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Maxine Shook Eghtesadi v. Wells Fargo Bank

April 11, 2013


The opinion of the court was delivered by: Hon. Gonzalo P. Curiel United States District Judge


Plaintiff, through counsel, commenced this action in the San Diego Superior Court, asserting various claims related to the origination and modification of a refinance loan secured by a deed of trust on Plaintiff's home. (ECF No. 1-1.) Defendants thereafter removed the action to federal court, asserting diversity jurisdiction. (ECF No. 1.) Currently before the Court is defendant Wells Fargo Bank, N.A.'s motion to dismiss Plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).*fn1 (ECF No. 4.) Wells Fargo's motion to dismiss has been fully briefed.*fn2 (ECF Nos. 7, 8.) The Court finds Wells Fargo's motion to dismiss suitable for disposition without oral argument. See CivLR 7.1.d.1. For the reasons that follow, the Court hereby GRANTS Wells Fargo's motion to dismiss in its entirety. Plaintiff's first, fourth, and fifth causes of action are dismissed without leave to amend, and Plaintiff's second, third, sixth, seventh, and eighth causes of action are dismissed with leave to amend.


Plaintiff alleges that, in 2003, she purchased certain real property that is commonly known as: 1301 Verbena Court, Carlsbad, CA 92011 ("Property" or "Subject Property"). Plaintiff alleges she was having financial difficulties in May 2009 and that, around the same time, she received solicitations from Wells Fargo regarding various mortgage assistance options. Plaintiff alleges she thereafter visited a Wells Fargo branch to discuss those options.

Plaintiff claims that, after discussing her financial situation with a Wells Fargo representative named Jon Tucker ("Tucker"), she "highlighted the fact that her current loan was set to increase in principal in [sic] interest payments in the next few years and that she would not be able to afford it." Plaintiff alleges she therefore "inquired into the availability of a modified loan as advertised in the solicitations she had received."

Plaintiff alleges that "Tucker represented to Plaintiff that a re-finance of her then existing loan would be the best option available to her." Plaintiff alleges, however, that "after a brief consultation, it appeared to [her] that a re-finance was not an option to her as Tucker represented that she may want to consider a loan modification instead and that he knew someone that could assist her." Plaintiff claims that, before she left the meeting, Tucker left the office for a short period and, upon returning, "represented to Plaintiff that 'she qualified for a re-finance and that the process was close to completion.'" Plaintiff alleges that, in response to her request for clarification, she "was informed to 'not question the man behind the curtain.'" Plaintiff claims she was therefore "unsure if she was being offered a re-finance or a modification and was left in the dark as to what had resulted in her suddenly being approved."

Plaintiff alleges "she later learned that she had been placed in a 4.95% 30 year fixed interest loan," but that Wells Fargo never explained the terms of that loan to her and that, indeed, she did not "even know she was being put in a re-finance transaction until the date the loan was set to close." Plaintiff alleges that, in an effort to close the re-finance transaction and obtain the commission and fees associated with closing the loan, Tucker falsified Plaintiff's income. Plaintiff asserts the "re-finance on the Subject Property was completed in June 2009, secured by a Deed of Trust in the amount of $354,500."

Plaintiff asserts she "was intentionally placed into a non-affordable loan designed for her to fail," as "it was the intent of Wells Fargo to steal the subject property through an inevitable foreclosure." Plaintiff alleges she had no time to review the loan documents, as they were not given to her until the day the loan was set to close. Plaintiff thus claims that she "did not realize the deception with the loan application until it was too late." Plaintiff asserts she was forced into the re-finance transaction, that she received no benefit from the re-finance transaction, and that her monthly principal and interest payment actually increased from $2,695 to $2,753 per month.

Plaintiff alleges her financial situation worsened up through 2011 and that, in October 2011, Plaintiff had to choose between fixing her car and paying her mortgage. Plaintiff alleges "[s]he was left with no choice but to choose to fix her car so she could continue to work." Plaintiff asserts that, as a result of her financial hardship, she contacted Wells Fargo's mortgage modification department.

Plaintiff claims that, in June 2011, she spoke with a Wells Fargo representative named Alex who "directed Plaintiff to the 'Loss Mitigation Department' for further information regarding a modification of her loan." Plaintiff alleges that, "[u]pon reaching the Loss Mitigation department, Plaintiff was informed that she was 'pre-qualified' for a Fannie Mae Modification, and was asked to submit the following: (1) Financial Worksheet; (2) Hardship Letter; (3) 2 Paystubs as proof of income; (4) Bank statements showing deposit of spousal support as income." Plaintiff alleges she thereafter faxed the requested documentation to the number provided by the Loss Mitigation Department. Plaintiff claims she was "notified that as long as the documentation was being gathered and reviewed, the Subject Property would not proceed to foreclosure."

