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Bever-Leigh B. Penney v. Wells Fargo Bank

June 6, 2012


The opinion of the court was delivered by: Hon. Otis D. Wright, II United States District Judge



Before the court are Defendants' three concurrently filed motions:

(1) Defendant Wells Fargo Bank, N.A.'s*fn1 March 27, 2012 Motion to Dismiss the Entirety of Plaintiff Bever-Leigh B. Penney's Second Amended Complaint ("SAC") and Motion to Strike Portions of Plaintiff's SAC (Dkt. No. 69); (2) Defendant Stewart Lender Service's ("SLS") Motion to Dismiss Plaintiff's SAC (Dkt. No. 72); and (3) Defendant LSI Title Company's*fn2 ("LSI") Motion to Dismiss Plaintiff's SAC (Dkt. No. 73). Having carefully considered the papers filed in support of and in opposition to the instant Motions, the Court deems the matter appropriate for decision without oral argument. See Fed. R. Civ. P. 78; C. D. Cal. L. R. 7-15.


On May 19, 1998, Plaintiff obtained a fixed-rate mortgage loan for $269,500.00 from Di Tech Funding Corporation, which was secured by a deed of trust ("DOT") encumbering the property located at 9404 Wayside Drive, Shadow Hills, California 91040. (Wells Fargo's Request for Judicial Notice ("RJN"),*fn3 Exs. A, B.) This property includes two parcels of real property identified as APN 2549-016-001 ("001 Lot") and APN 2549-016-004 ("004 Lot"). (RJN Ex. B.) In connection with the loan, Plaintiff executed a promissory note ("Note") whereby she agreed to make fixed payments of $1,884.38 per month. (RJN Ex. A.) The DOT expressly permitted the lender/beneficiary to appoint a loan servicer to collect payments on its behalf. (RJN Ex. B; Mot. 18.)

On September 24, 1998, Di Tech executed a Corporation Assignment of Deed of Trust, which assigned Plaintiff's DOT to GE Capital Mortgage Services. (RJN Ex. C.) On March 8, 2005, GE Capital executed a second Assignment of Deed of Trust ("ADOT") assigning Plaintiff's DOT to Wells Fargo. (RJN Ex. D.) The ADOT was executed by Sherry Doza on behalf of GE Capital and filed with the Los Angeles County Recorder's office on April 6, 2005. (Id.; SAC ¶¶ 258, 262.) At that time, Doza was also an employee of SLS. (SAC Ex. I; SAC ¶ 250.)

Between July 1, 2010, and November 16, 2010, Plaintiff made various mortgage payments totaling $9,026.01, including a $700.00 payment in August 2010 and a $550.00 payment in November 2010. (SAC ¶ 52.) As of December 29, 2010, Plaintiff was in default on her mortgage in the amount of $15,192.28. (RJN Ex. E.) As a result of Plaintiff's default, a Notice of Default and Election to Sell Under Deed of Trust was recorded on December 30, 2010, in the Los Angeles County Recorder's Office. (Id.) The Notice of Default expressly incorporated the Deed of Trust. (Id.) Thereafter, on May 4, 2011, a Substitution of Trustee was recorded against the Property. (RJN Ex. D.) Finally, a Notice of Trustee's Sale was recorded against the Property on May 16, 2011. (RJN Ex. G.)

Beginning in February 2011, Wells Fargo phone representatives initially informed Plaintiff that "no foreclosure proceedings would take place on Plaintiff's property, starting from the time Defendant Wells Fargo received an application from Plaintiff for a U.S. Government HAMP (Home Affordable Mortgage Program) loan modification, and continuing throughout the entire period of the loan modification process." (SAC ¶ 59.)

On March 24, 2011, Plaintiff received a letter from Wells Fargo informing her that "there is a program available that may help you. If you qualify under the federal government's Home Affordable Modification program and comply with the terms of the Home Affordable Modification Program Trial Period Plan, we will modify your mortgage loan and you can avoid foreclosure." (SAC Ex. M.) In addition, the letter advised Plaintiff:

If you meet the eligibility criteria, you will be offered a Trial Period Plan. The monthly trial period payments will be based on the income documentation that you provide. They will be an estimate of what your payment will be if we are able to modify your loan under the terms of the program. If you do not qualify for a loan modification, we will work with you to explore other options available to help you keep your home or ease your transition to a new home. Be sure you continue making your regular mortgage payments until you hear from us about your eligibility for this program. While we're reviewing your information, your home will not be referred to foreclosure or sold at a foreclosure sale. (Id.)

