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Berhe v. Bank of America

United States District Court, N.D. California, San Jose Division

February 21, 2014

ISAAC BERHE, et. al., Plaintiff(s),
v.
BANK OF AMERICA, et al., Defendant(s).

ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS [Docket Item No(s). 61, 63, 65]

EDWARD J. DAVILA, District Judge.

In this action involving the intersection of civil rights, real property and consumer lending, Plaintiffs Aschilew Jember, Isaac Berhe and Anita Zumel (collectively, "Plaintiffs") bring a number of claims against Defendants Bank of America, N.A., Recontrust Company, N.A., Timothy Glen Yu, Helen Wang Yu, JPMorgan Chase Bank and Jamie Dimon (collectively, "Defendants"). See Docket Item Nos. 57, 58.[1] The court previously dismissed the multiple complaints filed by Plaintiffs since, at that time, Plaintiffs had not sufficiently demonstrated a basis for federal jurisdiction. See Order, Docket Item No. 53.

Plaintiffs have now attempted to assert claims created by federal statutes, namely 42 U.S.C. §§ 1981, 1983 and 1985, as well as 18 U.S.C. § 241. As such, jurisdiction arises pursuant to 28 U.S.C. § 1331 because a federal question appears on the face of the pleading(s).[2] See Thornhill Publ'g Co. v. General Tel. Elec. , 594 F.2d 730, 733 (9th Cir. 1979).

In three motions presently before the court, Defendants again argue that this action should be dismissed. See Docket Item Nos. 61, 63, 65. Since the issue of jurisdiction is now settled, the court will proceed to the arguments under Federal Rule of Civil Procedure 12(b)(6). Doing so reveals that Defendants' arguments in favor of dismissal are meritorious. Accordingly, the motions will be granted for the reasons explained below.

I. BACKGROUND

The pleadings are not models of clarity. The court recognizes that Plaintiffs are proceeding without legal representation, though, and has afforded them appropriate latitude.[3] See Abassi v. INS , 305 F.3d 1028, 1032 (9th Cir. 2002). But only those facts most relevant to resolving the instant motions are recounted below.

A. The Bank of America Complaint

This pleading involves Jember and Berhe as plaintiffs and Bank of America, Recontrust, and the Yu's as defendants.

According to judicially-noticeable documents, Berhe obtained a residential loan in the amount of $263, 000.00 from Quicken Loans, Inc., which was secured by a Deed of Trust recorded on February 12, 2008, encumbering real property on Quince Avenue in Santa Clara, California. See Req. for Judicial Notice, Docket Item No. 62, at Ex. A.[4] The Deed of Trust was assigned from Quicken Loans to Bank of America according to a document recorded on May 23, 2012, and Recontrust was substituted as trustee on September 5, 2012. Id . at Exs. B, C. Recontrust then recorded a Notice of Default on the same day of its substitution. Id . at Ex. D. A trustee's sale occurred on January 9, 2013, and the property was purchased by the Yu's. Id . at Ex. E.

Jember's involvement in this particular factual scenario is not entirely clear since his name does not appear on the Deed of Trust despite the allegation that he and Berhe "refinanced" in 2007. See Bank of America Compl., at ¶ 11. In any event, it is alleged that he made certain payments on the debt. Id . at ¶¶ 14, 18.

B. The JPMorgan Complaint

This pleading involves Jember and Zumel as plaintiffs and JPMorgan and Dimon as defendants. Although there are no allegations to establish this fact, it is widely known that Dimon is JPMorgan's Chief Executive Officer.

As far as a relationship between these parties, documents subject to judicial notice reveal that one exists at least with regard to Zumel. It appears Zumel obtained a residential loan in the amount of $100, 000.00 from Great Western Bank, which was secured by a Deed of Trust recorded on January 21, 1993, encumbering real property on Bowers Avenue in Santa Clara, California. See Req. for Judicial Notice, Docket Item No. 64, at Ex 2. A Notice of Default and a Notice of Trustee's Sale were thereafter recorded by California Reconveyance Company on November 21, 2003, and February 25, 2004, respectively. Id . at Exs. 3, 4. The default was eventually rescinded, though, by a notice recorded on April 7, 2004. Id . at Ex. 5.

Washington Mutual Bank became the successor in interest to Great Western Bank at some point, and, on September 25, 2008, JPMorgan acquired all of Washington Mutual's servicing rights and obligations, which apparently included the right to service Zumel's loan. Id . at Ex. 6. JPMorgan then assigned Zumel's Deed of Trust ostensibly to itself on March 15, 2013. Id . at Ex. 7. Another assignment between ...


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