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Billi Vogan and Harold Traupel v. Wells Fargo Bank

May 7, 2013

BILLI VOGAN AND HAROLD TRAUPEL,
PLAINTIFFS,
v.
WELLS FARGO BANK, N.A.; US BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR WFMBS 2005-AR12; WELLS FARGO HOME MORTGAGE; AND
FIRST AMERICAN TRUSTEE SERVING SOLUTIONS FORMERLY KNOWN AS
FIRST AMERICAN LOANSTAR TRUSTEE SERVICES, LLC; AND DOES 1-100, INCLUSIVE,
DEFENDANTS.



The opinion of the court was delivered by: The Honorable John A. Mendez United States District Court Judge

2005-AR12

ORDER GRANTING DEFENDANTS WELLS FARGO AND US BANK'S MOTION FOR SUMMARY JUDGMENT

ORDER GRANTING SUMMARY JUDGMENT

I. BACKGROUND

Defendants Wells Fargo Bank, N.A. ("Wells Fargo") and US Bank, N.A., as Trustee for 4 WFMBS 2005-AR12 ("U.S. Bank") move for summary judgment on Plaintiffs Billi Vogan and 5 Harold Traupel's claims against them. 6

Initially there were ten claims, all being against both Wells Fargo and U.S. Bank, except 7 for the fifth (violation of 15 U.S.C. Section 1641(g) of the Truth in Lending Act) and ninth (to 8 void or cancel the trustee's deed upon sale) claims, asserted against U.S. Bank only. 9 The first two claims, one for declaratory relief and one for negligence, were previously 10 dismissed by the Court. See Docket No. 30. A claim for accounting was also previously 11 dismissed. See id. Plaintiffs' remaining claims are for quasi-contract, violation of Business and 12 Professions Code Section 17200, violation of 15 U.S.C. Section 1641(g) of the Truth in Lending 13 Act, constructive trust, wrongful foreclosure and to set aside trustee's sale, void or cancel trustee's 14 deed upon sale, and quiet title. 15

The case is based on a non-judicial foreclosure sale of property located at 20066 Wildwood West Drive in Penn Valley, California. The parties agree that plaintiffs executed an adjustable rate 17 note with Wells Fargo back in June of 2004 in order to purchase the property. They also executed 18 a deed of trust as security for that note in favor of Wells Fargo as the lender and beneficiary of the 19 deed of trust. National Title Insurance Company was listed as the trustee for the deed of trust. 20

Defendants represent that Wells Fargo was the servicer for the life of the loan, and plaintiffs agree 21 that Wells Fargo purported to be the servicer for life of the loan, although plaintiffs dispute Wells 22

Fargo's authority to collect payments on the mortgage. 23

The case survived defendants' motion to dismiss on a narrow theory that U.S. Bank

24 violated TILA Section 1641(g), which requires the assignee of a mortgage loan to give notice to a 25 borrower that a transfer of the loan occurred. The parties originally presented an Assignment of 26

Deed of Trust that was dated January 6, 2011, and recorded on January 11, 2011. 27 Defendants contended that the assignment showed that U.S. Bank owned plaintiffs' loan, 28 and was therefore the proper party to foreclose.

U.S. Bank's legal theory supporting its motion to dismiss was that it was exempt from Section 1641(g) because it was a trustee. At the motion to dismiss stage, the Court rejected the 3 argument that the law exempts trustees of a deed of trust from Section 1641(g). In this case, U.S. 4 Bank was the trustee of a mortgaged backed security, meaning that it was the legal equivalent of 5 the assignee of the loan. Based on the date of the assignment in the January 6, 2011 document, 6 and the allegation that U.S. Bank did not comply with Section 1641(g)'s requirements, the Court 7 denied the motion to dismiss that claim. The Court limited the claim to statutory damages and 8 attorneys' fees because plaintiffs did not plead that the lack of notice caused their default. 9

The Court also found at the motion to dismiss stage that plaintiffs raised at least a plausible 10 inference that the January 2011 assignment was falsified because of the inconsistency of the dates. 11

At the time of the motion to dismiss, defendants were unable to explain why there was an 12 assignment dated January 2011 that was made to U.S. Bank nearly five years after the closing date ...


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