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Jorge Osorio v. Wachovia Mortgage

May 8, 2012

JORGE OSORIO,
PLAINTIFF,
v.
WACHOVIA MORTGAGE, FSB, NOW DEFENDANTS' MOTION TO DOING BUSINESS AS WELLS FARGO BANK, STRIKE N.A.; NDEX WEST, LLC; WORLD SAVINGS BANK, A BUSINESS FORM UNKNOWN; [DOC. NOS. 6, 8] AND DOES 1 THROUGH 50, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Irma E. Gonzalez United States District Judge

ORDER: GRANTING DEFENDANTS' MOTION TO DISMISS; AND [Doc. Nos. 4, 6] (2) DENYING AS MOOT

Presently before the Court is a motion to dismiss and a motion to strike portions of Plaintiff Jorge Osorio ("Plaintiff")'s complaint brought by Defendants Wells Fargo Bank, N.A., successor by merger with Wells Fargo Bank Southwest, N.A., f/k/a Wachovia Mortgage, FSB, f/k/a World Savings Bank, FSB ("Wells Fargo") and NDeX West, LLC ("NDeX") (collectively "Defendants"). [Doc. Nos. 4, 6, 8.]*fn1 For the reasons described below, the Court GRANTS Defendants' motion to dismiss and DENIES as moot Defendant's motion to strike.

BACKGROUND

This is a mortgage case. Plaintiff, proceeding pro se, alleges that he purchased the subject property, located at 363 J Street, Chula Vista, CA 91910, on or about May 25, 2007. [Doc. No. 1, Compl. ¶ 19, Ex. A.] To fund that purchase, Plaintiff secured a loan for $163,000 from World Savings Bank, FSB, secured by a Deed of Trust. [Id. ¶ 15, Ex. A.] On December 31, 2007, World Savings Bank, FSB changed its name to Wachovia Mortgage, FSB and then changed its name to Wells Fargo Bank Southwest, N.A. before merging with Wells Fargo Bank, N.A. in November 2009. [Doc. No. 4-4, Request for Judicial Notice ("RJN") Exs. A-E.]*fn2

On August 25, 2011, there was a notice of default on Plaintiff's property, [Compl. Ex. B], and on November 23, 2011, there was a notice of trustee's sale stating that the sale of Plaintiff's property would take place on December 22, 2011. [Id. Ex. C.] Plaintiff's property was sold at a trustee's sale on February 7, 2012 for $87,670, and the sale was recorded on February 15, 2012. [Doc. No. 4-4, RJN Ex. G.]

On February 22, 2012, Plaintiff filed the present action in state court against Defendants alleging seven causes of action for: (1) violation of California Civil Code § 2923.5; (2) fraud; (3) intentional misrepresentation; (4) violation of California Civil Code § 2923.6; (5) violation of California Civil Code § 1572; (6) violation of California Business and Professions Code § 17200 et seq.; and violation of the Federal Truth in Lending Act ("TILA"), 15 U.S.C. § 1601 et seq. [Compl.] On March 16, 2012, Defendant removed the action to this Court pursuant to 28 U.S.C. § 1441 on the basis of federal question and diversity jurisdiction. [Doc. No. 1, Notice of Removal.] By the present motions, Defendants move to dismiss the complaint in its entirety. [Doc. Nos. 4, 8.] Defendants also move to strike from the complaint all allegations related to punitive damages. [Doc. Nos. 6, 8.]

DISCUSSION

I. Legal Standard on a Motion to Dismiss

A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the claims asserted in the complaint. FED. R. CIV. P. 12(b)(6);Navarro v. Block, 250 F.3d 729, 731 (9th Cir. 2001). The court must accept all factual allegations pled in the complaint as true, and must construe them and draw all reasonable inferences from them in favor of the nonmoving party. Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). To avoid a Rule 12(b)(6) dismissal, a complaint need not contain detailed factual allegations, rather, it must plead "enough facts to state a claim to relief that is plausible on its face."Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has "facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, --- U.S. ---, 129 S. Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 556).

However, "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." Twombly, 550 U.S. at 555 (citation omitted). A court need not accept "legal conclusions" as true. Ashcroft v. Iqbal, 129 S. Ct. at 1949.

In addition, factual allegations asserted by pro se plaintiffs, "however inartfully pleaded," are held "to less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519-20 (1972). Nevertheless, and in spite of the deference the court is bound to pay to any factual allegations made, it is not proper for the court to assume that "the [plaintiff] can prove facts which [he or she] has not alleged." Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). Nor must the court "accept as true allegations that contradict matters properly subject to judicial notice or by exhibit" or those which are "merely conclusory," require "unwarranted deductions" or "unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.) (citation omitted), amended on other grounds, 275 F.3d 1187 (9th Cir. 2001); see alsoIleto v. Glock Inc., 349 F.3d 1191, 1200 (9th Cir. 2003) (court need not accept as true unreasonable inferences or conclusions of law cast in the form of factual allegations).

II. Analysis of Defendants' Motion to Dismiss

A. TILA

Plaintiff alleges that Defendant Wells Fargo failed to include and disclose certain finance charges during the processing of his loan in violation of TILA. [Compl. ¶¶ 79-81.] Plaintiff argues that these TILA violations provide him with the right to rescind the transaction. [Id. ¶ 81.] In response, Wells Fargo argues that ...


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