United States District Court, C.D. California
PRESENT: THE HONORABLE DAVID O. CARTER, JUDGE.
CIVIL MINUTES - GENERAL
(IN CHAMBERS): GRANTING DEFENDANT'S MOTION TO DISMISS
; DENYING PLAINTIFF'S MOTION TO REMAND 
the Court are Defendant's Motion to Dismiss
(“MTD”) (Dkt. 7), and Plaintiff's Motion to
Remand (“MTR”) (Dkt. 12). The Court finds these
matters appropriate for resolution without oral argument.
See Fed. R. Civ. P. 78; L.R. 7-15. After reviewing
the moving papers and considering the parties arguments, the
Court GRANTS Defendant's Motion to Dismiss TD and DENIES
Plaintiff's Motion to Remand.
Court adopts the facts as set out in Plaintiff's
Complaint (“Complaint”) (Dkt. 1-1) and the
documents attached to Defendant's Request for Judicial
Notice (“RJN”) (Dkt. 8).
March 16, 2007, Plaintiff Amany Simmonds
(“Plaintiff”) took out a $626, 400.00 loan (the
“Loan”) from an investor through World Savings
Bank, FSB (“WSB”) for her residence located at 11
Style Drive, Aliso Viejo, California (the
“Property”). Compl. ¶¶ 1, 3. A
promissory note (“Note”) and Deed of Trust were
executed the same day. Id. ¶ 3.
December 31, 2007, WSB was acquired by Wachovia Mortgage, FSB
(“Wachovia”). Id. ¶ 8. In August
2009, Plaintiff attempted to obtain a modification or
forbearance on her Loan. Id. ¶ 9.
November 1, 2009, Wachovia was acquired by Defendant Wells
Fargo Bank, N.A. (“Wells Fargo” or
April 29, 2010, Plaintiff fell behind on her payments, and
Wells Fargo recorded a Notice of Default on Plaintiff's
Property. Id. ¶ 10. On September 14, 2010 and
December 30, 2011, Wells Fargo recorded Notices of Trustee
Sale, but both sales was subsequently cancelled. Id.
From August 2009 to December 2011, Plaintiff allegedly asked
Wells Fargo to show her the original Note on her Loan several
times, but Wells Fargo failed to produce it. Id.
time Plaintiff borrowed the loan, Plaintiff was on disability
and earned approximately $700 per week, but on the loan
application WSB stated that Plaintiff earned about $150, 000
per year. Id. ¶ 4. Plaintiff's Loan was a
“pick-a-payment” loan, which meant she would be
able to pick which payment she wanted to make each month.
Id. However, Plaintiff allegedly was not told that
as a result of the payment plan she selected, her balance was
negatively amortized-meaning the total amount due on the loan
increased. Id. ¶ 5.
filed an action against Wells Fargo on August 22, 2012 in the
Superior Court of California for the County of Orange.
See RJN Ex. E. It was subsequently removed to the
Central District of California, see Amany Simmonds v.
Wells Fargo Bank, NA, No. 13-00294-JVS (RNBx) (C.D. Cal.
Apr. 2, 2013), and the court dismissed the case on April 2,
2013. See Id. Ex. F.
December 2016, Plaintiff became aware of a Settlement
Agreement between Wells Fargo and the State of California
that required Wells Fargo to grant loan modifications to home
owners who received a “pick-a-payment” loan from
WSB. Compl. ¶ 5. Wells Fargo never offered this loan
modification to Plaintiff. Id.
filed this suit in the California Superior Court for the
County of Orange on January 30, 2017 (“Notice of
Removal”) (Dkt. 1). Wells Fargo removed the action to
the Central District of California on February 27, 2017.
Plaintiff brings the following claims: (1) fraud, (2) breach
of settlement agreement, (3) cancellation of foreclosure
instruments, (4) wrongful foreclosure, and (5) declaratory
relief. See Compl.
March 3, 2017, Wells Fargo filed the instant Motion to
Dismiss and a Request for Judicial Notice (“RJN”)
(Dkt. 8). Plaintiff opposed on March 16, 2017 (“MTD