United States District Court, S.D. California
FERNANDO D. LOPEZ, Plaintiff,
WELLS FARGO BANK, N.A.; WELLS FARGO HOME MORTGAGE; FIRST AMERICAN TITLE INSURANCE CO.; U.S. BANK NATIONAL ASSOCIATION, ETAL., Defendants.
ORDER GRANTING DEFENDANTS WELLS FARGO, U.S. BANK, AND
FIRST AMERICAN'S MOTIONS TO DISMISS PLAINTIFF'S
SECOND AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM. (DOC.
NOS. 32, 33)
Anthony J. Battaglia, United States District Judge
before the Court is Defendants WELLS FARGO BANK, N.A. (also
sued as Wells Fargo Home Mortgage) ("Wells Fargo")
and U.S. BANK NATIONAL ASSOCIATION'S ("US
Bank") (collectively "Defendants") motion to
dismiss Fernando Lopez's ("Plaintiff) second amended
complaint ("SAC"). (Doc. No. 33.) Also pending is
Defendant FIRST AMERICAN TITLE INSURANCE COMPANY'S
("First American") motion to dismiss the SAC. (Doc.
No. 32.) The Court finds these motions suitable for
determination on the papers and without oral argument in
accordance with Civil Local Rule 7.1.d.1. For the reasons set
forth more fully below, the Court GRANTS Defendants' and
First American's motions to dismiss.
following facts are taken from the SAC and construed as true
for the limited purpose of resolving the pending motions.
See Moyo v. Gomez, 40 F.3d 982, 984 (9th Cir. 1994).
In 2003, Plaintiff purchased real property located at 947
Merced River Road, Chula Vista, California 91913 (the
"Property"). (Doc. No. 31 ¶ 9.) In 2004,
Plaintiff executed a loan (the "Loan") with Wells
Fargo. (Id.) The Loan was secured by a Deed of Trust
in favor of Wells Fargo, encumbering the Property ("Deed
of Trust"). (Id. ¶ 10.) On June 16, 2005,
Wells Fargo placed the Loan into a "Pooling and
Servicing Agreement" and converted it into stock as
Wells Fargo Mortgage-Backed Securities ("Trust").
(Id. ¶ 11.)
2009, Plaintiff requested a loan modification from Wells
Fargo. (Id. ¶¶ 26-27.) Wells Fargo then
advised Plaintiff to stop making timely loan payments.
(Id. ¶ 27.) Plaintiff complied and as a result
defaulted on the Loan. (Id.) On November 17, 2009, a
Notice of Default was recorded against the Property.
(Id. ¶ 30.) In 2010, Plaintiff filed a Chapter
13 Bankruptcy Petition. (Id. ¶ 27.)
December 22, 2009, First American was recorded as the
substitution trustee under the Deed of Trust. (Id.
¶ 31.) Plaintiff alleges that this document was not
signed by Wells Fargo but signed by Chet Sconyers who is the
Vice President at First American Trustee Servicing and is
allegedly involved in the robo-signing of loan and mortgage
documents. (Id.) The beneficial interest of the Deed
of Trust was then transferred by assignment to U.S. Bank on
January 6, 2010. (Id. ¶ 32.) On June 5, 2012, a
Notice of Trustee Sale was recorded and on April 3, 2013, a
Notice of Default and election to sell under the Deed of
Trust was recorded. (Id. ¶¶ 34-35.)
Subsequently, First American recorded a Notice of Trustee
Sale on July 1, 2013. (Id. ¶ 35.) Plaintiff
claims that this document was executed by rubber stamp and
the signor's signature is illegible. (Id.) On
September 16, 2014, Plaintiff sent a Notice of Validation of
Alleged Debt to First American. (Id. ¶ 36.) On
June 11, 2015, Plaintiff filed another Chapter 13 petition.
(Id. ¶ 40.) As of the date of this filing, the
Property has not yet been sold. (See generally id.)
