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Sally Ann Beck and Linda L. Tucker v. Wells Fargo Bank

December 14, 2011

SALLY ANN BECK AND LINDA L. TUCKER,
PLAINTIFFS,
v.
WELLS FARGO BANK, NATIONAL ASSOCIATION AND FEDERAL HOME
MORTGAGE CORPORATION,
DEFENDANTS.



The opinion of the court was delivered by: Edward J. Davila United States District Judge

United States District Court For the Northern District of California

ORDER GRANTING WELLS FARGO'S MOTION TO DISMISS WITH LIMITED LEAVE TO AMEND Re: Docket Item Nos. 16, 17

Presently before the court is the motion of defendant Wells Fargo Bank, N.A. ("Wells Fargo") to dismiss the complaint for failure to state a claim upon which relief may be granted. Mot. 21 Dismiss, Mar. 9, 2011, ECF No. 16. For the reasons set forth below, the motion is GRANTED.

I. REQUEST FOR JUDICIAL NOTICE

Wells Fargo makes an unopposed request for judicial notice of a number of documents 25 related to Plaintiffs' claims. Req. Judicial Notice ISO Mot. Dismiss, Mar. 9, 2011, ECF No. 17.

The court takes up this request first because it affects the record on the motion to dismiss. 27

As a general rule, a district court may not consider any material beyond the pleadings in 28 ruling on a Fed. R. Civ. P. 12(b)(6) motion to dismiss for failure to state a claim. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). However, a court may take judicial notice of matters 2 of public record, id. at 689, and of facts not subject to reasonable dispute that are "capable of 3 accurate and ready determination by resort to sources whose accuracy cannot reasonably be 4 questioned." See Fed. R. Evid. 201(b).

June 27, 2000; (3) a deed of trust, recorded on August 23, 2001; (4) a deed of trust, recorded on 8 April 28, 2003.; (7) a deed of trust, recorded on September 20, 2004; (8) a modification agreement, 10 recorded on February 20, 2008; (9) a notice of default, recorded on August 27, 2010; and (10) a notice of trustee's sale, recorded on November 29, 2010. The Court concludes that document nos. 5, 9, and 10 are not subject to reasonable dispute and are proper subjects of judicial notice. See 13 2010) (taking judicial notice of similar documents). Accordingly, the Court GRANTS Defendants' 15 request for judicial notice as to those three documents, and declines to rule on the request as to the 16 other seven.

obtaining a new $320,000 mortgage through Wells Fargo. Compl. 3:1--2 & Ex. D. Due to economic 21 hardship, Plaintiffs applied and were qualified for a loan modification in December 2009.*fn1 Id. 3:3-- 22 7 & Ex. F. The modification was never executed. Id. 3:7--14. Wells Fargo initiated the non-judicial 23 foreclosure process in 2010. RJN Exs. 9, 10; Opp. Mot. Dismiss 3--4, Sept. 2, 2011, ECF No. 35.

Plaintiffs again applied and qualified for a loan modification in January 2011, but elected not to 25 sign because they did not like the terms of the modification agreement they received. Id. 3:14--18.

home and other declaratory relief based on a variety of underlying causes of action. Compl. 21.

Case No.: 5:11-CV-00663-EJD

ORDER GRANTING MOTION TO DISMISS

Wells Fargo requests judicial notice of ten documents recorded in the Santa Cruz County

Recorder's Office: (1) a grant deed, recorded on February 11, 1998; (2) a deed of trust, recorded on 7 May 17, 2002; (5) a deed of trust, recorded on November 19, 2002; (6) a deed of trust, recorded on Lopez v. Wachovia Mortg., 3:10-CV-01645-WHA, 2010 WL 2836823, at *2 (N.D. Cal. July 19, 14

II. BACKGROUND

In November 2002, Plaintiffs refinanced their home in Watsonville, California by

Plaintiffs filed the instant action on February 14, 2011. They seek to quiet title to their Wells Fargo moves to dismiss the complaint for failure to state a claim. At the September 2, 2011, 2 hearing on the instant motion and without any objection, the court received Plaintiffs' late-filed 3 opposition into the record.

7 whether the complaint sufficiently states a claim upon which relief may be granted. In considering 8 such a motion, the court must accept as true all of the factual allegations contained in the 9 complaint. Ashcroft v. Iqbal, 556 U.S. -, -, 129 S.Ct. 1937, 1949--50 (2009). However, the court 10 need not "accept as true a legal conclusion couched as a factual allegation." Bell Atlantic Corp. v. 11

III. LEGAL STANDARD

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) examines Twombly, 550 U.S. 544, 555 (2007). To survive a motion to dismiss, a complaint "must contain 12 sufficient factual matter . . . to 'state a claim to relief that is plausible on its face.'" Iqbal, 129 S.Ct. 13 at 1949 (quoting Twombly, 550 U.S. at 570). A claim is facially plausible when it "allows the court 14 to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "While 15 legal conclusions can provide the framework of a complaint, they must be supported by factual 16 allegations." Id. at 1950. 17

If a court grants a motion to dismiss, leave to amend should be freely granted "unless the 18 court determines that the allegation of other facts consistent with the challenged pleading could not 19 possibly cure the deficiency." Schreiber Distrib. Co. v. Serv--Well Furniture Co., 806 F.2d 1393, 20 15(a). Where amendment to the complaint would be futile, the court may order dismissal with 22 prejudice. Dumas v. Kipp, 90 F.3d 386, 393 (9th Cir. 1996). 23 24 26 of the Truth in Lending Act (TILA), the Real Estate Settlement Procedures Act (RESPA), and the 27 Fair Debt Collection Practices Act (FDCPA). Plaintiffs also allude to claims for fraud and breach 28 of contract.

IV. DISCUSSION

Plaintiffs seek declaratory relief and to quiet title to their home based on alleged ...


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