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Harry Jones v. Jp Morgan Chase Bank

October 9, 2012

HARRY JONES,
PLAINTIFF,
v.
JP MORGAN CHASE BANK, N.A., DEFENDANT.



The opinion of the court was delivered by: Lucy H. Koh United States District Judge

States District Court For the Northern District of California

ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE

Plaintiff Harry Jones filed this action on January 31, 2012. ECF No. 1. On March 1, 2012, Defendant JP Morgan Chase Bank, N.A. ("Chase") moved to dismiss. ECF No. 6 ("Mot."). 19

Plaintiff filed an opposition ("Opp'n") on April 10, 2012, ECF No. 11, and Defendant filed a Reply 20 ("Reply") on April 17, 2012, ECF No. 14. Having considered the submissions of the parties and 21 the relevant law, the Court GRANTS Defendant's motion to dismiss without leave to amend. 22

I.BACKGROUND

Except where otherwise noted, the Court draws the following facts, taken as true for 24 purposes of a motion to dismiss, from Plaintiff's Complaint. Where, as here, the complaint 25 attaches exhibits, those exhibits are treated as part of the factual allegations of the complaint for 26 purposes of a motion to dismiss. See Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 27 1987); Fed. R. Civ. P. 10(c) ("A copy of a written instrument that is an exhibit to a pleading is a 28 part of the pleading for all purposes."). "Where an exhibit to a pleading is inconsistent with the pleading, the exhibit controls." Gamble v. GMAC Mortg. Corp., 2009 WL 400359, at *3 (N.D. 2 Cal. Feb. 18, 2009). 3

("WaMu"), secured by a Deed of Trust, on which the California Reconveyance Company was 6

Supervision, and the Federal Deposit Insurance Corporation ("FDIC") was named receiver. Id. at ¶ 8

Agreement") with Chase. Id. at ¶ 13. Plaintiff attached a copy of this agreement to his 10

Plaintiff alleges that the P&A Agreement "did not list Washington Mutual Bank, F.A., as a

purchased asset, [and] did not list any mortgage loans as purchased assets. The only relevant assets 13 purchased by Chase were the servicing rights under Washington Mutual's securitized mortgages." 14

Compl. at ¶ 13. The agreement itself, however, states that "the Assuming Bank hereby 15 purchases. all right, title, and interest of the Receiver in and to all of the assets. . . of the Failed

D, Article III, § 3.1. The P&A Agreement further provides that "the Assuming Bank specifically 18 purchases all mortgage servicing rights and obligations of the Failed Bank," id., and nowhere does 19 the agreement provide that this specific purchase of servicing rights is to the exclusion of the loans 20 themselves, which are included in the purchase of "all of the assets." The text of the P&A 21

Agreement is thus inconsistent with Plaintiff's allegation that Chase did not purchase the loan. 22

23 purchased WaMu's loans, including the right to foreclose on them. See Lomely v. JP Morgan 24

Accordingly, the Court GRANTS Defendant's request for judicial notice.

On April 27, 2007, to finance the purchase of the real property located at 14740 Palomino

Dr. in San Jose, California, Plaintiff obtained a loan from Washington Mutual Bank, F.A., 5

Trustee. Compl. ¶¶ 10-11. On September 25, 2008, WaMu was closed by the Office of Thrift 7

States District Court For the Northern District of California

12. That same day, the FDIC entered into a Purchase & Assumption Agreement ("P&A 9

Complaint.*fn1

Bank, whether or not reflected on the books of the Failed Bank as of Bank Closing." Compl. Exh. 17

Further, courts in this district have found, interpreting the same P&A agreement, that Chase

Chase Bank, N.A., 2012 WL 4123403 at *1 (N.D. Cal. Sept. 17, 2012) ("Pursuant to a Purchase 2 and Assumption Agreement. . . dated September 25, 2008, the FDIC transferred to Chase 'all right, 3 title, and interest of the Receiver in and to all of the assets' of WaMu, including the Loan."); Eng v. 4

Dimon, 2012 WL 3659600 at *1 (N.D. Cal August 24, 2012) ("JPMorgan has shown, however, 5 that it purchased all of Washington Mutual's assets, including the loan at issue here, pursuant to a 6

Purchase and Assumption Agreement. . . . JPMorgan, as Washington Mutual's successor in 7 interest, and Quality Loan as trustee, consequently had the right to initiate foreclosure after 8

[Plaintiff] defaulted on the loan.").In the face of this inconsistency between Plaintiff's allegations 9 and the contents of the P&A Agreement he attaches to his Complaint, the facts apparent from the 10 face of the P&A Agreement control. Thus, Chase purchased the loan, including the right to 11 foreclose on ...


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