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Marc A. Becker v. Wells Fargo Bank

August 9, 2012

MARC A. BECKER,
PLAINTIFF,
v.
WELLS FARGO BANK, NATIONAL ASSOCIATION, FEDERAL NATIONAL MORTGAGE ASSOCIATION, AND DOES 1-10, DEFENDANTS.



MEMORANDUM AND ORDER RE: MOTION TO DISMISS

Plaintiff Marc A. Becker filed suit against defendants Wells Fargo Bank, National Association ("Wells Fargo") and Federal National Mortgage Association ("FNMA") in state court, asserting claims arising from defendants' allegedly wrongful conduct related to a residential loan. Defendants then removed the proceeding to this court on the basis of diversity jurisdiction. (Docket No. 1.) Currently before the court is defendants' motion to dismiss the Complaint in its entirety for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). (Docket No. 6.)

I. Factual and Procedural Background

Plaintiff purchased the property at 2217 Quarry Way in Rocklin, California ("Quarry Way property") in 2003. (Notice of Removal Ex. C ("Compl.") ¶¶ 7-8 (Docket No. 1).) In 2005, plaintiff refinanced the Quarry Way property with the Union Federal Bank of Indianapolis ("UFB"). (Id. ¶ 9.)

Four years later, in 2009, plaintiff alleges that he fell behind on his mortgage payments and sought modification. (Id. ¶ 10.) In June 2009, NDEx West, LLC ("NDEx") recorded a Notice of Default. (Compl. ¶ 11; Defs.' Req. for Judicial Notice ("RJN") Ex. 4 (Docket No. 8).) That same month, an Assignment of Deed of Trust was recorded that transferred the Deed of Trust from UFB to Wells Fargo. (Compl. ¶ 12; RJN Ex. 5.) In July, Wells Fargo recorded a Substitution of Trustee that substituted NDEx as trustee. (Compl. ¶ 13; RJN Ex. 6.)

A Notice of Trustee's Sale was recorded on September 14, 2009, listing September 30, 2009, as the sale date. (Compl. ¶ 14; RJN Ex. 7.) The sale did not occur on the scheduled date, and for the next eighteen months plaintiff allegedly endeavored to obtain a loan modification. (Id. ¶ 15.) His request for a modification was ultimately rejected in April of 2011. (Id.)

According to plaintiff, when Wells Fargo denied him a loan modification, it "agreed to allow Plaintiff to pursue a short sale" of the Quarry Way property. (Id.) Plaintiff alleges that he contracted with a short sale buyer and that "Wells Fargo approved the short sale so long as the price was increased" by twenty-eight thousand dollars. (Id. ¶ 16.)

According to plaintiff, although he was able to convince the short sale buyer to agree to the higher price, Wells Fargo did not postpone the foreclosure sale date for his property and the property was sold at a trustee's sale on October 17, 2011. (Compl. ¶¶ 17-18; RJN Ex. 12.) As a result, the short sale did not occur. (Compl. ¶¶ 17-18, 26.)

Plaintiff alleges that there were irregularities regarding the identity of the purchaser at the trustee's sale in that it is not clear if the purchasing "beneficiary" was Wells Fargo or FNMA. (Id. ¶¶ 18-19.) Specifically, plaintiff alleges that no assignment from Wells Fargo to FNMA was recorded. (Id. ¶ 19; but see RJN Ex. 8 (recorded Assignment of Deed of Trust transferring interest from Wells Fargo to FNMA)).

Plaintiff has filed several bankruptcy petitions, the most recent of which is a Chapter 13 petition filed July 8, 2011. (See RJN Exs. 17-21.) Having consulted the electronic docket for that proceeding, it appears to the court that that proceeding is ongoing.

Plaintiff brings claims for (1) declaratory judgment, (2) specific performance, (3) intentional interference with prospective advantage, (4) breach of the implied covenant of good faith and fair dealing, and (5) exemplary damages. (Docket No. 1, Ex. C.) Only the first claim is brought against all defendants; the three remaining claims are brought against Wells Fargo only. Defendants now move to dismiss all claims for failure to state a claim under Rule 12(b)(6). (Docket No. 6.)

II. Request for Judicial Notice

In general, a court may not consider items outside the pleadings when deciding a motion to dismiss, but it may consider items of which it can take judicial notice. Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994). A court may take judicial notice of facts "not subject to reasonable dispute" because they are either "(1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201. Judicial notice may properly be taken of matters of public record outside the pleadings. See MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986).

Defendants request that the court judicially notice several recorded documents pertaining to the Quarry Way property. (See RJN Exs. 2, 4-9, 12, 14-16.) The court will take judicial notice of these documents, since they are matters of public record whose accuracy cannot be questioned. See Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001).

Defendants also request that the court judicially notice the Chapter 13 bankruptcy petition filed by plaintiff, as well as several electronic dockets associated with plaintiff's various bankruptcy filings. (RJN Exs. 17-21.) As these documents are public records capable of accurate and ready determination, they will be judicially noticed as well. See Coward v. JP Morgan Chase Bank, Nat'l Ass'n, No. ...


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