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Martha Alvarez v. Wells Fargo Bank

January 31, 2013

MARTHA ALVAREZ, PLAINTIFF,
v.
WELLS FARGO BANK, N.A., DEFENDANT.



The opinion of the court was delivered by: Jesus G. Bernal United States District Judge

ORDER (1) GRANTING DEFENDANTS' MOTION TO DISMISS (DOC. NO. 13); AND (2) VACATING THE FEBRUARY 4, 2013 HEARING [Motion filed on December 12, 2012]

Plaintiff Martha Alvarez brings this action asserting eight claims related to the pending trustee's sale of her residence. Before the Court is a Motion to Dismiss filed by Defendant Wells Fargo Bank, N.A. ("Wells Fargo"). (Doc. No. 13.) The Court finds Defendant's Motion appropriate for resolution without a hearing. See Fed. R. Civ. P. 78; L.R. 7-15. After reviewing and considering all papers filed in support of and in opposition to the Motion, the Court GRANTS Defendant's Motion WITHOUT LEAVE TO AMEND.

I. BACKGROUND

A. Allegations in the Complaint

On January 2, 2008, Plaintiff took out an adjustable rate mortgage on her residence for $860,000, executing a Note secured by a Deed of Trust in favor of lender World Savings Bank, FSB ("World Savings"), to which Wells Fargo is presently the successor in interest. (First Amended Complaint ("FAC") ¶¶15, 19, Ex. D ("Deed of Trust").) The World Savings agent allegedly represented to Plaintiff that she would receive a 30-year fixed-rate mortgage loan but did not disclose to Plaintiff that the loan had a finance charge of $1,665,027.56 and that the principal balance of the loan would increase. (FAC ¶¶ 15, 16.) Plaintiff attempted to modify her loan, but Defendant or agents thereof denied her application to do so on six occasions. (Id. ¶ 17.) Defendant recorded a notice of default and notice of trustee's sale of the property; the sale date is currently pending. (Id. ¶ 18.)

B. Procedural History

Plaintiff through her counsel filed her original Complaint on October 1, 2012, in the California Superior Court for the County of Los Angeles, alleging claims for

1. Violation of California Bus. & Prof. Code § 17200 et seq.;

2. Unfair and Deceptive Business Practices in Loan Servicing;

3. Unfair and Deceptive Business Practices in Foreclosure Process;

4. Fraud in Loan Origination;

5. Set Aside Pending Trustee's Sale Based on Wrongful Foreclosure Proceedings (Cal. Civ. Code § 2923.5);

6. Violation of RESPA;

7. Breach of Implied Covenant of Good Faith and Fair Dealing;

8. Cancellation of Void Contract and Restitution;

9. Quiet Title; and

10. Declaratory Relief (Compl., Ex. 1 to Not. of Removal (Doc. No. 1).)

Defendant removed the action to this Court on November 9, 2012. (See Not. of Removal.) On November 16, 2012, Defendant filed a Motion to Dismiss and a Motion to Strike (Doc. Nos. 7, 8), both of which were mooted by Plaintiff's FAC ...


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