Plaintiff alleges that, on June 20, 2011, she received a letter from Wells Fargo "requesting that 'required items be sent to Wells Fargo Home Mortgage'" -- despite the fact that Plaintiff had done so three days prior.

Plaintiff claims that, also on June 20, 2011, she "received a letter from a Lakeysha Mayo ('Mayo'), a representative of [Wells Fargo], who introduced herself as part of a 'special team' assigned to Plaintiff for mortgage payment assistance." Plaintiff claims Mayo requested the same documentation Plaintiff had already faxed to Wells Fargo to determine Plaintiff's eligibility for payment assistance. Plaintiff alleges Mayo promised Plaintiff's loan would not be referred to foreclosure while Plaintiff's eligibility for payment assistance was being assessed. Plaintiff alleges that, "[f]rom this point forward, [Wells Fargo], through its representative Mayo, repeatedly asked for the same documentation over and over again in an effort to deceive Plaintiff into believing she would be offered a modification on her loan."

Plaintiff alleges the following sequence of events occurred:

* June 20, 2011 -- Plaintiff faxes all documents and income verification requested by Mayo and Wells Fargo.

* August 9, 2011 -- Plaintiff resubmits the same application with updated financials.

* August 26, 2011 -- Plaintiff resubmits the same application with updated financials.

* November 13, 2011 -- Plaintiff receives a letter from Wells Fargo stating "more documents needed to determine eligibility."

* November 13, 2011 -- Plaintiff receives a letter from Mayo asking for a "Request for Modification and Affidavit" ("RMA").

* November 20, 2011 -- Mayo tells Plaintiff on the phone that Plaintiff's documents "went stale," assuring Plaintiff there would be no foreclosure while the review proceeded. Mayo requests updated documents and represents there would be a decision within 60 days.

* November 30, 2011 -- Plaintiff leaves a message with Mayo to check the status of submitted materials.

* December 5, 2011 -- Mayo informs Plaintiff she must submit another RMA, a current hardship letter, and a current financial worksheet. Mayo informs Plaintiff it will take approximately two weeks to get a response.

* December 27, 2011 -- Plaintiff calls Mayo to follow up on the status of her modification request and is told that "her loan modification has reached review by the Underwriters" and that Plaintiff would have to submit her most recent pay stubs and bank statements. Plaintiff immediately supplies the requested documentation via fax.

* February 3, 2012 -- Plaintiff calls Mayo to follow up on the status of her modification request.

* February 6, 2012 -- Plaintiff calls Mayo to follow up on the status of her modification request.

* February 27, 2012 -- Plaintiff receives a letter from Wells Fargo stating, "investor has declined the request to modify your mortgage."

Plaintiff asserts she was "repeatedly assured that a decision was forthcoming," and that, "[i]n reliance on [Wells Fargo's] representations that the review was being conducted in good faith," she "forewent other alternatives to foreclosure such as listing the property for sale, entertaining short-sale offers procured by her broker, as well as seeking bankruptcy relief."

Plaintiff alleges that, even after being notified that her modification request had been denied, Wells Fargo sent Plaintiff three letters stating Plaintiff qualified for a review of the same modification that had already been denied. Plaintiff thus alleges that Wells Fargo never intended to review, nor did they review, Plaintiff's modification request. Plaintiff claims that, as early as August 2011, Wells Fargo had numerous opportunities to inform Plaintiff her modification request would be denied per a decision by the "investor." Plaintiff asserts that, instead, Wells Fargo "continued to make misrepresentations that the modification review was pending and close to completion, giving Plaintiff false hope" of avoiding foreclosure. Plaintiff alleges that, had she known sooner that her request would be denied, "she could have pursued other options to avoid foreclosure such as a re-finance, sale of the property, or other available remedies."

Plaintiff asserts that, on March 1, 2012, Wells Fargo recorded a "Notice of Default and Election to Sell under Deed of Trust" ("NOD"). Plaintiff claims the NOD did not include a "Declaration of Compliance." Plaintiff also claims she was never contacted by anyone from Wells Fargo to discuss options to avoid foreclosure. Plaintiff asserts that, on June 22, 2012, she received an ...

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