United States District Court, N.D. California
ORDER RE MOTION TO DISMISS AND MOTION TO REMAND RE:
DKT. NOS. 11, 16
JACQUELINE SCOTT CORLEY United States Magistrate Judge.
dispute concerns an attempt by Wells Fargo Bank, N.A.
(“Wells Fargo”) and Northwest Trustee Services,
Inc. (“Northwest”) (together,
“Defendants”) to initiate foreclosure proceedings
against Plaintiff Marlene Jean Mosley. Now pending before the
Court are Plaintiff's motion to remand and
Defendants' motion to dismiss. (Dkt Nos. 11, 16.) Having
reviewed the parties' briefing, the Court concludes that
oral argument is unnecessary, see N.D. Cal. Civ.
L.R. 7-1(b), and DENIES Plaintiff's motion to remand and
GRANTS in part and DENIES in part Defendants' motion to
dismiss with leave to amend.
obtained a loan from World Savings Bank in the amount of
$492, 000, secured by a Deed of Trust recorded against the
property. (Complaint ¶ 16.) The beneficial interest
under the Deed of Trust was later assigned to Wells Fargo,
and Northwest Trustee Services Inc. was substituted as the
trustee of the Deed of Trust. (Id. ¶ 18.)
ten years after Plaintiff secured the home loan, Northwest
recorded a Notice of Default on the property. (Id.
¶ 19.) Plaintiff was never notified of any changes
regarding her loan. (Id. ¶ 21.) Plaintiff's
loan was transferred from one beneficiary to another, without
any notification from any parties. (Id.)
before Plaintiff received the Notice of Default, she
submitted a loan modification application. (Id.
¶ 24.) Plaintiff alleges she was verbally denied the
loan modification. (Id.) Plaintiff was informed
there was a chance she might be able to later apply for a
loan modification, her application might be approved, and she
would be able to save her home. (Id.) Instead,
Defendants filed and recorded the Notice of Default.
(Id.) Defendants breached their duty to provide
recourse by failing to notify Plaintiff of default, as
required by paragraph 26 and 28 of the Deed of Trust.
(Id. ¶¶ 78, 79.) Paragraphs 26 and 28 also
require the notice to specify: (a) the default; (b) the
action required to cure the default; (c) a date, not less
than 30 days from the date the notice is given by which the
default must be cured; and (d) that failure to cure before
the date specified may result in acceleration of the security
instrument and sale of the property. (Id.)
Defendants also breached their duty to review the loan
modification documents “fairly and diligently.”
(Id. ¶ 80.)
months after the Notice of Default, a notice of trustee sale
was recorded. (Id. ¶ 19.) Defendants never
contacted Plaintiff to discuss her financial situation or
options for avoiding foreclosure. (Id. ¶ 25.)
Plaintiff requested a single point of contact, but none was
provided. (Id. ¶ 29.)
is an 84 year old woman who has lived on the property at
issue since she was a young child. (Id. ¶ 22.)
Her living expenses are based on her pension, which has been
reduced to a lesser amount than her monthly mortgage
payments. (Id.) Plaintiff takes costly
life-maintenance medications and now also has anxiety about
losing her home. (Id.) Plaintiff seeks general
damages, compensatory damages, interest, consequential
damages, injunctive relief “prohibiting any further
sale of the [s]ubject [p]roperty, ” equitable
injunctive and/or declaratory relief, restitution of profits
that Defendants have unfairly obtained, and costs and
expenses. (Id. at 29.)
Deed of Trust is attached to Plaintiff's complaint as
“Exhibit A.” (Dkt. No. 1 at 30-46.) It is signed
by Plaintiff as the borrower. (Id. at 45.) Paragraph
26 concerns the lender's right to accelerate the sums
secured by the Deed of Trust. (Id. at 42.) The
lender has the right to enforce paragraph 26 if the property
is sold or if the borrower is not a natural person and a
beneficial interest in borrower is sold or transferred
without the lender's prior written permission.
