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Title: Brian Mclaughlin v. Wells Fargo Bank

March 19, 2013

TITLE: BRIAN MCLAUGHLIN
v.
WELLS FARGO BANK, N.A. ET AL.



The opinion of the court was delivered by: The Honorable David O. Carter, Judge

O

CIVIL MINUTES -- GENERAL

PRESENT: THE HONORABLE DAVID O. CARTER, JUDGE

Julie Barrera N/A Courtroom Clerk Court Reporter ATTORNEYS PRESENT FOR PLAINTIFF: ATTORNEYS PRESENT FOR DEFENDANT: None Present None Present PROCEEDINGS: (IN CHAMBERS): ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

Before the Court is Defendants' Motion to Dismiss Plaintiff's Second Amended Complaint. Motion to Dismiss ("Mot.") (Dkt. 37). After reviewing the motion, opposition, and reply, the Court hereby GRANTS Defendants' Motion to Dismiss. *fn1

Plaintiff's claims are DISMISSED without leave to amend.

I.Background

On September 14, 2006, Plaintiff Brian McLaughlin ("Plaintiff") executed a mortgage note and Deed of Trust in favor of Countrywide Bank, N.A. ("Countrywide") for the purchase of the property located at 753 Barracuda Way, Laguna Beach, CA ("the property"). Second Amended Complaint ("SAC") (Dkt. 36) ¶ 27. Recontrust Company, N.A. ("Recontrust") was named the trustee and Mortgage Electronic Registration Systems ("MERS") was listed as the nominee of the lender and beneficiary. Id.

Defendants claim that MERS, as the beneficiary of the Deed of Trust, assigned the Deed of Trust from Countrywide to Defendant Bank of America on September 6, 2011. Mot. at 2. Defendants then allege that on April 4, 2012, Bank of America assigned the Deed of Trust to Defendant Wells Fargo as trustee on behalf of HarborView Mortgage Loan Trust, Mortgage Loan Pass-Through Certificates Series 2006-12 ("HarborView Trust"). Id. Both Defendants and Plaintiff agree that at some point before MERS allegedly assigned the Deed of Trust to Bank of America, Plaintiff defaulted on his loan. SAC ¶¶ 109-110 (claiming that at the time both Wells Fargo and Bank of America were assigned Plaintiff's Note and Deed of Trust it was in default); Mot. at 2 ("On or about September 6, 2011, MERS . . . assigned the Deed of Trust from Countrywide to defendant Bank of America, N.A. . . . In or around late 2010, McLaughlin defaulted on the Note. . . . On or about April 4, 2012, [Bank of America] assigned the Deed of Trust to Defendant Wells Fargo Bank . . ."). Plaintiff alleges that these transfers were fraudulently executed, first by an agent of Bank of America posing as Vice President of MERS, and then by an agent of Wells Fargo posing as Vice President of Bank of America. SAC ¶ 60. According to Plaintiff, these assignments were made by "robo-signers," posing as agents of the holders of the Deed of Trust in order to make fraudulent assignments to themselves. Id. Thereafter, on April 25, 2012, Recontrust-acting as agent for beneficiary Wells Fargo-recorded a Notice of Trustee's Sale informing Plaintiff that he faced a foreclosure of the property. SAC ¶ 72.

A. State Court Action

On April 12, 2012, Plaintiff filed an action in state court seeking declaratory relief, alleging that Defendants were not the legitimate successors in interest to his loan. Request for Judicial Notice (Dkt. 21) at Ex. 6; McLaughlin v. Wells Fargo, N.A., et al., 30-2012-00561729-CU-CO-CJC (Orange County Sup. Ct. August 15, 2012). The Superior Court granted Plaintiff's application for a Temporary Restraining Order ("TRO") and the Trustee's Sale was postponed to July 6, 2012. Id. at Ex. 8. On June 29, 2012, the Superior Court subsequently denied Plaintiff's application for a preliminary injunction, finding the plaintiff was unlikely to succeed on the merits. Id. at Ex. 12. On August 15, 2012, Plaintiff then voluntarily dismissed his state court lawsuit without prejudice. Id. at Ex. 13.

B. District Court Action

On July 9, 2012, Plaintiff filed a Complaint with this Court based on similar allegations as his state court action. Complaint (Dkt. 1). On August 10, 2012, Defendants filed a Motion to Dismiss; which was granted as unopposed on August 21, 2012. Order Granting Motion to Dismiss (Dkt. 8).

On September 10, 2012, Plaintiff filed his First Amended Complaint, which maintained all of the claims contained in his original Complaint except extortion. First Amended Complaint ("FAC") (Dkt. 16.). On November 30, 2012, this Court granted Defendants' Motion to Dismiss the FAC with prejudice for a negligence claim-and without prejudice as to all other claims. Order Granting Motion to Dismiss ("Order") (Dkt. 35). On December 11, 2012, Plaintiff then filed this Second Amended Complaint. Second Amended Complaint ("SAC") (Dkt. 36). On December 21, 2012, Defendants filed a Motion to Dismiss the SAC. Mot. (Dkt. 37). Plaintiff filed his Opposition on January 12, Opposition ("Opp'n.") (Dkt. 41), followed by Defendants' Reply on January 18, Reply (Dkt. 43).

II. Legal Standard

Under Federal Rule of Civil Procedure 12(b)(6), a complaint must be dismissed when a plaintiff's allegations fail to set forth a set of facts which, if true, would entitle the complainant to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (holding that a claim must be facially plausible in order to survive a motion to dismiss). The pleadings must raise the right to relief beyond the speculative level; a plaintiff must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555(citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). On a motion to dismiss, this court accepts as true a plaintiff's well-pled factual allegations and construes all factual inferences in the light most favorable to the plaintiff. Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). The court is not required to accept as true legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678.

In evaluating a Rule 12(b)(6) motion, review is ordinarily limited to the contents of the complaint and material properly submitted with the complaint. Clegg v. Cult Awareness Network, 18 F.3d 752, 754 (9th Cir. 1994); Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc.,896 F.2d 1542, 1555 n.19 (9th Cir. 1990). Under the incorporation by reference doctrine, the court may also consider documents "whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading." Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994), overruled on other grounds by 307 F.3d 1119, 1121 (9th Cir. 2002).

A motion to dismiss under Rule 12(b)(6) can not be granted based upon an affirmative defense unless that "defense raises no disputed issues of fact." Scott v. Kuhlmann, 746 F.2d 1377, 1378 (9th Cir. 1984). For example, a motion to dismiss may be granted based on an affirmative defense where the allegations in a complaint are contradicted by matters properly subject to judicial notice. Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010). In addition, a motion to dismiss may be granted based upon an affirmative defense where the complaint's allegations, with all inferences drawn in Plaintiff's favor, nonetheless show that the affirmative defense "is apparent on the face of the complaint." See Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010).

Additionally, Federal Rule of Evidence 201 allows the court to take judicial notice of certain items without converting the motion to dismiss into one for summary judgment. Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994). The court may take judicial notice of facts "not subject to reasonable dispute" because they are either: "(1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201; see also Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (noting that the court may take judicial notice of undisputed "matters of public record"), overruled on other grounds by 307 F.3d 1119, 1125-26 (9th Cir. ...


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