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Romero v. U.S. Bank, N.A.

United States District Court, N.D. California

July 20, 2016

U.S. BANK, N.A., et al., Defendants.


          MAXINE M. CHESNEY United States District Judge

         Before the Court are two motions: (1) defendant U.S. Bank National Association's ("U.S. Bank") "Motion to Dismiss Complaint for Failure to State a Claim, " filed May 4, 2016; and (2) defendant Old Republic Default Management Services' ("Old Republic") "Motion to Dismiss Complaint, " filed June 13, 2016. Plaintiff Janeth M. Romero has filed opposition to each motion, to which each defendant has replied.[1] Having read and considered the papers filed in support of and in opposition to the motion, the Court rules as follows.[2]


         In 2004, plaintiff and Efren T. Romero purchased a residence on Call Avenue in Hayward, California. (See Compl. at 2:6-8; U.S. Bank's Req. for Judicial Notice. Ex. A.)[3]Plaintiff alleges that, to finance the purchase, she and Efren T. Romero "executed a promissory note and Deed of Trust" that names Downey Savings & Loan Association, F.A. ("Downey") as "Lender." (See Compl. ¶ 8.) Plaintiff alleges that, at some later point, Downey "failed" and became an "incapacitated entity" (see Compl. ¶¶ 75, 102), and that the "FDIC" then became the "receiver for Downey" (see Compl. ¶¶ 101-02). Plaintiff further alleges that, on November 21, 2008, the FDIC entered into a "Purchase & Assumption Agreement" with U.S. Bank. (See Compl. ¶ 101.)

         On May 17, 2011, U.S. Bank recorded in Alameda County, California, a "Blanket Assignment of Deed of Trust, " in which the "Assignor, " identified therein as "Federal Deposit Insurance Corporation as Receiver of Downey Savings and Loan Association, F.A. by U.S. Bank National Association Under Limited Power of Attorney Dated September 29, 2010 Recorded September 29, 2010 in Dallas County, Texas in Document Number 201000250121, " states it assigned to U.S. Bank its interest in the Deed of Trust, and that such assignment is effective as of November 21, 2008. (See Compl. Ex. 2.) On July 2, 2014, Old Republic recorded in Alameda County a "Substitution of Trustee, " in which U.S. Bank states it has substituted Old Republic in place of the prior trustee. (See Compl. Ex. 3.) Also, on July 2, 2014, Old Republic recorded in Alameda County a "Notice of Default and Election to Sell Under Deed of Trust, " in which Old Republic states that, as of July 9, 2014, the amount "past due" is $34, 737.82. (See Compl. Ex. 4.)[4]

         Plaintiff alleges the assignment of the Deed of Trust to U.S. Bank is "void" for the asserted reason that the "loan contract was not received by FDIC as Receiver for Downey . . . prior to the recorded blanket assignment." (See Compl. ¶¶ 34, 36.) Additionally, plaintiff alleges, the assignment contains "false representations" (see Compl. ¶ 71), and U.S. Bank "filed" the assignment knowing it to be "false" (see Compl. ¶ 45).

         Based on the above-referenced allegations, plaintiff asserts five causes of action, titled, respectively, "Intentional Misrepresentation, " "Intentional Interference With Contractual Relations, " "Violation of California Homeowner Bill of Rights, " "Unfair Business Practices, " and "Wrongful Foreclosure."


         Dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure “can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). Rule 8(a)(2), however, “requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief.’” See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Fed.R.Civ.P. 8(a)(2)). Consequently, “a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations.” See id. Nonetheless, “a plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” See id. (internal quotation, citation, and alteration omitted).

         In analyzing a motion to dismiss, a district court must accept as true all material allegations in the complaint, and construe them in the light most favorable to the nonmoving party. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). “To survive a motion to dismiss, a complaint must contain sufficient factual material, 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 570). “Factual allegations must be enough to raise a right to relief above the speculative level[.]” Twombly, 550 U.S. at 555. Courts “are not bound to accept as true a legal conclusion couched as a factual allegation.” See Iqbal, 556 U.S. at 678 (internal quotation and citation omitted).


         Defendants contend the complaint is subject to dismissal in its entirety.

         A. Causes of Action Asserted on Behalf of Efren T. Romero

         In addition to Janeth M. Romero, the complaint assertedly is brought on behalf of Efren T. Romero, as his name appears in the caption, as well as in the body of the complaint (see Compl. at 1:25), and the complaint purportedly is signed by him (see Compl. at 32). As U.S. Bank has demonstrated, however, Efren T. Romero died in 2009. (See U.S. Bank's Req. for Judicial Notice Ex. B.)[5] U.S. Bank argues that the claims brought on behalf of such decedent are subject to dismissal for the reason that, as U.S. Bank interprets the complaint, the conduct on which the claims are based occurred after his death.[6]

         In her opposition to each motion, plaintiff states the inclusion of Efren T. Romero in the complaint was an error, and has filed a "Notice of Errata" to indicate that Efren T. Romero is not a plaintiff. Under such circumstances, the Court, without further addressing the date on which the claims accrued, will dismiss the complaint without leave to amend to the extent it is brought on behalf of Efren T. Romero.

         The Court next considers in turn each cause of action alleged on behalf of Janeth M. Romero.

         B. Causes of Action on Behalf ...

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