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Montes v. Wells Fargo Bank, N.A.

United States District Court, E.D. California

March 22, 2017

REINA C. MONTES, Plaintiff,
v.
WELLS FARGO BANK, N.A.; NBS DEFAULT SERVICES, LLC; and DOES 1-10, inclusive, [1]Defendant.

          ORDER

         This 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.

         I. JUDICIAL NOTICE

         “The 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. 1988).

Defendants request the court take judicial notice of seven exhibits:
(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 Montes's property;
(3) Exhibit C, a loan modification agreement dated October 16, 2007;
(4) Exhibit D, a loan modification agreement dated June 3, 2009;
(5) Exhibit E, a loan modification agreement dated September 1, 2013;
(6) Exhibit F, denial letters dated October 29, 2015 regarding Montes's application for a loan modification; and
(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.

         With 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 government websites).

         With 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).

         With 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 plaintiff's claims).

         II. BACKGROUND

         Montes's 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.

         In 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. ΒΆ 16. Meanwhile, on January 8, 2016, Wells Fargo and co-defendant NBS Default Services ...


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