(Id.) The lender may not, however, require immediate
payment in full if such action is prohibited by federal law.
(Id.) If the lender chooses to exercise paragraph 26
to require immediate payment in full it must give Plaintiff
notice of acceleration. (Id.)
28 concerns the rights of the lender if Plaintiff breaches
her duty to pay the full amount of each regularly scheduled
payment or any of the promises in the Deed of Trust.
(Id. at 43.) If there is a breach, the lender may
exercise the power of sale, take action to sell the property,
and invoke other remedies as may be permitted under the law.
(Id.) The lender is not required to give Plaintiff
notice of a breach of duty. (Id.)
Notice of Default, Wells Fargo signed a “declaration of
compliance” confirming Plaintiff was contacted to
assess her financial situation and explore options for
Plaintiff to avoid foreclosure. (Id. at 51.)
originally filed this action in Alameda County Superior Court
on July 31, 2017. (Dkt. No. 1 at 7.) Wells Fargo filed a
notice of removal to federal court on August 31, 2017.
(Id. at 5.) The notice of removal states in part
that “[Wells Fargo] is authorized to represent
defendant Northwest Trustee Services, Inc.” who
“joins in and consents to this removal.”
(Id. ¶ 4.) Ms. Tara Mohseni, Well Fargo's
attorney of record, signed the notice of removal.
(Id. at 5.) The parties subsequently filed the
motions at issue.
Defendants' Request for Judicial Notice
appropriate for judicial notice are those “not subject
to reasonable dispute in that it is either (1) generally
known within the territorial jurisdiction of the trial court
or (2) capable of accurate and ready determination by resort
to sources whose accuracy cannot reasonably be
questioned.” Fed.R.Evid. 201(b). Courts may take
judicial notice of publicly available official information
filed with a governmental agency or posted on a governmental
website. See Dudum v. Arntz, 640 F.3d 1098, 1102
& n. 6 (9th Cir. 2011) (taking judicial notice of
official information posted on a governmental website);
Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d
992, 998-99 (9th Cir.2010) (taking judicial notice of
official information posted on a governmental website, the
accuracy of which was undisputed).
Fargo requests that the Court take judicial notice of four
documents: (1) Wells Fargo's articles of incorporation;
(2) a document entitled “National Banks Active as of
8/31/2017” published on the U.S. Department of Treasury
website; (3) a business search of the Secretary of State of
California regarding Northwest's registration as a
foreign corporation in California; and (4) the statement of
information for Northwest filed in the office of the
Secretary of State of California. Wells Fargo's request
for judicial notice is granted as the accuracy of Wells
Fargo's articles of incorporation and Northwest's
statement of information are not in question. Furthermore,
the document reflecting active national banks and
Northwest's registration with the State of California
consists of information posted on a governmental website
whose accuracy is not disputed.
Motion to Remand
moves to remand to Alameda County Superior Court. She argues
diversity jurisdiction fails because: (1) Defendants and
Plaintiff are citizens of California, (2) the amount in
controversy is not greater than $75, 000, and (3) consent was
not obtained from all defendants to remove the action.
district court must remand a removed action “if at any
time before final judgment it appears that the district court
lacks subject matter jurisdiction.” 28 U.S.C. §
1447(c). Courts must “strictly construe the removal
statute against removal jurisdiction.” Gaus v.
Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992).
“Th[is] ‘strong presumption' against removal
jurisdiction means that the defendant always has the burden
of establishing that removal is proper.” Id.
federal courts, subject matter jurisdiction may arise from
either “federal question jurisdiction” or
“diversity of citizenship” when the amount in
controversy exceeds $75, 000. See Caterpillar Inc. v.
Williams, 482 U.S. 386, 392 (1987). Defendants removed
on the grounds of diversity jurisdiction. To properly allege
diversity jurisdiction, a plaintiff must claim damages in
excess of $75, 000. 28 U.S.C. § 1332(a). In addition,
“diversity jurisdiction requires complete diversity
between the parties-each defendant must be a citizen of a