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Moore v. Wells Fargo Bank, N.A.

United States District Court, S.D. California

September 3, 2014

RONALD MOORE, an individual, Plaintiff,
WELLS FARGO BANK, N.A., a business entity; and DOES 1 through 10, inclusive, Defendants.


GONZALO P. CURIEL, District Judge.

On June 9, 2014, Defendant Wells Fargo Bank, N.A. ("Defendant") filed a motion to dismiss Plaintiff Ronald Moore's ("Plaintiff") Complaint pursuant to Federal Rules of Civil Procedure 12(b)(6), (Dkt. No. 4), and a related request for judicial notice, (Dkt. No. 4-2). The motion has been fully briefed. (Dkt. Nos. 6, 7.) Pursuant to L. Civ. R. 7.1(d)(1), the Court finds the matter suitable for adjudication without oral argument. For the following reasons, the Court GRANTS Defendant's Motion to Dismiss Plaintiff's Complaint.


In April 2002, Plaintiff purchased the property located at 1573 Skylark Way, Chula Vista, California, 91911 ("Property"). (Dkt. No. 1-1, Notice of Removal Ex. A, "Compl." ¶ 15.) On December 19, 2006, Plaintiff completed a loan ("Loan") secured by the Property, in the amount of $409, 500.00. (RJN, Ex. A at 1-3.) Plaintiff alleges Defendant acquired the Loan "on around 2010." (Compl. ¶ 17.)

Plaintiff alleges learning that Defendant acquired his Loan in 2011. (Id. ¶ 18.) Plaintiff alleges he was "paying approximately $2165.49 on his monthly mortgage" and "began contacting [Defendant] in an effort to get a loan modification." (Id. ¶¶ 18-19.) Plaintiff alleges Defendant then "informed Plaintiff over the phone that he qualified for a loan modification" after "months of review." (Id. ¶ 20.) Plaintiff further alleges that Defendant informed Plaintiff that he was to start a "Trial Payment Plan, " under which Plaintiff would make three months of payments at $2216.49[2] per month in exchange for a loan modification contract that "would reflect a lower amount." (Id. ¶¶ 20-21.) Plaintiff alleges completing "all three payments on the [Trial Payment Plan]" and that he "continually contacted and waited for Defendant WELLS to provide a written contract with the correct lower amount." (Id. ¶ 24.)

Plaintiff further alleges he repeatedly asked Defendant for a written contract memorializing the terms of the Trial Payment Plan and loan modification while making payments, though Defendant failed to provide one. (Id. ¶¶ 22-25.) Additionally, Plaintiff alleges while he "was attempting to figure out the modification system, [he] was trying to re-start the loan modification process. Plaintiff began sending the same financial paperwork he had sent before to Defendants and continued to do so until late 2013." (Id. ¶ 26.) Plaintiff alleges he "would send all necessary documents to Defendant WELLS countless times, and each time Defendants stated that they couldn't find the documents or to call back later." (Id. ¶ 27.) Plaintiff alleges, as of the filing of his Complaint on March 27, 2014, "Plaintiff has not been denied a loan modification and for all Plaintiff knows, is still considered to be under review." (Id. ¶ 28.)

In addition, Plaintiff alleges receiving "an incessant amount of phone calls daily to his home and his cell phone, from representatives of Defendants, attempting to collect payments. Plaintiff requested every time for Defendants to stop contacting him but was unsuccessful." (Id. ¶ 27.)

On March 27, 2014, Plaintiff filed the present lawsuit before the San Diego County Superior Court. (Id. at 1.) Plaintiff's Complaint alleges five causes of action: (1) breach of contract; (2) promissory estoppel; (3) breach of the implied covenant of good faith and fair dealing; (4) unfair business practices in violation of California Business and Professions Code section 17200 et seq.; and (5) violation of the Rosenthal Fair Debt Collection Practices Act, California Civil Code sections 1788-1788.3. (Id.)

On June 2, 2014, Defendant removed this action to federal court. (Dkt. No. 1, Notice of Removal.) Presently before the Court is Defendant's Motion to Dismiss Plaintiff's Complaint for Failure to State a Claim. (Dkt. No. 4.)


