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Ralph Beltran, Ruby Ann Beltran v. Accubanc Mortgage

November 20, 2012




This is an action, presumed to be in diversity, by plaintiffs Ralph and Ruby Beltran ("Plaintiffs") against PNC Bank, National Association*fn1 ("PNC Bank") and Cal-Western Reconveyance Corporation ("Cal-Western"). Presently before the Court is a motion to dismiss Plaintiffs' First Amended Complaint ("FAC"). See Court's Docket, Doc. No. 17.

On February 27, 2012, Plaintiffs filed their original Complaint against PNC Bank. See Court's Docket, Doc. No. 1. On March 8, 2012, Plaintiffs sought a temporary restraining order. See Court's Docket, Doc. No. 3. The motion for TRO was denied. See Court's Docket, Doc. No. 4. In response, Plaintiffs filed a motion seeking to have the undersigned recuse himself from the case. See Court's Docket, Doc. Nos. 9 and 12. On March 22, 2012, PNC Bank filed a motion to dismiss. See Court's Docket, Doc. No. 5. This motion to dismiss was granted by this Court on July 10, 2012, with a twenty-one day leave to amend. See Court's Docket, Doc. No. 15. Plaintiffs filed their FAC on August 3, 2012. See Court's Docket, Doc. No. 16. On August 20, 2012, PNC Bank filed this motion. Plaintiffs have filed no opposition.


I. 12(b)(6)

A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. Rule Civ. Proc. 8(a)(2). Where the plaintiff fails to allege "enough facts to state a claim to relief that is plausible on its face," the complaint may be dismissed for failure to allege facts sufficient to state a claim upon which relief may be granted. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); see Fed.R.Civ.P. 12(b)(6). A dismissal for failure to state a claim is brought under Federal Rule of Civil Procedure Rule 12(b)(6) and may be based on the lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable legal theory. Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001).

When the court reviews a complaint under Rule 12(b)(6), all of the complaint's material allegations of fact are taken as true, and the facts are construed in the light most favorable to the non-moving party. Marceau v. Blackfeet Hous. Auth., 540 F.3d 916, 919 (9th Cir. 2008); Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir. 1999). However, the court need not accept conclusory allegations, allegations contradicted by exhibits attached to the complaint or matters properly subject to judicial notice, unwarranted deductions of fact, or unreasonable inferences. Daniels-Hall v. National Educ. Ass'n., 629 F.3d 992, 998 (9th Cir. 2010). Although they may provide the framework of a complaint, legal conclusions are not accepted as true and "[t]hreadbare recitals of elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S. Ct, 1937, 1949-50 (2009); see also Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136 (9th Cir. 2003).

II. Judicial Notice

Generally, the court considers only the complaint and attached documents in deciding a motion to dismiss, but the court may also take judicial notice of matters of public record without converting the motion into a motion for summary judgment. Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001). PNC Bank has requested judicial notice of several documents, including the Grant Deed of the subject property; two Deeds of Trusts related to the subject property; a Substitution of Trustee and Full Reconveyance; the Notice of Default; the Notice of Trustee's Sale; a printout from the Federal Deposit Insurance Corporation ("FDIC") with a timeline of the corporate history of National City Bank; and a printout from the FDIC website with a timeline of the corporate history of PNC Bank, National Association. The website printouts show the dates of all acquisitions, name changes, and mergers related to the respective corporations. Such documents are properly the subject of judicial notice because the contents of these documents contain facts that are not subject to reasonable dispute; as public records and government websites, the facts therein "can be accurately and readily determined from sources whose accuracy cannot reasonably by questioned." Fed. R. Evid. 201(b); See Permito v. Wells Fargo Bank, 2012 WL 1380322, *2 (N.D. Cal. Apr. 20, 2012). See also Vargas v. Wells Fargo Bank, N.A., 2012 WL 2931220, *7 (N.D. Cal. July 18, 2012). The court will therefore take notice of the undisputed facts contained in these documents. See Lee v. City of Los Angeles, 250 F.3d 668, 690 (9th Cir. 2001).


The Court takes as true the facts set forth in the FAC and those facts that can reasonably be inferred therefrom. The Court also considers facts contained in attachments to the FAC and documents of which the Court has taken judicial notice and facts that can be reasonably inferred therefrom each.

