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Okwuni J. Odimbur v. Wells Fargo Bank

March 1, 2012

OKWUNI J. ODIMBUR, PLAINTIFF,
v.
WELLS FARGO BANK, AMERICA'S SERVICING COMPANY, NDEX WEST LLC, BERTHA PADILLA, BROKER, CAMMINO REALTY, DEFENDANTS.



The opinion of the court was delivered by: Dean D. Pregerson United States District Judge

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS [Docket No. 4]

Presently before the court is the Motion to Dismiss Plaintiff's First Amended Complaint("Motion") filed by Defendant Wells Fargo Bank, N.A. ("Wells Fargo").*fn1 Having considered the parties' moving papers, the court grants the motion in part and denies the motion in part, and adopts the following order.

I. Background

Plaintiff, Okwuni J. Odimbur, purchased the property located at 1874 E. Cyrene Drive, Carson, CA 90746 ("Subject Property" or "Property") on July 15, 1991.*fn2 (Mem. Of P. & A. In Opp'n to Mot. to Dismiss Pl.'s First Am. Compl. ("Opp'n") 2:16-17). On August 18, 2004, Plaintiff refinanced the Property with a $300,000 Trust Deed in favor of WMC Mortgage Corp. (Id. at 2:17-18). In the Deed of Trust, Plaintiff conveyed the Property to trustee Westwood Associates, to be held in trust for beneficiary Mortgage Electronic Registration Systems, Inc. ("MERS") as nominee for the lender and its successors and assigns. (Id. at 2:18-20). During or about October 2004, America's Servicing Company (a division of Wells Fargo) became Plaintiff's loan servicer. (Id. at 2:21-23). The loan required monthly payments of $1,896.20. (Id. at 2:23).

Plaintiff was timely making mortgage payments to Wells Fargo until June 2009, when her salary was decreased. (Id. at 2:23-3:1). Plaintiff called Wells Fargo several times to request a loan modification, but was told that they could not give her one until she had missed three monthly payments, and that Wells Fargo would be willing to offer Plaintiff a trial forbearance plan. (Id. at 3:2-5). A Notice of Default was recorded against the Subject Property on August 17, 2009 by Defendant NDEX WEST, LLC ("NDEX") as agent for the beneficiary. (Id. at 3:6-9). During this period, Plaintiff took several trips out of the country for missionary work. (Id. at 4:13, 5:10-11).

On August 27, 2009, Wells Fargo sent Plaintiff a proposed Special Forbearance Agreement ("Forbearance One"). (FAC, Ex. 2). Forbearance One stated, in pertinent part, "If your loan is in foreclosure, we will instruct our foreclosure counsel to suspend foreclosure proceedings once the initial installment has been received, and to continue to suspend the action as long as you keep to the terms of the Agreement." (Id.) Plaintiff executed Forbearance One, and paid the four installments required by it. (FAC ¶¶ 14-17). The Forbearance One payments were for $1,110.00; $1869.66; $1869.66, and $1869.66. (Opp'n 4:6-10).

On September 1, 2009, the nominal beneficiary, MERS, recorded an Assignment of Deed of Trust to a new beneficiary, nonparty "HSBC BANK USA, NATIONAL ASSOCIATION, AS TRUSTEE FOR ACE SECURITIES CORP. HOME EQUITY LOAN TRUST SERIES 2004-HE3 ASSET BACKED PASS-THROUGH CERTIFICATES" ("HSBC"). (Motion 2:17-21). On October 16, 2009, HSBC, by its attorney-in-fact Wells Fargo, recorded a Substitution of Trustee by which NDEX became the trustee for the Subject Property. (Id. at 2:21-23). Despite Plaintiff making the required payments under Forbearance One, a Notice of Trustee's Sale was subsequently recorded on December 29, 2009, by NDEX. (Id. at 23-24; FAC ¶ 17).

On January 22, 2010, a second Forbearance Agreement ("Forbearance Two") was executed, containing the same pertinent term regarding the suspension of foreclosure proceedings. (Opp'n 4:23-5:21). In a letter confirming Forbearance Two, Plaintiff informed Defendant Wells Fargo that she would be out of the country until July 23, 2010. (Id. at 5:10). Plaintiff also included a handwritten note contesting Wells Fargo's calculations. (Id. at 5:22-6:4; Ex. 5). Plaintiff made all four payment installments. (Id. at 6:4-11). The payments were for $2,444.00; $2,064.70; $2,064.70; and $2,064.70. (Id. at 5:17-20).

Though Plaintiff made all payments required by the two forbearances, Plaintiff's Property was sold, based on the December 29, 2009 Notice of Trustee's Sale, on July 20, 2010 at a trustee's sale to HSBC. (FAC ¶ 25). A Trustee's Deed Upon Sale was duly recorded on or about July 22, 2010. (Motion 2:26). Plaintiff filed her original Complaint in propria persona on August 9, 2010. Plaintiff recorded a lis pendens against the Subject Property on August 16, 2010, after the trustee's sale had already occurred. Wells Fargo filed a Motion to Quash Service of Plaintiff's original Complaint on October 1, 2010, which was granted on January 19,2011. Plaintiff retained counsel and filed a First Amended Complaint ("FAC"). The FAC alleges wrongful foreclosure based upon statutory violations, "breach of contract based upon promissory estoppel," and cancellation of foreclosure documents. Wells Fargo timely removed this case to this court on the basis of diversity jurisdiction.

In July 2011, the court relieved Plaintiff's former attorney as counsel of record for Plaintiff and substituted her pro per. Plaintiff subsequently filed a Request for Approval of Substitution of Attorney naming new counsel. The court approved the substitution, and permitted Plaintiff's new counsel to submit a new Reply to the instant Motion to Dismiss.

II. Legal Standard

Under Federal Rule of Civil Procedure 12(b)(6), a complaint is subject to dismissal when the plaintiff's allegations fail to state a claim upon which relief can be granted. When considering a 12(b)(6) motion to dismiss for failure to state a claim, " a court must accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff." Resnick v. Hayes, 213 F.3d 433, 447 (9th Cir. 2000).

In Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009), the Supreme Court explained that a court considering a 12(b)(6) motion should first "identify[] pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth."

Id. Next, the court should identify the complaint's "well-pleaded factual allegations, . . . assume their veracity and then determine whether they ...


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