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Donald L. Mcdavid v. Wells Fargo Bank

September 12, 2011

DONALD L. MCDAVID, PLAINTIFF,
v.
WELLS FARGO BANK, N.A., FIDELITY NATIONAL TITLE INSURANCE COMPANY, DEFENDANTS.



The opinion of the court was delivered by: Hon. Otis D. Wright, II United States District Judge

JS-6

Order GRANTING Defendant's Motion to Dismiss [10] [Filed 08/18/11] and GRANTING Defendant's Motion to Expunge [11] [Filed 08/18/11] and VACATING Hearing Thereon

I. INTRODUCTION

Pending before the Court are Defendant Wells Fargo Bank, N.A.'s ("Wells Fargo" or "Defendant") two concurrently-filed Motions: (1) a Motion to Dismiss Plaintiff, Donald L. McDavid's ("Plaintiff") Complaint, and (2) a Motion to Strike/Expunge the Lis Pendens. (Dkt. Nos. 10, 11.) Plaintiff failed to timely oppose the Motions, which may be deemed consent to the granting of the Motions. See L.R. 7-9; L.R 7-12. Nevertheless, the Court has considered Defendant's arguments in support, and for the reasons discussed in the papers, hereby GRANTS both the Motion to Dismiss and the Motion to Expunge. The September 26, 2011 hearing on the matters is VACATED and no appearances are necessary.

II. BACKGROUND

On August 11, 2006, to purchase the real property located at 419 E. Mountain Street, Glendale, CA 91207 (the "Property"), Plaintiff, who is a permanent resident of California, executed a loan in the amount of $400,000 (the "Loan"). (Def.'s Request for Judicial Notice ("RJN"), Exh. 1;*fn1 Compl. ¶ 1). The Deed of Trust securing the Loan identifies Wells Fargo as the lender, and Fidelity National Title Insurance Company ("Fidelity"), who is a California corporation with its principal place of business in California, as the trustee.*fn2 (RJN, Exh. 1; RJN, Exh. 6).

On March 18, 2011, due to Plaintiff's default on the Loan in the amount of $11,956.67, Fidelity recorded a Notice of Default. (RJN, Exh. 2). Thereafter, on July 18, 2011, Fidelity foreclosed on the Property. (Compl. ¶ 9). The Property was subsequently sold to Yeganeh Property Group LLC. (RJN, Exh. 5).

In light of the foregoing events, Plaintiff initiated this action for injunctive relief, accounting, monetary relief, and full disclosure. Wells Fargo now brings the instant Motion to Dismiss and Motion to Expunge.

III. LEGAL STANDARD

Federal courts are courts of limited jurisdiction and thus, "have only the power that is authorized by Article III of the Constitution and the statutes enacted by Congress pursuant thereto." Couch v. Telescope, Inc., 611 F.3d 629, 632 (9th Cir. 2010) (quoting Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986)). A court is required, either by a motion or sua sponte, to dismiss an action if it determines that it lacks subject matter jurisdiction. Fed. R. Civ. P. 12(h)(3); Hertz Corp. v. Friend, 130 S.Ct. 1181, 1193 (2010). Furthermore, "[f]ederal courts must determine they have jurisdiction before proceeding to the merits." Lance v. Coffman, 549 U.S. 437, 439 (2007); Munoz v. Mabus, 630 F.3d 856 (9th Cir. 2010).

Despite the favorable standard generally applied in a motion to dismiss, the burden of establishing federal jurisdiction is on the party invoking federal jurisdiction. United States v. Orr Water Ditch Co., 600 F.3d 1152, 1154 (9th Cir. 2010). However, when considering a Rule 12(b)(1) motion, a court accepts the allegations in the complaint as true and draws all reasonable inferences in plaintiff's favor. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004).

IV. DISCUSSION

Wells Fargo moves to dismiss the Complaint for lack of subject matter jurisdiction pursuant to Federal Rules of Civil Procedure 12(b)(1) and for failure to state a claim pursuant to Federal Rules of Civil Procedure 12(b)(6). Additionally, Wells Fargo moves to expunge the Lis Pendens ...


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