property to plaintiff at the same price they were willing to sell it to a third-party in a short sale and wrongfully opted to foreclose on the Property. The instant action is based on (1) consumer fraud; (2) common law fraud; (3) unjust enrichment; (4) violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq.; (5) negligence; (6) breach of implied warranties; (7) set aside and vacate trustee's sale; (8) violation of TILA; (9) violation of RESPA; (10) promissory estoppel; (11) declaratory relief; (12) action for an accounting; (13) injunctive relief and disgorgement; and (14) application for temporary restraining order.

On April 15, 2009, defendants removed the action to this court. On April 25, 2011, defendants filed the instant motion to dismiss.

On June 1, 2011, plaintiff filed a first amended complaint in which he sought to dismiss his federal claims and have this action remanded to state court. See Doc. No. 11. On June 14, 2011, defendants filed a motion to dismiss the first amended complaint. Pursuant to Federal Rule of Civil Procedure 15(a) and Local Rule 137(c), the undersigned dismissed plaintiff's amended complaint and defendants' amended motion to dismiss was denied as moot.

On July 6, 2011, plaintiff filed three motions: (1) motion to determine venue, (2) motion for leave to file a first amended complaint and (3) motion to remand the first amended complaint.

On July 7, 2011, plaintiff filed an opposition to defendants' motion to dismiss. On July 21, 2011, defendants filed an ...


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