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Neffa-Borria v. Wells Fargo Bank N.A.

United States District Court, S.D. California

June 11, 2014

GEORGE D. BORRIA and GRACE A. NEFFA-BORRIA, as trustees of the George and Grace Borria 2006 Trust, Plaintiffs,
v.
WELLS FARGO BANK N.A.; HSBC BANK USA, a federally chartered banking institution, as trustee on behalf of The Wells Fargo Asset Securities Corporation, mortgage pass— through certificates, series 2007-11; FIDELITY NATIONAL TITLE INSURANCE; DEFAULT RESOLUTION NETWORK; ALL PERSONS UNKNOWN claiming any legal or equitable right, title, estate, lien or interest in the property described in the complaint adverse to plaintiffs' title, or any cloud on plaintiffs' title thereto; and DOES 1-60, Defendants.

ORDER: (1) GRANTING DEFENDANTS WELLS FARGO AND HSBC'S REQUEST FOR JUDICIAL NOTICE; AND (2) GRANTING DEFENDANTS WELLS FARGO, HSBC, AND FIDELITY'S MOTIONS TO DISMISS THE COMPLAINT (ECF NOS. 26, 27, 28)

JANIS L. SAMMARTINO, District Judge.

Presently before the Court is Defendants Wells Fargo Bank N.A. ("Wells Fargo") and HSBC Bank USA's ("HSBC, " and, collectively, "the Banks") Motion to Dismiss ("MTD") (ECF No. 26), as well as Fidelity National Title Insurance's ("Fidelity") MTD (ECF No. 28). Also before the Court are Plaintiffs George D. Borria and Grace A. Neffa-Borria, as trustees of the George and Grace Borria 2006 Trust's ("Plaintiffs"), Oppositions to (ECF Nos. 29, 30) and the Banks' (ECF No. 31) and Fidelity's (ECF No. 32) Replies in Support of the MTDs, as well as the Banks' Request for Judicial Notice ("RJN") (ECF No. 27). The Court vacated the hearings on the MTDs set for April 10, 2014, and took the matters under submission without oral argument pursuant to Civil Local Rule 7.1(d)(1). (ECF No. 33.) Having considered the parties' arguments and the law, the Court GRANTS the Banks' RJN and GRANTS both the Banks' and Fidelity's (collectively, "Defendants") MTDs.

BACKGROUND

On June 12, 2007, Plaintiffs executed a Deed of Trust ("DOT") encumbering the real property located at 6169 Primrose Drive, La Mesa, California, 91942 ("the Property"). (Corrected 1st Am. Verified Compl. ("FAC") ¶ 8, ECF No. 24; RJN Ex. 1, ECF No. 27.) The DOT secures a $960, 000.00 promissory note ("the Note"), and names Plaintiffs as the borrowers, Wells Fargo as the lender, and Fidelity as the trustee. (FAC ¶ 8, ECF No. 24; RJN Ex. 1, ECF No. 27.) On October 10, 2007, Plaintiffs executed a Trust Transfer Deed granting their interest in the Property to the George and Grace Borria 2006 Trust ("the Trust"), of which Plaintiffs are the trustees. (RJN Ex. 2, ECF No. 27.)

On August 18, 2011, Fidelity recorded a Notice of Default ("NOD") against the Property, claiming that Plaintiffs were $36, 856.77 in arrears. (FAC ¶ 9, ECF No. 24; RJN Ex. 3, ECF No. 27.) On February 6, 2012, Wells Fargo recorded a Corporate Assignment of DOT to HSBC. (FAC ¶ 10, ECF No. 24; RJN Ex. 4, ECF No. 27.)

On March 1, 2012, Fidelity recorded a Notice of Trustee's Sale ("NOTS"). (FAC ¶ 14, ECF No. 24; RJN Ex. 5, ECF No. 27.) On July 30, 2013, Plaintiffs filed their Complaint. (ECF No. 1.) Defendants subsequently filed MTDs. (ECF Nos. 7, 16.) Defendants recorded a second NOTS on August 7, 2013. (RJN Ex. 6, ECF No. 27.)

On February 4, 2014, the Court granted Defendants' MTDs and granted Plaintiffs fourteen (14) days in which to file an amended complaint. ( See Order 13, ECF No. 22.) On February 19, 2014, Plaintiffs filed their FAC. ( See ECF No. 24.) The house was apparently sold on February 20, 2014. (MTD 10, ECF No. 26.) Defendants subsequently filed the present MTDs.

REQUEST FOR JUDICIAL NOTICE

Federal Rule of Evidence 201 provides that "[t]he court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." "Judicially noticed facts often consist of matters of public record." Botelho v. U.S. Bank, N.A., 692 F.Supp.2d 1174, 1178 (N.D. Cal. 2010) (citations omitted); see also W. Fed. Sav. & Loan Ass'n v. Heflin Corp., 797 F.Supp. 790, 792 (N.D. Cal. 1992). While "a court may take judicial notice of the existence of matters of public record, such as a prior order or decision, " it should not take notice of "the truth of the facts cited therein." Marsh v. Cnty. of San Diego, 432 F.Supp.2d 1035, 1043 (S.D. Cal. 2006).

The Banks ask the Court to judicially notice the following nine (9) documents, all recorded in the San Diego County Recorder's Office: (1) Deed of Trust, Doc. No. 2007-0396404, recorded on June 12, 2007 (ECF No. 27, Ex. 1); (2) Trust Transfer Deed, Doc. No. 2007-0703583, recorded on November 5, 2007 (ECF No. 27, Ex. 2); (3) Notice of Default and Election to Sell Under Deed of Trust, Doc. No. 2011-0424537, recorded on August 18, 2011 (ECF No. 27, Ex. 3); (4) Corporate Assignment of Deed of Trust, Doc. No. 2012-0067234, recorded February 6, 2012 (ECF No. 27, Ex. 4); (5) Notice of Trustee's Sale, Doc. No. 2012-0118490, recorded on March 2, 2012 (ECF No. 27, Ex. 5); (6) Notice of Trustee's Sale, Doc. No. 2013-0494997, recorded on August 7, 2013 (ECF No. 27, Ex. 6); (7) Quitclaim Deed, Doc. No. 2005-0896659, recorded on October 17, 2005 (ECF No. 27, Ex. 7); Correction Deed, Doc. No. 2006-0026861, recorded on January 12, 2006 (ECF No. 27, Ex. 8); and (9) Grant Deed, Doc. No. 2007-0396403, recorded on June 12, 2007 (ECF No. 27, Ex. 9).

All of these documents are available to the public and are certified and maintained by an official office. Their accuracy cannot therefore be reasonably disputed. Accordingly, the Court GRANTS the Banks' RJN as to all nine (9) documents.

MOTIONS TO DISMISS

I. Legal Standard

Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the defense that the complaint "fail[s] to state a claim upon which relief can be granted, " generally referred to as a motion to dismiss. The Court evaluates whether a complaint states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil Procedure 8(a), which requires a "short and plain statement of the claim showing that the pleader is entitled to relief." Although Rule 8 "does not require detailed factual allegations, '... it [does] demand[] more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, "a plaintiff's obligation to provide the grounds' of his entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." ...


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