United States District Court, N.D. California
AMELIA A. PABALATE, Plaintiff,
NATIONSTAR MORTGAGE LLC, et al., Defendants.
ORDER RE: MOTION TO DISMISS RE: DKT. NO. 6
MARIA-ELENA JAMES United States Magistrate Judge.
before the Court is Defendants' Motion to Dismiss pursuant
to Federal Rule of Civil Procedure (“Rule”)
12(b)(6). Mot., Dkt. No. 6. Plaintiff Amelia Pabalate filed
an Opposition (Dkt. No. 17) and Defendants filed a Reply
(Dkt. No. 18). The Court previously vacated the May 25, 2017
hearing on the Motion (see Dkt. Nos. 14, 15), and
finds the matter may be decided without oral argument.
See Civ. L.R. 7-1(b). Having considered the
parties' positions, the relevant legal authority, and the
record in this case, the Court GRANTS
Defendants' Motion for the following reasons.
alleges she owns real property located in South San
Francisco, California (the “Property”).
See Compl. at 2, Dkt. No. 1-1. Plaintiff executed a
promissory note on August 4, 2006 in favor of Aegis Wholesale
Corporation in the amount of $749, 950 (the
“Note”). Id. at 4. The Note was secured
by a Deed of Trust (“DOT”) on the Property.
Id. Plaintiff alleges unknown entities were involved
in an attempt to securitize her loan, but because they failed
to follow “various agreements and established
laws” Plaintiffs loan was not assigned. Id. at
5. In 2011, Plaintiff fell behind on her mortgage payments
and initiated loan modifications with her mortgage servicer,
Bank of America. Id. at 6. The modification
agreement was executed on November 16, 2011 and stated the
lender was Bank of America; the loan modification was not
recorded until March 12, 2013. Id. Plaintiff again
fell behind on her mortgage payments and initiated loan
modification negotiations once more. Id. Plaintiffs
mortgage had been transferred from Bank of America to
Nationstar. Id. Nationstar denied Plaintiff s
request for a loan modification. Id. Although Aegis
failed to assign or transfer the Note to U.S. Bank, U.S. Bank
nonetheless attempted to collect on the Note and enforce the
DOT “with the knowledge that they have no legal right
to do so.” Id. at 4-5, 7.
on these allegations, Plaintiff filed suit in Superior Court
of San Mateo County, asserting claims for declaratory relief,
negligence, quasi contract, breach of contract, breach of the
implied covenant of good faith and fair dealing, violation of
the California Homeowner's Bill of Rights, Cal. Civ. Code
§§ 2924.17, 2924(a)(6) (“HBOR”);
California Civil Code § 2934(a)(1)(A); and
California's Unfair Competition Law (“UCL”),
Cal. Bus. & Profs. Code § 17200 et seq. See
removed the action to this Court based on diversity
jurisdiction. See Not. of Removal, Dkt. No. 1. They
now move to dismiss the action, with prejudice, because
Plaintiff lacks standing to pursue her securitization claims
(first through third, and sixth through eighth claims), and
because she fails to state a basis for any of her claims.
See Mot. In her Opposition, Plaintiff argues she has
sufficiently stated claims for declaratory relief,
negligence, HBOR, breach of contract, breach of the implied
covenant of good faith and fair dealing, and the UCL. She
does not argue she has pleaded a claim for quasi contract or
under Section 2934(a)(1)(A).
8(a) requires that a complaint contain a “short and
plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). A complaint
must therefore provide a defendant with “fair
notice” of the claims against it and the grounds for
relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007) (internal quotations and citation omitted).
may dismiss a complaint under Rule 12(b)(6) when it does not
contain enough facts to state a claim to relief that is
plausible on its face. Id. at 570. “A claim
has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). “The plausibility standard is not akin to a
‘probability requirement, ' but it asks for more
than a sheer possibility that a defendant has acted
unlawfully.” Id. (quoting Twombly,
550 U.S. at 557). “While a complaint attacked by a Rule
12(b)(6) motion to dismiss does not need detailed factual
allegations, a plaintiffs obligation to provide the
‘grounds' of his ‘entitle[ment] to relief
requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.