Plaintiff alleges that his loan was underwritten without
proper due diligence and that Wells Fargo illegally or
deceptively qualified Plaintiff for a loan they should have
known that Plaintiff could not afford. (Id.
¶¶ 20-21.) Furthermore, Plaintiff argues that First
American and Defendants unlawfully assigned, and transferred
their ownership and security interest in Plaintiffs home.
(Id. at 2.) As a result, Plaintiff contends that
Defendants and First American intentionally and negligently
foreclosed on Plaintiffs property with no authority to do so.
(Id. ¶ 42.)
April 5, 2016, Plaintiff filed a complaint against Defendants
and First American asserting several claims for relief. (Doc.
No. 1.) On April 26, 2016, Defendants filed a motion to
dismiss for failure to state a claim. (Doc. No. 8.) On May
23, 2016, First American filed a motion to dismiss for
failure to state a claim and for lack of subject matter
jurisdiction. (Doc. No. 12.) On July 1, 2016, the Court
dismissed the complaint for lack of subject matter
jurisdiction and denied as moot Defendants and First
American's motions to dismiss. (Doc. No. 19.) On July 28,
2016, Plaintiff filed his first amended complaint
("FAC"). (Doc. No. 20.) Thereafter, on August 10,
and 16, 2016, First American and Defendants moved to dismiss
Plaintiffs FAC. (Doc. Nos. 21, 23.) On November 23, 2016, the
Court granted Defendants and First American's motions to
dismiss Plaintiffs FAC without prejudice. (Doc. No. 30.)
Plaintiffs claims under the Truth in Lending Act, Fair
Housing Act, and Equal Credit Opportunity Act were dismissed
with prejudice. (Id. at 22.)
December 7, 2016, Plaintiff filed his SAC. (Doc. No. 31.)
Plaintiff alleges the following causes of actions against
Defendants and First American: (1) lack of standing to
foreclose; (2) fraud in concealment and inducement; (3)
violation of the Rosenthal Fair Debt Collection Practices Act
("Rosenthal Act"); (4) violation of the Real Estate
Settlement Procedures Act ("RESPA"); (5)
intentional infliction of emotional distress
("IIED"); (6) slander of title; (7) unlawful and
fraudulent business practice; (8) violation of Homeowners
Bill of Rights ("HBOR"); (9) quiet title; and (10)
declaratory relief. (Id. at 1.) On December 22 and
23, 2016, First American and Defendants moved to dismiss
Plaintiffs SAC. (Doc. Nos. 32, 33.) Plaintiff filed a single
opposition to both Defendants' and First American's
motions to dismiss. (Doc. No. 39.).
motion to dismiss under Rule 12(b)(6) tests the legal
sufficiency of a plaintiffs complaint and allows a court to
dismiss a complaint upon a finding that the plaintiff has
failed to state a claim upon which relief may be granted.
See Navarro v. Block, 250 F.3d 729, 732 (9th Cir.
2001). "[A] court may dismiss a complaint as a matter of
law for (1) lack of a cognizable legal theory or (2)
insufficient facts under a cognizable legal claim."
SmileCare Dental Grp. v. Delta Dental Plan of Cal,
Inc., 88 F.3d 780, 783 (9th Cir. 1996) (citation
omitted). However, a complaint will survive a motion to
dismiss if it contains "enough facts to state a claim to
relief that is plausible on its face." Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). In making
this determination, a court reviews the contents of the
complaint, accepting all factual allegations as true, and
drawing all reasonable inferences in favor of the nonmoving
party. Cedars-Sinai Med. Ctr. v. Nat'l
League of Postmasters of U.S., 497 F.3d 972, 975
(9th Cir. 2007).
this deference, the reviewing court need not accept
"legal conclusions" as true. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). It is also improper for
a court to assume "the [plaintiff] can prove facts that
[he or she] has not alleged." Associated Gen.
