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Zoaby v. JPMorgan Chase Bank

United States District Court, N.D. California

August 1, 2014

HISHAM ZOABY, Plaintiff,



This is a lawsuit for wrongful foreclosure, among other claims, filed by pro se Plaintiff Hisham Zoaby. Before the Court is the Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) filed by Defendant JP Morgan Chase Bank, N.A. ("Chase"). (Def.'s Mot., ECF 10) Plaintiff filed opposition but did not substantively respond to any of Defendant's arguments.[1] (Pl.'s Opp., ECF 16) The Court heard oral argument on the motion on July 31, 2014, after which it deemed the matter submitted. After careful consideration of the parties' respective written submissions and oral arguments, for the reasons stated herein, the Court finds that the action must be dismissed for lack of subject matter jurisdiction.


In September 2004, Plaintiff purchased a property located at 251 Sunol Street San Jose, CA 95126 ("Property") with a mortgage from New Century Mortgage Corp., which loan was eventually transferred to Washington Mutual Bank F.A. ("WaMu").[2] (Compl. ¶¶ 1.3, 2.1, ECF 1-1) Plaintiff obtained a second mortgage from National City Bank in January 2006, though the ultimate holder and fate of this latter loan is not alleged. ( Id. )

Plaintiff alleges that he made timely payments and had "an excellent record" until mid-2006-07, when he was caught up in the "housing crises" and began having financial problems. Though he communicated with his lenders and attempted to bring his mortgage current, Plaintiff alleges that "[a] zealous debt collector actually refused the money stating they wanted the full balance."[3] ( Id. ) Without identifying any specific time period, Plaintiff further alleges that he "at this time was told that he was being foreclosed." ( Id. ) Despite living in the Property at the time, Plaintiff alleges that he "only received the Trustee Auction Sale Notice on May, 2008." ( Id. ) The Property "went to auction" on June 6, 2008 and was sold to WaMu.[4] ( Id .; see also Def.'s RJN Exhs. A-E, ECF 11)

WaMu was later seized by the Office of Thrift Supervision and placed into the receivership of the Federal Deposit Insurance Corporation ("FDIC"). On September 25, 2008, the FDIC transferred certain WaMu assets-including the Property-to Defendant Chase under a Purchase and Assumption Agreement ("P&A").[5] (Def.'s Mot. 8; see also Def.'s RJN Exh. F, Art. II, § 2.5) The P&A provided that the FDIC, not Chase, would retain liabilities associated with the assets acquired from WaMu:

Borrower Claims. Notwithstanding anything to the contrary in this Agreement, any liability associated with borrower claims for payment of or liability to any borrower for monetary relief, or that provide for any other form of relief to any borrower, whether or not such liability is reduced to judgment, liquidated or unliquidated, fixed or contingent, matured or unmatured, disputed or undisputed, legal or equitable, judicial or extra-judicial, secured or unsecured, whether asserted affirmatively or defensively, related in any way to any loan or commitment to lend made by [WaMu] prior to failure, or to any loan made by a third party in connection with a loan which is or was held by [WaMu], or otherwise arising with [WaMu's] lending or loan purchase activities are specifically not assumed by [Chase].

(Def.'s RJN Ex. F, Art. II, § 2.5 (emphasis added)) Chase sold the Property to a third party on March 19, 2009. (Compl. ¶ 2.1)

On March 7, 2014, Plaintiff commenced the present action against Chase in the Superior Court for the County of Santa Clara, which Chase promptly removed to federal court on the basis of federal question and diversity jurisdiction. ( See Compl., ECF 1-1) Chase now moves to dismiss Plaintiff's claims pursuant to Rule 12(b)(6), arguing that Plaintiff's claims are barred by the applicable statutes of limitations, that he has failed to assert any legally cognizable claims, and that Plaintiff cannot hold Defendant liable for the alleged misconduct of WaMu, whose liability Defendant expressly disclaimed. ( See Def.'s Mot.) Because Defendant raised arguments suggesting a lack of subject matter jurisdiction over Plaintiff's claims, the Court considers first whether it has jurisdiction over the asserted claims.


"A document filed pro se is to be liberally construed, ' and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'" Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

"Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (internal citations omitted). This Court has an independent obligation to insure that it has subject matter jurisdiction over a matter and may raise the question, sua sponte, at any time during the pendency of the action. See Fed.R.Civ.P. 12(h)(3); Snell v. Cleveland, Inc., 316 F.3d 822, 826 (9th Cir. 2002). Typically, a defect in subject matter jurisdiction is brought to the court's attention by way of a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), which may be either a facial or a factual challenge to the court's jurisdiction to hear the case. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). A facial challenge asserts that even if assumed true, "the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction." Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). Because the jurisdictional problem appears on the face of the Complaint in this case, the Court assumes that Plaintiff's allegations are true.

If a motion to dismiss is granted, a court should normally grant leave to amend, even if no request to amend the pleading was made, unless amendment would be futile. Lopez v. Smith, 203 F.3d 1122, 1130 (9th ...

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