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Fenton v. Wells Fargo Home Mortgage

United States District Court, S.D. California

April 12, 2017

NANCY L. FENTON, Plaintiff,
v.
WELLS FARGO HOME MORTGAGE ET AL., Defendants.

          ORDER (1) GRANTING MOTION TO DISMISS AND (2) GRANTING IN PART AND DENYING IN PART REQUEST FOR JUDICIAL NOTICE

          Hon. Dana M. Sabraw United States District Judge

         Pending before the Court is Defendant Wells Fargo Home Mortgage's (“Wells Fargo”) motion to dismiss Plaintiff Nancy L. Fenton's complaint and request for judicial notice. Defendant Northwest Trustee Services, Inc. (“Northwest”) joins in Wells Fargo's motion to dismiss. Plaintiff filed a response, and Defendant Wells Fargo filed a reply. For the following reasons, Defendant's motion to dismiss is granted and the request for judicial notice is granted in part and denied in part.

         I. BACKGROUND

         This action concerns the foreclosure proceedings on Plaintiff's real property located at 4175 Porte De Merano #163, San Diego, California 92122 (“subject property”). (ECF No. 1, Ex. A (“Complaint”) ¶ 5.) Plaintiff allegedly obtained a loan from Golden West Savings Association Service Co. (“Golden West Savings”) to purchase the subject property.[1] (Id. ¶ 6.) Plaintiff claims she paid off the loan on July 21, 2004.[2] (Id.)

         Thereafter, on September 22, 2006, Plaintiff obtained a loan from World Savings Bank, FSB (“World Savings”) in the amount of $308, 500. Wells Fargo is the legal successor to World Savings.[3] (ECF No. 1, Ex. C.) This loan was secured by a deed of trust recorded against the subject property.[4] (Id.) The deed of trust lists Golden West Savings as trustee.[5] (Id.)

         In August 2016, Wells Fargo executed and recorded a notice of default against Plaintiff. (ECF No., Ex. B.) Wells Fargo claims the notice of default indicated that Plaintiff was $16, 251.75 in default on her loan. (Mem. of P. & A. in Supp. of Mot. at 3.) Subsequently, the subject property was scheduled for foreclosure on December 20, 2016. (Compl. ¶ 10.)

         On December 6, 2016, Plaintiff filed a complaint in the San Diego County Superior Court, alleging the following claims: (1) quiet title, (2) declaratory relief, and (3) injunctive relief. (Compl. ¶¶ 11-21.) Subsequently, Plaintiff filed an emergency ex parte application to cancel foreclosure, which the Superior Court granted on December 8, 2016. ((ECF No., Ex. B.) On January 20, 2017, Defendants removed the action to federal court, invoking this Court's diversity jurisdiction pursuant to 28 U.S.C. § 1332. The present motion followed.

         II.

         DISCUSSION

         A. Request for Judicial Notice

         Generally, a court may not consider material beyond the complaint in ruling on a Rule 12(b)(6) motion. Lee v. City of L.A., 250 F.3d 668, 688 (9th Cir. 2001). However, a court may “consider certain materials-documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice-without converting the motion to dismiss into a motion for summary judgment.” United States v. Ritchie, 342 F.3d 903, 907-08 (9th Cir. 2003). Under Federal Rule of Evidence 201(b), a judicially noticed fact must be one “not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Therefore, “[a] court may take judicial notice of ‘matters of public record' without converting a motion to dismiss into a motion for summary judgment, ” as long as the facts noticed are not “subject to reasonable dispute.” Intri-Plex Technologies, Inc. v. Crest Group Inc., 499 F.3d 1048, 1052 (9th Cir. 2007) (quoting Lee, 250 F.3d at 689).

         Defendant requests the Court take judicial notice of the following ten documents: (1) deed of trust recorded on July 12, 2004 (“Exhibit A”), (2) deed of trust recorded on October 6, 2006 (“Exhibit B”), (3) full reconveyance recorded on October 19, 2006 (“Exhibit C”), (4) certificate of corporate existence issued by Office of Thrift Supervision, Department of the Treasury (“OTS”) (“Exhibit D”), (5) a letter from OTS reflecting name change from World Savings Bank, FSB to Wachovia Mortgage, FSB (“Exhibit E”), (6) charter of Wachovia Mortgage (“Exhibit F”), (7) official certification of the Comptroller of the Currency, reflecting Wachovia Mortgage's merger into Wells Fargo (“Exhibit G”), (8) printout from website of the Federal Deposit Insurance Corporation (“FDIC”), showing the history of Wachovia Mortgage (“Exhibit H”), (9) portions of Plaintiff's bankruptcy petition filed on February 5, 2014 (“Exhibit I”), and (10) notice of default and election to sell under deed of trust recorded on August 22, 2016 (“Exhibit J”). Plaintiff challenges the authenticity of Exhibits A and B, contending the deeds of trust are forgeries. As to the remaining exhibits, Plaintiff does not question their authenticity. Plaintiff, however, objects insofar as Defendant seeks to have the Court take judicial notice of the truth of the statements contained in the documents.

         Initially, the Court finds it is unnecessary to take judicial notice of Exhibits B, E, and G, because these documents are already before the Court as exhibits to the Notice of Removal.[6] See, e.g., Beal v. Royal Oak Bar, No. C 13-04911 LB, 2014 WL 1678015, at *2 n.2 (N.D. Cal. Apr. 28, 2014) (denying request for judicial notice “[b]ecause these documents are already filed in the docket for this action, it is unnecessary for the court to take judicial notice of them.”); Johnson v. Haight Ashbury Med. Clinics, Inc., No. C-11-02052-YGR, 2012 WL 629312, at *1 (N.D. Cal. Feb. 27, 2012) (denying request for judicial notice “because it is unnecessary to take judicial notice of documents in the record in this action”). Accordingly, Defendant's request for judicial notice as to Exhibits B, E, and G is denied.

         Moreover, the Court declines to take judicial notice of Exhibit A, because there is sufficient dispute as to the authenticity of the deed of trust. Plaintiff challenges the authenticity of the deed of trust, arguing it is a forgery. In support, Plaintiff has submitted a declaration, attesting that “Exhibit A purports to be a Deed of Trust executed by me in 2004, securing a note from World Savings. The signature on the document is a forgery; I deny taking out any loan from World Savings in 2004.” (Fenton Decl. ¶ 4.) Accordingly, Defendant's request for judicial notice as to Exhibit A is denied. See, e.g., Doss v. Clearwater Title Co., 551 F.3d 634, 640 (7th Cir. 2008) (finding the district court erred in taking judicial notice of a deed of sale when plaintiff claimed it was a forgery); Deen v. City of ...


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