Plaintiffs purchased the subject property on April 21, 2004. See Court's Docket, Doc. No. 16, ¶ 7. Plaintiffs took out a loan to purchase the property, the Promissory Note for which was signed on November 17, with the Deed of Trust, signed on the same day, as a security. See Court's Docket, Doc. No. 16, 31. The lender was National City Mortgage Company dba AccuBanc Mortgage, the trustee was National City Mortgage Co, and the Beneficiary was AccuBanc Mortgage. See Court's Docket, Doc. No. 16, ¶¶ 7, 8, 9; Court's Docket, Doc. No. 19, 31. Plaintiffs received notice of PNC Bank's involvement with the mortgage through a letter, received on an unspecified date, that stated "your loan was recently transferred from AccuBank [sic] Mortgage. Your first payment to PNC Bank is due 00/00/2007." See Court's Docket, Doc. No. 16, ¶ 23. On November 23, 2011, defendant Cal-Western Reconveyance Corporation, as an agent for PNC Bank, filed a Notice of Default against the subject property. See Court's Docket, Doc. No. 16, ¶ 14.

Presumably in January 2012,*fn2 Plaintiffs submitted to PNC Bank two "Qualified Written Requests" ("QWR") under the Real Estate Settlement Procedures Act ("RESPA") requesting various documents, suggesting they had heard that PNC Bank "may have been accused of engaging in one or more predatory servicing or lending and servicing schemes." See Court's Docket, Doc. No. 16, 8-30. PNC Bank objected to the QWRs because Plaintiffs did not "outline a specific dispute or discrepancy [or] request investigation by the servicer or mortgagor." See Court's Docket, Doc. No. 16, 7. However, PNC Bank did provide the following documents:

"Origination Note, Origination Mortgage, Good Faith Estimate, HUD1 Settlement Statement, the Truth-In-Lending Disclosure, the Payment History and Payment History Transaction Codes, and the October 2009 letter informing Plaintiffs of the transfer from National City Mortgage to PNC Mortgage." See Court's Docket, Doc. No. 16, 7. None of these documents are before the Court now.

It is not clear to the Court whether Plaintiffs contend that they were current on their mortgage payments or if they concede that they were in default. From the QWRs, the Court can infer that perhaps the Plaintiffs felt that their mortgage payments were miscalculated, but it cannot be certain. See Court's Docket, Doc. No. 16, 11.

On March 1, 2012, a Notice of Trustee's Sale was recorded by Cal-Western Reconveyance Corporation. See Court's Docket, Doc. No. 19, Exhibit "F." The Sale was scheduled for March 21, 2012. See Court's Docket, Doc. No. 19, Exhibit "F." The Court is unaware if the sale ever took place.

Plaintiffs allege two claims for relief. The first is an action to Quiet Title. The second is an allegation of Fraud. Plaintiffs allege that PNC Bank cannot initiate non-judicial foreclosure proceedings or enforce the mortgage because they are, as the Plaintiffs put it, "an interloper with no interest in the property." Court's Docket, Doc. No. 16, ¶ 17. Plaintiffs argue that because they are not aware of any assignment of the note to PNC Bank or of any substitution filed and that PNC Bank was not a party to the original transaction, PNC Bank cannot rightfully enforce the note on the property or initiate foreclosure. See Court's Docket, Doc. No. 16, ¶¶ 6, 15-16. Plaintiffs also allege that by claiming to be the lender by merger, PNC Bank was fraudulently inducing Plaintiffs to make payments to them. See Court's Docket, Doc. No. 16, ¶ 23. Plaintiffs argue that California Civil Code section 2924, identifying the proper entities who can initiate a non-judicial foreclosure, does not apply because PNC Bank is not the Lender, Trustee, Mortgagee, or Beneficiary under the original Deed of Trust for the subject property. Court's Docket, Doc. No. 16, ¶ 27.


I. Recusal

Plaintiffs have made two filings entitled "Motion to Disqualify Judge Title 28, CCP 170.6" in which Plaintiffs state "Plaintiffs motion this Court to disqualify the Judge under Title 28, part 1, chapter 21 sub section 455 and CCP 170.6. Plaintiffs believe the assigned Judge is biased and they will not get a fair and impartial hearing." Docs. 9 and 12. Title 28 U.S.C. ...

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