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Joseph Edward Marty v. Wells Fargo Bank

May 29, 2012

JOSEPH EDWARD MARTY, PLAINTIFF,
v.
WELLS FARGO BANK, ET AL.,
DEFENDANTS.



FINDINGS AND RECOMMENDATIONS

This case came before the court on May 25, 2012, for hearing on defendants' motions to dismiss plaintiff's complaint pursuant to Federal Rules of Civil Procedure 12(b)(6) and plaintiff's motion to stay these proceedings. (Doc. Nos. 2, 16 and 23.) Adam Barasch appeared telephonically for defendants Wells Fargo Bank, NA ("Wells Fargo") and Mortgage Electronic Registrations Systems, Inc. ("MERS"). Lawrence Harris, Esq. appeared telephonically for defendant First American Trustee Servicing Solutions ("First American"), formerly known as First American Loanstar Trustee Services LLC, erroneously sued as Loanstar Trustee Services. Plaintiff Joseph Edward Marty, proceeding pro se, appeared telephonically on his own behalf.

Upon consideration of all written materials filed in connection with the motions, arguments at the hearing, and the entire file, the undersigned recommends that defendants' motions to dismiss plaintiff's complaint be granted.

BACKGROUND

On November 4, 2011, plaintiff filed an adversarial compliant in the United States Bankruptcy Court for the Eastern District of California, Case No. 11-02706. On December 6, 2011, defendants Wells Fargo and MERS filed motions to withdraw reference of adversary proceeding in Bankruptcy Court to the District Court and to dismiss plaintiff's action. (Doc. Nos. 1 and 2.) On December 8, 2011, the assigned District Judge set a hearing on those motions for February 22, 2012.*fn1 (Doc. No. 3.) Plaintiff filed his opposition to the motion to dismiss filed by defendants Wells Fargo and MERS on December 19, 2011. (Doc. No. 4 at 7.*fn2 ) Defendants Wells Fargo and MERS filed their reply on February 15, 2012. (Doc. No. 8.) On February 21, 2012, plaintiff filed a sur-reply entitled "OBJECTION # 2."*fn3 (Doc. No. 12.)

On March 16, 2012, the assigned District Judge granted the defendants' motion to withdraw reference of the adversarial complaint and referred their motion to dismiss to the undersigned pursuant to Local Rule 302(c) (21). (Doc. No. 13.) On March 23, 2012, defendant First American filed its motion to dismiss the complaint. (Doc. No. 16.) Plaintiff filed his opposition to that motion on April 9, 2012. (Doc. No. 21.) That same day, plaintiff filed a motion to stay these proceedings. (Doc. No. 23.) On April 25, 2012, defendant First American filed its opposition to plaintiff's motion to stay (Doc. No. 31), and on April 27, 2012, filed its reply to plaintiff's opposition. (Doc. No. 33.) Defendants Wells Fargo and MERS filed an opposition to plaintiff's motion to stay on May 8, 2012. (Doc. No. 35.)

PLAINTIFF'S CLAIMS

In his complaint, plaintiff alleges as follows. He is the owner of the subject residential property located in El Dorado, California. (Compl. (Doc. No. 1-2) at 3.) On October 6, 2008, he borrowed $397,658.00 from New Line Mortgage, Div. Republic Mortgage Home Loan and executed a promissory note, secured by a Deed of Trust, thereby encumbering the property. (Id. at 3, 28-41.) The Deed of Trust was recorded with the El Dorado County Recorder's Office on October 20, 2008, and identified plaintiff as the borrower, defendant MERS as the nominee of the lender and Fidelity National Title as the trustee. (Id. at 3-4, 28.) When plaintiff defaulted on that mortgage loan, a Notice of Default and Election to sell was recorded on May 29, 2009, by defendant First American as an agent for defendant Wells Fargo. (Id. at 7, 61-62.) However, it was not until July 21, 2009, that an Assignment of Deed of Trust from defendant MERS to defendant Wells Fargo was recorded with the El Dorado County Recorder's Office. (Id. at 7, 65.) The individual who signed that Assignment of Deed of Trust as a certifying officer for defendant MERS, Chet Sconyers, was actually employed by defendant First American and not by defendant MERS. (Id. at 7.) Nonetheless, when the default was not cured, successor trustee defendant First American recorded a Notice of Trustee Sale with the El Dorado County Recorder's Office on September 3, 2009, initially setting a sale date of September 23, 2009 with respect to the subject property. (Id. at 7, 67.) On May 5, 2010, plaintiff filed a complaint in this court, "Case No.:2:10-cv-00555-GEB-DAD."*fn4 (Id. at 8.) On June 23, 2010, defendants "performed an unlawful foreclosure . . . without standing and without the power of sale." Id.

Based upon these allegations, plaintiff's complaint purports to state causes of action for declaratory judgment, fraud, estoppel, violation of the Real Estate Settlement Procedures Act, 12 U.S.C. § 2607(b), quiet title, and violation of the California Business & Professions Code.*fn5 In terms of relief, plaintiff essentially seeks an order restoring to him unencumbered title to the subject property, restraining defendants from attempting to foreclose the property and awarding plaintiff damages, fees and costs. (Id. at 9-26.)

LEGAL STANDARDS APPLICABLE TO DEFENDANTS' MOTIONS

The purpose of a motion to dismiss pursuant to Rule 12(b)(6)*fn6 is to test the legal sufficiency of the complaint. N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). "Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege "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, 556 U.S. 662,___, 129 S. Ct. 1937, 1949 (2009).

In determining whether a complaint states a claim on which relief may be granted, the court accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). In general, pro se complaints are held to less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, the court need not assume the truth of legal conclusions cast in the form of factual allegations. United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). While Rule 8(a) does not require detailed factual allegations, "it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation." Iqbal, 129 S. Ct. at 1949. A pleading is insufficient if it offers mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555. See also Iqbal, 129 S. Ct. at 1950 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."). Moreover, it is inappropriate to assume that the plaintiff "can prove facts which it has not alleged or that the defendants have violated the . . . laws in ways that have not been alleged." Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).

In ruling on a motion to dismiss brought pursuant to Rule 12(b)(6), the court is permitted to consider material which is properly submitted as part of the complaint, documents that are not physically attached to the complaint if their authenticity is not contested and the plaintiff's complaint necessarily relies on them, and matters of public record. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001).

ANALYSIS I. Res Judicata

Defendants argue that the allegations found in plaintiff's complaint are barred by the doctrine of res judicata. In support of this argument, defendants have requested that judicial notice be taken of documents filed in Joseph Edward Marty v. Wells Fargo Bank, et al., Case No. 2:10-cv-00555-GEB-DAD-PS. (Doc. Nos. 2 and 17.) The undersigned recommends that defendants' request for judicial notice of this court's own records be granted. See Fed. R. Evid. 201; Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001) (on a motion to dismiss, court may consider matters of public record); MGIC Indem. Corp. ...


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