United States District Court, E.D. California
REINA C. MONTES, Plaintiff,
WELLS FARGO BANK, N.A.; NBS DEFAULT SERVICES, LLC; and DOES 1-10, inclusive, Defendant.
mortgage dispute comes before the court on defendants'
motion to dismiss. ECF No. 5. Plaintiff Reina C. Montes
opposes, and defendants replied. ECF Nos. 9, 10. The court
held a motion hearing on September 9, 2016, at which Russell
Wyatt appeared for plaintiff and Dean Reeves appeared for
defendants. ECF No. 14. For the following reasons,
defendants' motion to dismiss is GRANTED.
court may judicially notice a fact that is not subject to
reasonable dispute because it (1) is generally known within
the territorial jurisdiction, or (2) can be accurately and
readily determined by trial courts from sources whose
accuracy cannot reasonably be questioned.” Fed.R.Evid.
201(b). A court shall take judicial notice if requested by a
party and supplied with the necessary information.
Fed.R.Evid. 201(c)(2). Judicially noticed facts often consist
of matters of public record. See, e.g., Emrich
v. Touche Ross & Co., 846 F.2d 1190, 1198 (9th Cir.
Defendants request the court take judicial notice of seven
(1) Exhibit A, including documents regarding the succession
of World Savings Bank by Wells Fargo;
(2) Exhibit B, a Deed of Trust, dated November 4, 2004 for
(3) Exhibit C, a loan modification agreement dated October
(4) Exhibit D, a loan modification agreement dated June 3,
(5) Exhibit E, a loan modification agreement dated September
(6) Exhibit F, denial letters dated October 29, 2015
regarding Montes's application for a loan modification;
(7) Exhibit G, a denial letter dated May 26, 2016 regarding
Montes's application for a loan modification.
Exs. A-G, Defs.' Mot., ECF No. 5. Montes does not object
to defendants' request.
respect to Exhibit A, judicial notice is appropriate because
“those documents reflect the official acts of the
executive branch of the United States.” Preciado v.
Wells Fargo Home Mortgage, No. 13-00382, 2013 WL
1899929, at *3 (N.D. Cal. May 7, 2013). Additionally,
judicial notice is appropriate when “it is information
obtained from a governmental website.” Id.;
see Paralyzed Veterans of Am. v. McPherson, 2008 WL
4183981, at *5 (N.D. Cal. Sept. 9, 2008) (taking judicial
notice of information appearing on and printed from official
respect to Exhibit B, judicial notice is appropriate because
the document is a matter of public record. See Lee v.
City of L.A., 250 F.3d 668, 689 (9th Cir. 2011),
overruled on other grounds, Galbraith v. Cnty. of Santa
Clara, 307 F.3d 1119, 1125 (9th Cir. 2002).
respect to Exhibits C through G, judicial notice is
appropriate because these comprise copies of documents
referred to in the complaint or which form the basis of
Montes's claims, and their authenticity is not reasonably
in question. A court may consider evidence on which the
complaint “necessarily relies” if (1) the
complaint refers to the document; (2) the document is central
to the plaintiff's claim; and (3) no party questions the
authenticity of the copy attached to the 12(b)(6) motion.
Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006);
Branch v. Tunnell, 14 F.3d 449, 453-54 (9th Cir.
1994) (documents not attached to the complaint may be
incorporated by reference if plaintiff referred to document
in the complaint or if document forms basis of
claims arise from the following allegations, and from
documents attached to the complaint and incorporated by
reference. See Fed. R. Civ. P. 10(c); Davis v.
HSBC Bank Nevada, N.A., 691 F.3d 1152, 1159 (9th Cir.
2012) (“Our relevant case law has recognized
consistently that the district court may . . . incorporate
documents by reference.”). On November 4, 2004, Montes
took out a loan from Wells Fargo's predecessor, World
Savings Bank, to purchase a home in Sacramento, California.
Compl. ¶ 7, ECF No. 1. Approximately two years later,
Wachovia acquired World Savings Bank, and on January 1, 2009,
Wells Fargo acquired Wachovia. Id. ¶ 8.
December 2015, Montes contacted Wells Fargo to seek
foreclosure avoidance assistance. Id. ¶ 15. On
December 19, 2015, Wells Fargo responded with a letter that
included an invitation to submit an application for a loan
modification, as well as an enumerated list of the documents
Montes would need to send Wells Fargo for Wells Fargo to
determine whether Montes would qualify for a loan
modification. Id. The letter provided Montes with a
deadline of January 18, 2016 to submit her application to
Wells Fargo. Id. ¶ 16. Meanwhile, on January 8,
2016, Wells Fargo and co-defendant NBS Default Services