Factual allegations must be enough to raise a right to relief
above the speculative level.” Twombly, 550
U.S. at 555 (internal citations and parentheticals omitted).
considering a motion to dismiss, a court must accept all of
the plaintiffs allegations as true and construe them in the
light most favorable to the plaintiff. Id. at 550;
Erickson v. Pardus, 551 U.S. 89, 93-94 (2007);
Vasquez v. Los Angeles Cty., 487 F.3d 1246, 1249
(9th Cir. 2007). In addition, courts may consider documents
attached to the complaint. Parks Sch. of Bus., Inc. v.
Symington, 51 F.3d 1480, 1484 (9th Cir. 1995) (citation
Rule 12(b)(6) motion is granted, the “court should
grant leave to amend even if no request to amend the pleading
was made, unless it determines that the pleading could not
possibly be cured by the allegation of other facts.”
Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000)
(en banc) (internal quotations and citations omitted).
However, the Court may deny leave to amend for a number of
reasons, including “undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the
amendment, [and] futility of amendment.” Eminence
Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th
Cir. 2003) (citing Foman v. Davis, 371 U.S. 178, 182
Request for Judicial Notice
Court may take judicial notice of “fact[s] that [are]
not subject to reasonable dispute because [they are]
generally known” or “can be accurately and
readily determined from sources whose accuracy cannot
reasonably be questioned.” Fed.R.Evid. 201(d).
Defendants ask the Court to take judicial notice of seven
documents: the Note (Request for Judicial Notice
(“RJN”), Ex. 1, Dkt. No. 7), the DOT Executed by
Plaintiff (RJN, Ex. 2), Assignment of the DOT (RJN, Ex. 3),
the Corporate Assignment of DOT (RJN Ex. 4), the Substitution
of Trustee (RJN, Ex. 5), the Notice of Default (RJN Ex. 6),
and the Notice of the Trustee's Sale (RJN, Ex. 7). Except
for the Note, each of these exhibits is a true and correct
copy of documents recorded in the Official Records of San
Mateo County. See RJN at 1-2. Exhibits 2-7 are
judicially noticeable because they are matters of public
record and because their accuracy can be readily determined
by resorting to sources whose accuracy cannot reasonably be
questioned. Fed.R.Evid. 201(b); Lee v. City of L.A.,
250 F.3d 668, 689 (9th Cir. 2001) (“A court may take
judicial notice of matters of public record . . . But a court
may not take judicial notice of a fact that is subject to
reasonable dispute.”); see also Rees v. PNC Bank,
N.A., 308 F.R.D. 266, 271 (N.D. Cal. 2015) (taking
judicial notice of recorded deed of trust, recorded
assignments of deed of trust, recorded notice of default, and
recorded notice of trustee's sale); Almutarreb v.
Nationstar Mortg. Holdings, 2016 WL 3384067, at *2 (N.D.
Cal. June 20, 2016) (“[P]ublicly-recorded real estate
instruments and notices, including deeds of trust and default
and foreclosure notices, are the proper subject of judicial
notice, unless their authenticity is subject to reasonable
does not object to the RJN, and does not dispute the
authenticity of these public records; indeed, she attached
copies of several of these same documents to the Complaint,
including the Note, which Defendants attach as Exhibit 1 to
their RJN. See Compl., Ex. A (DOT), Ex. D (the
Note), Ex. E (Assignment of the DOT), Ex. F (Corporate
Assignment of DOT), Ex. G (Substitution of Trustee). The
Court accordingly takes judicial notice of the existence of
RJN Exhibits 1-5, but not of the truth of their contents. As
the Court does not rely on Exhibits 6-7, it denies
Defendants' request as to those two exhibits as moot.
addition, the Court may rely upon the exhibits Plaintiff has
attached to the Complaint, including the DOT, the Note, the
Assignments, and the Substitution of Trustee. See Akhtar
v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (quoting
Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir.
2007)); Parks Sch. of Bus., 51 F.3d at 1484.