Contractors of Cal., Inc. v. Cal. State Council of
Carpenters, 459 U.S. 519, 526 (1983). However,
"[w]hen there are well-pleaded factual allegations, a
court should assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief."
Iqbal, 556 U.S. at 679.
Court first turns to Defendants and First American's
request for judicial notice pursuant to Federal Rule of
Evidence 201. (Doc. Nos. 32-2, 33-4.) Defendants and First
American request the Court take judicial notice of several
documents of public record including a grant deed, deed of
trust, assignment of deed of trust, several notices of
default and election to sell, notice of trustee sale, and
copies of U.S. Bankruptcy court case files. (Id.)
"as a general rule, a district court may not consider
materials not originally included in the pleadings in
deciding a Rule 12 motion ... it may take judicial notice of
matters of public record and consider them without converting
a Rule 12 motion into one for summary judgment."
U.S. v. 14.02 Acres of Land, 547 F.3d 943, 955 (9th
Cir. 2008) (quotation and citations omitted). Plaintiff
contends First American's request for judicial notice
should be denied because the documents are in dispute and
constitute inadmissible hearsay. (Doc. No. 39 at 13-18.) In
support of this argument Plaintiff cites to Willis v.
State of Cal., 22 Cal.App.4th 287 (1994), and
Neighborhood Assistance Corp. of Am. v. First One Lending
Corp., No. SACV 12-463 DOC (MLGx), 2012 WL 1698368 (CD.
Cal. May 15, 2012). However, the Court highlights that the
facts of those cases are inapposite to the present matter. In
Willis, 22 Cal.App.4th at 291, the plaintiff simply
requested judicial notice without presenting the court a
certified copy. Similarly in Neighborhood Assistance
Corp. of Am., 2012 WL 1698368, at * 11, the court held
that the facts defendants requested judicial notice of were
not generally known, and the alleged facts were based only on
information from defendants' website.
Defendants and First American request the Court take judicial
notice of official records of the County of San Diego, and
copies of U.S. Bankruptcy Court documents. Thus, as these are
documents that are matters of public record, the Court finds
judicial notice appropriate. See, e.g., Lee v. City of
Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001);
Lingadv. Indymac Fed. Bank, 682 F.Supp.2d 1142, 1146
(E.D. Cal. 2010); Tiqui v. First Nat'l Bank of
Arizona, No. 09cvl750 BTM (BLM), 2010 WL 1345381, at *1
n.2 (S.D. Cal. Apr. 5, 2010). Moreover, Plaintiff references
the documents in his complaint, and the Court has already
taken judicial notice of the documents at issue in its Order
dated November 23, 2016. (Doc. No. 30 at 6.) See Tekle v.
United States, No. CV 01-11096 RSWL EX., 2002 WL
1988178, at *3 (CD. Cal. 2002) (holding that a court may take
judicial notice of a prior complaint with exhibits).
Accordingly, First American's request for judicial notice
and Defendants' unopposed request for judicial notice are
a procedural matter, the Court will turn to Plaintiffs
objections to the documents submitted by First American.
(Doc. No. 39 at 20.) Plaintiff asks the Court to strike First
American's Exhibits A-P for various reasons including:
(1) that the documents constitute inadmissible hearsay; (2)
they lack foundation; and (3) they are irrelevant to the
matter at hand. (See generally, Doc. No. 39 at
20-26.) The Court notes that it acknowledges that Plaintiff
disputes the validity of the documents that First American
requests judicial notice of. Therefore, the Court will take
judicial notice of the documents not for the truth of the
facts recited therein, but only for the existence of the
documents filed. Accordingly, the Court DENIES Plaintiffs
objections in whole.
Lack of Factual Specificity
Court first notes that Plaintiff only filed a single
opposition brief in response to both First American's and
Defendants' motions to dismiss. (Doc. No. 39.)
Additionally and most importantly for purposes of this
motion, Plaintiffs opposition groups all three Defendants
together without distinguishing between them. Therefore, the