A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of a complaint. Navarro v. Block , 250 F.3d 729, 732 (9th Cir. 2001). Dismissal is warranted under Rule12(b)(6) where the complaint lacks a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc. , 749 F.2d 530, 534 (9th Cir. 1984); see Neitzke v. Williams , 490 U.S. 319, 326 (1989) ("Rule12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law."). Alternatively, a complaint may be dismissed where it presents a cognizable legal theory yet fails to plead essential facts under that theory. Robertson , 749 F.2d at 534. While a plaintiff need not give "detailed factual allegations, " a plaintiff must plead sufficient facts that, if true, "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 545 (2007). "To 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.'" Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Twombly , 550 U.S. at 547). A claim is facially plausible when the factual allegations permit "the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id . In other words, "the non-conclusory factual content, ' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Service , 572 F.3d 962, 969 (9th Cir. 2009). "Determining whether a complaint states a plausible claim for relief will... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal , 556 U.S. at 679.

In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume the truth of all factual allegations and must construe all inferences from them in the light most favorable to the nonmoving party. Thompson v. Davis , 295 F.3d 890, 895 (9th Cir. 2002); Cahill v. Liberty Mut. Ins. Co. , 80 F.3d 336, 337-38 (9th Cir. 1996). Legal conclusions, however, need not be taken as true merely because they are cast in the form of factual allegations. Ileto v. Glock, Inc. , 349 F.3d 1191, 1200 (9th Cir. 2003); W. Mining Council v. Watt , 643 F.2d 618, 624 (9th Cir. 1981). When ruling on a motion to dismiss, the court may consider the facts alleged in the complaint, documents attached to the complaint, documents relied upon but not attached to the complaint when authenticity is not contested, and matters of which the court takes judicial notice. Lee v. Los Angeles , 250 F.3d 668, 688-89 (9th Cir. 2001).


A. Judicial Notice

Defendant seeks judicial notice of ten documents: (1) a deed of trust recorded in the San Diego County Recorder's Office on December 13, 2006; (2) a Certificate of Corporate Existence dated April 21, 2006; (3) a letter on Office of Thrift Supervision letterhead authorizing a name change from World Savings Bank, FSB to Wachovia Mortgage, FSB ("Wachovia"); (4) the charter of Wachovia Mortgage, FSB; (5) an official certification by the Comptroller of the Currency, Administrator of National Banks; (6) a printout from the website of the Federal Deposit Insurance Corporation showing the history of World Savings Bank, FSB; (7) a Notice of Default and Election to Sell Under Deed of Trust dated December 5, 2012 and recorded on December 6, 2012; (8) a Notice of Trustee's Sale dated December 6, 2012; (9) a Home Affordable Modification Agreement dated and signed by Plaintiff on July 31, 2013; and (10) a Notice of Rescission of Notice of Default dated September 3, 2013. (Dkt. No. 4-2.)

Under Federal Rule of Evidence 201(b), a district court may take notice of facts not subject to reasonable dispute that are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Fed.R.Evid. 201(b); see also Lee v. City of Los Angeles , 250 F.3d 668, 689 (9th Cir. 2001) (noting that the court may take judicial notice of undisputed matters of public record), overruled on other grounds by Galbraith v. County of Santa Clara , 307 F.3d 1119, 1125-26 (9th Cir. 2002). Courts have routinely taken judicial notice of records filed with the county recorder. See e.g., Reyna Pasta Bella, LLC v. Visa USA, Inc. , 442 F.3d 741, 746 n. 6 (9th Cir. 2006); Liebelt v. Quality Loan Serv. Corp. , 2011 WL 741056, at *6 n. 2 (N.D. Cal. 2011); Reynolds v. Applegate , 2011 WL 560757, at *1 n. 2 (N.D. Cal. 2011); Giordano v. Wachovia Mortg., FSB , 2010 WL 5148428, at * 1 n. 2 (N.D. Cal. 2011). Here, Plaintiff does not object to Defendants' Request for Judicial Notice, and the documents are publically recorded documents or official documents whose accuracy cannot reasonably be questioned. Thus, the Court finds that the accuracy of these documents cannot reasonably be questioned. Accordingly, the Court hereby takes judicial notice of Exhibits 1-10.

B. Motion to Dismiss

Defendant moves to dismiss all five causes of action in Plaintiff's Complaint for failure to state a plausible claim for relief pursuant to Federal Rules of Civil Procedure 12(b)(6). (Dkt. No. ...

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