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Cueto v. World Savings Bank

United States District Court, S.D. California

July 24, 2017

PATRICIA CUETO, Plaintiff,
v.
WORLD SAVINGS BANK, FSB; WORLD SAVINGS BANK FSB, THE BANK OF NEW YORK MELLON AS TRUSTEE FOR SECURITIZED TRUST WORLD SAVINGS BANK MORTGAGE PASS-THROUGH CERTFICATES REMIC 23 TRUST WORLD SAVINGS BANK, FSB; and DOES 1 through 100, inclusive, Defendants.

          ORDER GRANTING DEFENDANTS' MOTION TO DISMISS WITH LEAVE TO AMEND [Doc. No. 3]

          MARILYN L. HUFF, District Judge

         On June 12, 2017, Defendants Wells Fargo Bank, N.A., successor by merger to Wells Fargo Bank Southwest, N.A., f/k/a Wachovia Mortgage, FSB f/k/a World Savings Bank, FSB and The Bank of New York Mellon (“Defendants”) filed a motion to dismiss Plaintiff Patricia Cueto's (“Plaintiff”) complaint. (Doc. No. 3.) On June 28, 2017, the Court submitted the motion on the papers. (Doc. No. 6.) In that same order, the Court noted that Plaintiff's opposition had not yet been filed, and ordered the opposition to be filed on or before July 3, 2017, with Defendant's reply, if any, due by July 10, 2017. (Id.) To date, Plaintiff has yet to file an opposition. For the reasons below, the Court grants Defendant's motion to dismiss the complaint without prejudice.

         Background

         This action arises out of Plaintiff's mortgage. On March 15, 2006, Plaintiff borrowed $420, 000.00 from World Savings Bank, FSB (“World Savings”) and executed a Deed of Trust to real property commonly known as 4944 Chateau Dr., San Diego, CA, as a security for the loan. (Doc. No. 4, Request for Judicial Notice (“RJN”) Ex. A.)[1] In January 2008, World Savings changed its name to Wachovia Mortgage, FSB (“Wachovia Mortgage”). (Doc. No. 4, RJN Ex. C.) In November 2009, Wachovia Mortgage changed its name to Wells Fargo Bank Southwest, N.A., and merged into Wells Fargo Bank, N.A. (“Wells Fargo”). (Doc. No.4, RJN Ex. E.)

         On May 29, 2013, there was a Notice of Default and Election to Sell under the Deed of Trust. (Doc. No. 4, RJN Ex. F.) On November 16, 2016, there was a Notice of Trustee's Sale as to Plaintiff's property. (Doc. No. 4, RJN Ex. G.) On April 7, 2017, Plaintiff filed for bankruptcy pursuant to Chapter 13 of the United States Bankruptcy Code. (Doc. No. 4, RJN Ex. H.) On April 25, 2017, the bankruptcy court dismissed Plaintiff's Chapter 13 action. (Doc. No. 4, RJN Ex. I.)

         On May 25, 2017, following the dismissal of her bankruptcy action, Plaintiff, proceeding pro se, filed a complaint in the San Diego County Superior Court against Defendants Wells Fargo[2] and The Bank of New York Mellon (“Bank of New York”), alleging causes of action for (1) wrongful foreclosure; (2) fraud in the concealment; (3) fraud in the inducement; (4) unconscionable contract; (5) breach of contract; (6) breach of fiduciary duty; (7) quiet title; (8) temporary restraining order and injunctive relief; and (9) declaratory relief. (Doc. 1-2, Compl.) On June 6, 2017, Defendants removed the action pursuant to 28 U.S.C. § 1441 to this Court on the basis of diversity jurisdiction. (Doc. No. 1, Notice of Removal.) By the present motion, Defendants move to dismiss all of the causes of action in Plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. (Doc. No. 3-1.)

         Discussion

         I. Legal Standards for a Rule 12(b)(6) Motion to Dismiss

         A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the pleadings and allows a court to dismiss a complaint if the plaintiff has failed to state a claim upon which relief can be granted. See Conservation Force v. Salazar, 646 F.3d 1240, 1241 (9th Cir. 2011). Federal Rule of Civil Procedure 8(a)(2) requires that a pleading stating a claim for relief contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” The function of this pleading requirement is to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

         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.” Twombly, 550 U.S. 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). “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Id. (quoting Twombly, 550 U.S. at 555). “Nor does a complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Id. (quoting Twombly, 550 U.S. at 557). Accordingly, dismissal for failure to state a claim is proper where the claim “lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008).

         In reviewing a Rule 12(b)(6) motion to dismiss, a district court must accept as true all facts alleged in the complaint, and draw all reasonable inferences in favor of the plaintiff. See Retail Prop. Trust v. United Bhd. of Carpenters & Joiners of Am., 768 F.3d 938, 945 (9th Cir. 2014). But a court need not accept “legal conclusions” as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Further, it is improper for a court to assume the plaintiff “can prove facts which it has not alleged or that the defendants have violated the . . . laws in ways that have not been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). In addition, a court may consider documents incorporated into the complaint by reference and items that are proper subjects of judicial notice. See Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010).

         If the court dismisses a complaint for failure to state a claim, it must then determine whether to grant leave to amend. See Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995). “‘A district court may deny a plaintiff leave to amend if it determines that ‘allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency, ' or if the plaintiff had several opportunities to amend its complaint and repeatedly failed to cure deficiencies.” Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 2010) (internal quotation marks and citations omitted).

         II. Plaintiff's Complaint

         A. Lack of ...


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