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Gross v. Wells Fargo Bank

United States District Court, Ninth Circuit

January 21, 2014



THOMAS J. WHELAN, District Judge.

On May 29, 2013, Plaintiff Bernard Gross commenced this action against Defendant Wells Fargo Bank ("Wells Fargo"). Wells Fargo now moves to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6). Mr. Gross opposes.

The Court decides the matter on the papers submitted and without oral argument. See Civ. L.R. 7.1(d.1). For the reasons discussed below, the Court GRANTS IN PART and DENIES IN PART Wells Fargo's motion.


Mr. Gross has a mortgage that is being serviced by Wells Fargo. (Compl. ¶ 12.) When Wells Fargo acquired the servicing rights, Mr. Gross was in default. (Id. ¶ 13.) Mr. Gross, who is 84 years old, suffered a heart attack on January 13, 2013 and was admitted to the hospital. (Id. ¶ 14.) Because of his hospitalization, Mr. Gross was not able to work for a number of months, which led to him not making his April and May 2013 mortgage payments. (Id. ¶ 15.)

Wells Fargo began repeatedly calling Mr. Gross in April and May. (Compl. ¶ 16.) Mr. Gross repeatedly explained to a Wells Fargo representative that he had been hospitalized, could not work, and therefore could not make any payments on the loan. (Id. ¶ 17.) An hour after the previous representative called, another Wells Fargo representative called and Mr. Gross explained his situation again. (Id.) This occurred at least 20 times, and every time, Mr. Gross asked Wells Fargo to stop calling him. (Id.) The calls have not stopped. (Id.)

On May 29, 2013, Mr. Gross filed this complaint asserting claims for: (1) violations of the Fair Debt Collection Practices Act ("FDCPA"); (2) violations of the Rosenthal Fair Debt Collection Practices Act ("Rosenthal Act"); (3) violations of the Telephone Consumer Protection Act ("TCPA"); (4) elder abuse; and (5) intrusion. Wells Fargo now moves to dismiss Mr. Gross's claims. Mr. Gross opposes.


The court must dismiss a cause of action for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the complaint. Navarro v. Block , 250 F.3d 729, 732 (9th Cir. 2001). The court must accept all allegations of material fact as true and construe them in light most favorable to the nonmoving party. Cedars-Sanai Med. Ctr. v. Nat'l League of Postmasters of U.S. , 497 F.3d 972, 975 (9th Cir. 2007). Material allegations, even if doubtful in fact, are assumed to be true. Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007). However, the court need not "necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Warren v. Fox Family Worldwide, Inc. , 328 F.3d 1136, 1139 (9th Cir. 2003) (internal quotation marks omitted). In fact, the court does not need to accept any legal conclusions as true. Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009).

"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds' of his entitlement to relief' requires 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 (internal citations omitted). Instead, the allegations in the complaint "must be enough to raise a right to relief above the speculative level." Id . Thus, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Iqbal , 556 U.S. at 678 (citing Twombly , 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id . "The plausibility standard is not akin to a probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id . A complaint may be dismissed as a matter of law either for lack of a cognizable legal theory or for insufficient facts under a cognizable theory. Robertson v. Dean Witter Reynolds, Inc. , 749 F.2d 530, 534 (9th Cir. 1984).

Generally, courts may not consider material outside the complaint when ruling on a motion to dismiss. Hal Roach Studios, Inc. v. Richard Feiner & Co. , 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). However, documents specifically identified in the complaint whose authenticity is not questioned by parties may also be considered. Fecht v. Price Co. , 70 F.3d 1078, 1080 n.1 (9th Cir. 1995) (superceded by statutes on other grounds). Moreover, the court may consider the full text of those documents, even when the complaint quotes only selected portions. Id . It may also consider material properly subject to judicial notice without converting the motion into one for summary judgment. Barron v. Reich , 13 F.3d 1370, 1377 (9th Cir. 1994).


A. Wells Fargo's Requests for Judicial Notice

Wells Fargo seeks judicial notice of eight documents, including recorded deeds of trust and a written not by which the loan was secured, the loan modification agreement, and relevant government documents. (Doc. 4-1.) Mr. Gross does not oppose. The Court may take notice of facts that are "not subject to reasonable dispute in that [they are]... capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned." Fed.R.Evid. 201(b)(2).

Because some of Wells Fargo's documents are matters of public record, and their accuracy is not subject to reasonable dispute, the Court GRANTS Wells Fargo's request and takes judicial notice of each of them. See Reyn's Pasta Bella, ...

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