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Russell C. Maynard v. Wells Fargo Bank

October 12, 2012


The opinion of the court was delivered by: Hon. Anthony J. Battaglia U.S. District Judge


Presently before the Court is Defendant Wells Fargo Bank, N.A.("Wells Fargo") and Defendant Fidelity National Title Insurance Company ("Fidelity") (collectively "Defendants")'s motion to dismiss Plaintiff Russell Maynard's ("Plaintiff") Complaint.*fn1 (Doc. Nos. 3, 11.) Plaintiff filed an opposition, (Doc. Nos. 8 and 13), and Defendants filed a response, (Doc. No. 9). Pursuant to Civil Local Rule 7.1.d.1, the Court finds this motion suitable for determination on the papers and without oral argument. Accorindgly, the motion hearing scheduled for October 19, 2012 is hereby vacated. For the reasons described below, the Court GRANTS Defendants' motion to dismiss.*fn2


On May 19, 2004, Russell C. Maynard and Rose A. Maynard (the "Maynards") executed a Deed of Trust in the amount of $265,000 to obtain a loan from Wells Fargo ("The Loan"). The Loan is secured by certain real property located at 10221 Trails End Circle, San Diego, CA 92126 ("The Property"). (Compl. ¶ 2.) The Maynards subsequently defaulted on the Loan. (Id. ¶ 8.) After the arrears on the Loan reached $18,750.07, Fidelity, as Wells Fargo's trustee on the Deed of Trust, recorded a Notice of Default on August 9, 2011. (Id. ¶ 8.)

On February 13, 2012, the Loan was assigned to U.S. Bank Association, as trustee, successor in interest to Wachovia Bank, N.A., as trustee for Wells Fargo Asset Securities Corporation, Mortgage Pass-Through Certificates, Series 2004-M (the "Assignment"). The Assignment was recorded. (Doc. No. 3, p. 2:11-12.) Notwithstanding the Assignment, Wells Fargo retained the servicing rights on the Loan. (Id. at p. 2:12-13.) On February 24, 2012, Fidelity recorded a Notice of Trustee's Sale. (Id. at p. 2:14-15.) However, the trustee sale has not yet occurred. (Compl. ¶ 18.)

Plaintiff filed his Complaint in San Diego Superior Court on May 10, 2012. Wells Fargo removed this action to Federal Court on June 13, 2012. (Doc. No. 1.) The Complaint alleges seven causes of action: (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 Business and Professions Code § 17200; and (7) violation of the federal Truth in Lending Act ("TILA").


A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the pleadings and allows a court to dismiss a complaint upon a finding that the plaintiff has failed to state a claim upon which relief may be granted. See Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). The court may dismiss a complaint as a matter of law for: (1) "lack of cognizable legal theory," or (2) "insufficient facts under a cognizable legal claim." SmileCare Dental Grp. v. Delta Dental Plan of Cal., 88 F.3d 780, 783 (9th Cir. 1996) (citation omitted). However, a complaint survives a motion to dismiss if it contains "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).

Notwithstanding this deference, the reviewing court need not accept "legal conclusions" as true. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). It is also improper for the court to assume "the [plaintiff] can prove facts that [he or she] has not alleged." Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). On the other hand, "[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Iqbal, 556 U.S. at 678. The court only reviews the contents of the complaint, accepting all factual allegations as true, and drawing all reasonable inferences in favor of the nonmoving party. al-Kidd v. Ashcroft, 580 F.3d 949, 956 (9th Cir. 2009) (citations omitted).

When resolving a motion to dismiss for failure to state a claim, the court may consider matters properly subject to judicial notice. See Fed. R. Evid. 201(b) (stating that a court may take judicial notice of matters either generally known within the trial court's territorial jurisdiction, or capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned); see also Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001); Mack v. South Bay Beer Distribs., , 798 F.2d 1279, 1282 (9th Cir. 1986) (stating that on a motion to dismiss a court may properly look beyond the complaint to matters of public record and doing so does not convert a Rule 12(b)(6) motion to one for summary judgment). Additionally, under the doctrine of incorporation by reference, the court may consider on a Rule 12(b)(6) motion not only documents attached to the complaint, but also documents whose contents are alleged in the complaint, provided the complaint "necessarily relies" on the documents or contents thereof, the documents authenticity is uncontested, and the document's relevance is uncontested. Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010).


Wells Fargo and Fidelity move to dismiss all claims for failing to join an indispensable party, lack of standing to challenge a non-judicial foreclosure, and for failure to state a claim upon which relief can be granted. Each ground for dismissal is discussed in turn.

Failure to Join an Indispensable Party

Federal Rule of Civil Procedure 19(a)(1) provides that persons are required to be joined, where feasible, if in that person's absence, the court cannot accord complete relief among existing parties.

The Rule further provides that a party must be joined where disposing of the action in the person's absence may impair the person's ability to protect their interest. Fed. R. Civ. Pro. 19(a)(1)(B)(i). Here, Plaintiff Russell Maynard executed the Loan as "joint tenants" along with co-borrower and wife Rose A. Maynard. (Compl., Exh. A.) Thus, whatever the final disposition in this case, it will likely affect Mrs. Maynard to the same extent it affects Plaintiff. As a result, the Court cannot grant complete relief in her absence because she is jointly liable under the Loan.

Moreover, the interests of Mrs. Maynard will be prejudiced should this case continue because the outcome of this litigation will affect her rights in relation to the Property and the subject Loan. Without being joined as a party, Mrs. Maynard will be unable to assert any claims and/or defenses that may affect the Court's final judgment. Additionally, Defendants face the possibility of multiple and conflicting rulings should Mrs. Maynard seek judicial relief at a later date. Finally, Plaintiff has not demonstrated why joinder would not be feasible. Accordingly, the Court GRANTS Defendant's motion to dismiss, with leave ...

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