On February 7, 2011, Plaintiff listed the 004 Lot with a real estate agent with the intent to sell the land in order to rectify arrearage on her mortgage. (SAC ¶¶ 38, 71.)

On April 9, 2011, Wells Fargo sent a second letter to Plaintiff about the Home Affordable Mortgage Program ("HAMP") program. (SAC Ex. N.)

On May 25, 2011, Wells Fargo's Loss Mitigation Department informed Plaintiff that the Trustee sale had been scheduled for June 9, 2011. (SAC ¶ 72.) To date, the foreclosure sale has been postponed multiple times, and the trustee's sale is still pending. (SAC ¶ 33.)

As a result of these facts and contentions, Plaintiff filed a Complaint on June 8, 2011, in Los Angeles County Superior Court against Defendants NDeX West, LLC; Wells Fargo Bank N.A.; and Wells Fargo Bank Home Mortgage, Inc. alleging, inter alia, claims for fraud, unfair debt collection practices, and wrongful foreclosure. (Dkt. No. 1.) On July 6, 2011, Wells Fargo removed the case to this Court based on diversity jurisdiction pursuant to 28 U.S.C. § 1332. (Id.) On October 18, 2011, this Court granted Plaintiff leave to amend her Complaint. (Dkt. No. 29.) The same day, Plaintiff filed her First Amended Complaint ("FAC"), which included several new claims and Defendants. (Dkt. No. 30.) Defendants Wells Fargo, SLS, and LSI each filed a Motion to Dismiss Plaintiff's FAC. (Dkt. Nos. 32, 47, 48.)

On March 27, 2012, this Court granted in part and denied in part Defendants' Motions to Dismiss. (Dkt. No. 63.) This Court dismissed with prejudice Plaintiff's fourth and fifth claims for violation of the RFDCPA and Plaintiff's sixth claim for violation of California Civil Code section 2924(a)(1). (Id. at 18--19.) The Court dismissed Plaintiff's remaining claims without prejudice and granted Plaintiff leave to amend her complaint only to state these claims against Defendants. (Id. at 19.)

Plaintiff's SAC contains a total of 11 claims, styled as follows:

(1) promissory estoppel in violation of Restatement (Second) of Contracts section 90 by Wells Fargo;

(2) promissory fraud in violation of Restatement (Second) of Torts by Wells Fargo;

(3) fraudulent misrepresentation in violation of Restatement (Second) of Torts section 526 by Wells Fargo;

(4) false or misleading representation in violation of 15 U.S.C. § 1692E and fraud in violation of California Civil Code section 1572 by Wells Fargo;

(5) false or misleading representation in violation of 15 U.S.C. § 1692E and negligent misrepresentation by Wells Fargo, NDeX, LSI, and But;

(6) unfair practices under California Business and Professions Code section 17200, et seq. by all defendants;

(7) negligence under Restatement (Second) of Torts section 282 by LSI Juarez, and Boswell;

(8) fraud, misrepresentation, false or misleading representations in violation of 15 U.S.C. § 1692E and conspiracy in violation of the Restatement (Second) of Torts section 526 by Wells Fargo, NDeX, LSI, and But;

(9) negligent infliction of emotional distress by Wells Fargo;

(10) fraud in violation Restatement (Second) of Torts section 526 by Wells Fargo, SLS, Doza and Robertson;

(11) fraud in violation Restatement (Second) of Torts section 526 and false or misleading representation by Wells Fargo.

Defendants now collectively move to dismiss Plaintiff's SAC in its entirety. The Court addresses the parties' arguments below.


Dismissal under Rule 12(b)(6) 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). "To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), a complaint generally must satisfy only the minimal notice pleading requirements of Rule 8(a)(2)." Porter v. Jones, 319 F.3d 483, 494 (9th Cir. 2003). Rule 8(a)(2) requires "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). For a complaint to sufficiently state a claim, its "[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). While specific facts are not necessary so long as the complaint gives the defendant fair notice of the claim and the grounds upon which the claim rests, Erickson v. Pardus, 551 U.S. 89, 93 (2007), a complaint must nevertheless "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).

Iqbal's "plausibility standard" is "not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement of relief." Id. (internal citation and quotation marks omitted). "A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" Id. (citing Twombly, 550 U.S. at 555). The determination whether a complaint satisfies ...

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