Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Greg Edwards v. Wachovia Mortgage

October 4, 2011

GREG EDWARDS,
PLAINTIFF,
v.
WACHOVIA MORTGAGE, A DIVISION OF WELLS FARGO BANK, N.A.; WELLS FARGO BANK N.A.; WORLD SAVINGS BANK, FSB, IRVINE FUNDING CORPORATION, CAL-WESTERN RECONVEYANCE CORPORATION, DEREK TABER; DOES 1-10, DEFENDANTS.



The opinion of the court was delivered by: Hayes, Judge:

ORDER

The matters before the Court are the Motion to Dismiss Plaintiff's Second Amended Complaint for Failure to State a Claim filed by Wells Fargo Bank, N.A on behalf of Wells Fargo Bank, N.A., World Savings Bank, FSB and Wachovia Mortgage*fn1 ("Wells Fargo") (ECF No. 26) and the Notice and Application for Withdrawal of Counsel filed by Plaintiff's counsel, Attorney Nicole Gallagher (ECF No. 36).

I. Background

On August 24, 2010, this case was removed from the Superior Court for the County of San Diego. (ECF No. 1). On August 31, 2010, Defendant Wells Fargo filed a Motion to Dismiss. (ECF No. 6).

On October 5, 2010, this Court issued an Order noting that Plaintiff's counsel had resigned and provided Plaintiff with additional time to respond to the Motion to Dismiss. (ECF No. 8). On October 29, 2010, a Substitution of Counsel was filed in which Attorney Nicole Gallagher was added as counsel for Plaintiff. (ECF No. 12). On December 6, 2010, Plaintiff's Opposition to Defendant Wells Fargo's Motion to Dismiss was filed. (ECF No. 14). On February 10, 2011, this Court issued an Order granting Defendant Wells Fargo's Motion to Dismiss. (ECF No. 16).

On March 11, 2011, Plaintiff filed a First Amended Complaint. (ECF No. 18). On March 28, 2011, the parties filed a Joint Motion to Grant Plaintiff Leave to File Second Amended Complaint. (ECF No. 22). On March 29, 2011, this Court granted the Joint Motion. (ECF No. 24).

On April 7, 2011, Plaintiff's Second Amended Complaint was filed. (ECF No. 24). On April 8, 2011, Defendant Wells Fargo filed a Motion to Dismiss the Second Amended Complaint. (ECF No. 26). On April 24, 2011, Plaintiff filed an Opposition. (ECF No. 29). On May 2, 2011, Plaintiff filed a Reply. (ECF No. 30).

On July 19, 2011, Plaintiff's counsel, Attorney Nicole Gallagher, filed a Notice and Application for Withdrawal of Counsel. (ECF No. 36).

II. Allegations of the Complaint

Plaintiff owns a house located at 3343 Bayside Walk #B, San Diego, CA 92109 ("the Property"). (ECF No. 24 at ¶ 3). In July 2007, Defendants Irvine Funding Corp. and Derek Taber offered to refinance Plaintiff's loan to provide Plaintiff with a lower monthly mortgage payment of about $3,000 and a fixed-interest rate. Id. at ¶¶ 11,14-15. Plaintiff listed his accurate income on his application, but Defendants Irvine Funding Corp. and Derek Taber did not show him "what exact amounts were eventually stated in respect to his income on the loan application." Id. at ¶¶ 21, 23. Plaintiff's loan application lists his employer as "California Aerospace Manufacturing," but Plaintiff has never been employed by "California Aerospace Manufacturing." Id. at ¶ 24. The debt-to-income ratio on the loan was in excess of the industry standard of 35%, the approval of the loan was "unreasonably outside of industry standard guidelines in underwriting procedures," and the actual finance charge "well outside tolerance limits." Id. at ¶¶ 28, 30, 35. "Based on the foregoing facts, Plaintiff began having difficulty paying his mortgage." Id. at ¶ 39.

Plaintiff requested a loan modification. Defendant Wells Fargo's agent "informed Plaintiff that they would not review his account unless [Plaintiff] stopped making mortgage payments." Id. at ¶ 41. Defendant Wells Fargo's agent "assured Plaintiff that his account would not go into a 'default status while [his] account was in review but that he had to stop making payments' or words to that effect." Id. at ¶ 42. Plaintiff stopped making payments but he has not been offered a loan modification. A notice of default was recorded, which "clearly misrepresent[ed] that [Defendant] had made contact as necessary under [California Civil] Code. [section] 2923.5 and provided options to avoid foreclosure." Id. at ¶ 43.

The Complaint asserts seven claims as follows: (1) intentional misrepresentation against Defendants Irving Funding, Taber, and Wells Fargo; (2) fraudulent concealment against Irving Funding, Taber, and Wells Fargo; (3) constructive fraud against Irving Funding and Taber; (4) breach of fiduciary duty against Irving Funding and Taber; (5) violation of the Real Estate Settlement Procedures Act against Irving Funding and Wells Fargo; (6) violation of California Civil Code Sections 2923.5 and 2923.6 against Wells Fargo; (7) violation of California Business and Professions Code Section 17200 against all Defendants. Id. at 13-23.

III. Discussion

Federal Rule of Civil Procedure 12(b)(6) permits dismissal for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). Federal Rule of Civil Procedure 8(a) provides: "A pleading that states a claim for relief must contain ... a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Dismissal under Rule 12(b)(6) is appropriate where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

To sufficiently state a claim to relief and survive a Rule 12(b)(6) motion, a complaint "does not need detailed factual allegations" but the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "[A] plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. (quoting Fed. R. Civ. P. 8(a)(2)). When considering a motion to dismiss, a court must accept as true all "well-pleaded factual allegations." Ashcroft v. Iqbal, --- U.S. ----, 129 S. Ct. 1937, 1950 (2009). However, a court is not "required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001); see, e.g., Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 683 (9th Cir. 2009) ("Plaintiffs' general statement that Wal-Mart exercised control over their day-to-day employment is a conclusion, not a factual allegation stated with any specificity. We need not accept Plaintiffs' unwarranted conclusion in reviewing a ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.