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Simmonds v. Wells Fargo Bank, N.A.

United States District Court, C.D. California

April 7, 2017

AMANY SIMMONDS
v.
WELLS FARGO BANK, N.A. ET AL.

          PRESENT: THE HONORABLE DAVID O. CARTER, JUDGE.

          CIVIL MINUTES - GENERAL

         PROCEEDINGS (IN CHAMBERS): GRANTING DEFENDANT'S MOTION TO DISMISS [7]; DENYING PLAINTIFF'S MOTION TO REMAND [12]

         Before 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.

         I. Background

         A. Facts

         The 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).

         On 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.

         On 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.

         On November 1, 2009, Wachovia was acquired by Defendant Wells Fargo Bank, N.A. (“Wells Fargo” or “Defendant”). Id.

         On 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. ¶ 11.

         At the 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.

         Plaintiff 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.

         In 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.

         B. Procedural History

         Plaintiff 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.

         On 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 ...


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