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Silva v. Wells Fargo Bank, N.A.

United States District Court, C.D. California

March 11, 2015

Paul Silva
Wells Fargo Bank, N.A., et al.




Before the Court are two Motions to Dismiss. The first was filed by Defendants Wells Fargo Bank, N.A. ("Wells Fargo"); Federal National Mortgage Association ("Fannie Mae"); Mortgage Electronic Registration Systems, Inc. ("MERS"); MERSCORP Holdings, Inc., and JPMorgan Chase Bank, N.A. ("Chase") on January 6, 2015. (Docket No. 7). The second was filed by only Wells Fargo (the "Wells Fargo Motion"), on January 28, 2015. (Docket No. 23). Plaintiff Paul Silva submitted a Response to Defendant's Notice and Motion to Dismiss Plaintiff's Petition Opposition (the "Response") although it is unclear to which Motion it is directed.

The Court found the matters appropriate for submission on the papers without oral argument and therefore the hearing currently scheduled for March 14, 2015 is VACATED and removed from the Court's Calendar. See Fed. R. Civ. P 78(b) and Local Rule 7-15. Having considered the papers, and accepting Plaintiff's allegations as true, as the Court must at this stage, the two Motions are GRANTED with leave to amend.

Requests for Judicial Notice

As a general rule, a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion to dismiss for failure to state a claim. Skilstaf, Inc. v. CVS Caremark Corp., 669 F.3d 1005, 1016, n. 9 (9th Cir. 2012). The Court may, however, take judicial notice of matters of public record outside the pleadings that are not subject to reasonable dispute. Id. ; Fed.R.Evid. 201(b). Defendants filed a Request for Judicial Notice ("RJN") with their Motion, and Wells Fargo filed a similar Request with its Motion, asking the Court to take judicial notice of certain records related to Plaintiff's mortgage and property ownership. (Docket Nos. 8, 24). These Requests are unopposed. The Requests are GRANTED, and the Court takes judicial notice of the documents submitted by Defendants because they are not subject to reasonable dispute and are proper subjects of judicial notice. See, e.g., W. Fed. Sav. & Loan Ass'n v. Heflin Corp., 797 F.Supp. 790, 792 (N.D. Cal. 1992) (taking judicial notice of documents in a county public record, including deeds of trust).


On July 25, 2008 Plaintiff borrowed $280, 000 from American Mortgage Network, Inc. This loan was secured by a Deed of Trust with MERS named as the beneficiary under the Deed of Trust. Plaintiff ceased paying the amounts due on his loan and defaulted. (Complaint ¶ 26). On November 9, 2011 MERS assigned its beneficial interest to Chase. (RJN Ex. B). On January 12, 2012, NDEx West, L.L.C. ("NDEx") filed a Notice of Default as an agent for the beneficiary. (RJN Ex. C). On July 31, 2012 Chase substituted NDEx as trustee under the Deed of Trust. (RJN Ex. D). Two Notices of Trustee's Sale were recorded on August 27, 2012 and October 16, 2012. (RJN Exs. E, F). By this time there was an unpaid balance on the loan of approximately $340, 000. ( Id. ). On November 19, 2012 Chase assigned the beneficial interest to Fannie Mae and it was recorded November 28, 2012. (RJN Ex. G). On November 26, 2012 NDEx executed a Trustee's Deed Upon Sale, granting the property to Fannie Mae after a public auction, which was recorded on November 28, 2012. (Ex. H).

Plaintiff filed his Complaint on August 27, 2014. (Docket No. 1). In it he challenges the standing of the various entities named in the Complaint to foreclose on his property because he alleges that in some way the right to foreclose was separated from the transferred interest during the process by which his loan was securitized. He also alleges violations of various federal laws and the National Mortgage Settlement ("NMS") consent order.

Specifically Plaintiff alleges the following claims for relief: 1) Intentional non-disclosure; 2) Missing Public Recording Assignments and Violation of California law; 3) Fraud in the Factum; 4) Violations of the NMS Consent Order; 5) Violations of 15 U.S.C. § 1641; and 6) Violations of the Uniform Electronic Transactions Act.

Motion to Dismiss

In ruling on a motion under Federal Rule of Civil Procedure 12(b)(6), the Court follows Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). "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.'" Iqbal, 556 U.S. at 678 (citation omitted). "All allegations of material fact in the complaint are taken as true and construed in the light most favorable to the plaintiff." Williams v. Gerber Prods. Co., 552 F.3d 934, 937 (9th Cir. 2008) (holding that a plaintiff had plausibly stated that a label referring to a product containing no fruit juice as "fruit juice snacks" may be misleading to a reasonable consumer). However, the Court need not accept as true "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements...." Iqbal, 556 U.S. at 678. The Court, based on judicial experience and common-sense, must determine whether a complaint plausibly states a claim for relief. Id. at 679.

Plaintiff filed the Complaint pro se. Because it was filed pro se, it is "to be liberally construed... and however inartfully pleaded, must be held to less stringent standards than formal pleadings drafter by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted); Cf. Fed. Rule Civ. Proc. 8(f) ("All pleadings shall be so construed as to do substantial justice.").

In the Complaint, the bulk of Plaintiff's factual allegations relate to Defendants' purported lack of authority to foreclose because of alleged deficiencies in the manner in which Plaintiff's loan was handled. Much of Plaintiff's allegations, however, are unclear, irrelevant and do not identify with any specificity the basis for his claims. More fundamentally problematic however, is that Plaintiff may not ...

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