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Nicholas Dean Stevenson v. Wells Fargo & Company

December 5, 2012


The opinion of the court was delivered by: Allison Claire United States Magistrate Judge


Before the court is defendant Wells Fargo & Company's ("Wells Fargo") July 6, 2012 motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff opposes the motion. On review of the motion, the documents filed in support and opposition, and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:


On April 21, 2005, plaintiff entered into a residential mortgage loan agreement with World Savings Bank, FSB,*fn1 secured by real property located at 8300 E. Granite Dr., Granite Bay, CA 95746. Compl. ¶ 2; Attach. (Doc. No. 1 at 56). Plaintiff secured payment of the principal and interest sums with a Deed of Trust ("DOT") that was recorded with the Placer County Recorder's Office on May 25, 2005. Compl., Attach. (Doc. No. 1 at 56-57). On November 25, 2008, a Notice of Default was recorded, id. (Doc. No. 1 at 47-48), and on May 12, 2009, a Notice of Trustee's Sale was recorded, id. (Doc. No. 1 at 51). On June 24, 2009, the Subject Property was sold at a foreclosure sale. Id. ¶ 4.


Plaintiff filed suit on June 11, 2012 against defendant Wells Fargo and Does 1-10 bringing claims for violation of the Truth in Lending Act ("TILA"), 15 U.S.C. § 1601 et seq.; fraudulent omissions; violation of California's Bus. & Prof. Code § 17200 et seq.; breach of the covenant of good faith and fair dealing; and breach of contract. The gravaman of plaintiff's complaint is that the defendant's "Pick-a-Payment Mortgage" program (also known as an adjustable rate mortgage) that plaintiff entered into on April 21, 2005 violated state and federal law because it was premised upon misrepresentations and material omissions.

On July 6, 2012, Wells Fargo filed the instant motion to dismiss. Plaintiff filed his opposition on August 13, 2012. Wells Fargo has filed a reply. This matter is now fully briefed and ready for disposition.


The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal sufficiency of the complaint. N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). "Dismissal 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). A plaintiff is required to allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1974 (2007). Thus, a defendant's Rule 12(b)(6) motion challenges the court's ability to grant any relief on the plaintiff's claims, even if the plaintiff's allegations are true.

In determining whether a complaint states a claim on which relief may be granted, the court accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989).

The court is permitted to consider material properly submitted as part of the complaint, documents not physically attached to the complaint if their authenticity is not contested and the complaint necessarily relies on them, and matters of public record. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001). Matters of public record include pleadings and other papers filed with a court. Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986). The court need not accept as true conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).


Jurisdiction over this case hinges on the presence of an actionable federal claim. The court therefore begins by addressing plaintiff's First Cause of Action, which alleges that defendant violated TILA's disclosure requirements by misleading and defrauding plaintiff at the time of the loan's origination. TILA and its implementing regulation, 12 C.F.R. ยง 226 ("Regulation Z"), require lenders to make certain disclosures in connection with consumer loans. TILA's purpose is to "protect consumers' choice through full disclosure and to guard against the divergent and at times fraudulent practices ...

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