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Greene v. Wells Fargo Home Mortgage

United States District Court, Ninth Circuit

August 23, 2013

ROSEMARY GREENE, an individual, Plaintiff,
v.
WELLS FARGO HOME MORTGAGE, a division of WELLS FARGO BANK, N.A., ETS SERVICES, LLC, a corporation, and DOES 1-10, inclusive, Defendants.

ORDER GRANTING MOTION TO DISMISS

WILLIAM ALSUP, District Judge.

INTRODUCTION

In this mortgage dispute, defendants move to dismiss pursuant to Rule 12(b)(6). For the reasons stated below, the motion is GRANTED.

STATEMENT

Plaintiff Rosemary Greene, represented by counsel, originally filed suit in the Superior Court for the County of Alameda in May 2013. Greene asserted five causes of action against Wells Fargo Bank, N.A. based on her allegation that the loan modification she had been offered was no more than a "Band-Aid on a severed artery" (Compl. ¶ 13). Wells Fargo removed the case to federal court and subsequently filed the present motion to dismiss.

The following facts are taken from the complaint and from judicially noticeable documents. In April 2007, Greene obtained a $661, 600 home loan from World Savings Bank, FSB and executed a deed of trust for a residential property in Oakland. In January 2008, World Savings changed its name to Wachovia Mortgage, FSB. In November 2009, Wachovia merged into Wells Fargo.

According to the complaint, Greene suffered severe economic hardship in 2009. She immediately contacted Wachovia for a loan modification but still faced difficulties with her payments. In 2010, a loan modification process was initiated with Wells Fargo. Greene alleges that Wells Fargo "employed a scheme to unnecessarily delay the process for loss mitigation, " resulting ultimately in a denial of assistance (Compl. ¶¶ 12-17).

Greene later filed two separate bankruptcy actions. Her first bankruptcy petition was filed under Chapter 13 in November 2011 and was dismissed three months later. Her second bankruptcy was filed in November 2012. That bankruptcy resulted in a discharge on February 12, 2013. Greene did not list this claim in her schedules filed with the bankruptcy court. This order follows full briefing and oral argument.

ANALYSIS

1. REQUEST FOR JUDICIAL NOTICE.

Wells Fargo has made two requests for judicial notice. It requested that judicial notice be taken, inter alia, of the following documents: (1) docket in United States Bankruptcy Court, Northern District of California, Chapter 13 No. 10-73054 (RJN, Exh. I); and (2) docket and Chapter 7 Voluntary Petition filed and entered on November 11, 2012, in United States Bankruptcy Court, Northern District of California, No. 12-49009 (RJN, Exh. J). Greene does not object. Wells Fargo's requests for judicial notice are GRANTED. Judicial notice of the existence and content of these documents is proper under Federal Rule of Evidence 201(b) because the authenticity of the documents is capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Because this order does not rely on any of the other documents, all other requests for judicial notice are DENIED AS MOOT.

2. STANDING.

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). A motion to dismiss under Rule 12(b)(6) may be granted where the plaintiff lacks standing to bring the lawsuit. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).

Upon filing a petition for bankruptcy protection, all of the debtor's property becomes vested in the bankruptcy estate. 11 U.S.C. 541(a)(1). "Property that is neither abandoned nor administered remains property of the estate even after the case is closed." In re Lopez, 283 B.R. 22, 28 (B.A.P. 9th Cir. 2002). Accordingly, a bankruptcy petitioner ...


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