United States District Court, N.D. California
ORDER GRANTING MOTIONS TO DISMISS, GRANTING TRUMAN
CAPITAL'S MOTION FOR BOND, AND DENYING KASHEF'S
MOTION FOR BOND RE: ECF NOS. 31, 33, 35, 38
TIGAR UNITED STATES DISTRICT JUDGE
the Court are (1) a motion to dismiss filed by Defendants
U.S. Bank, N.A. and Truman Capital Advisors, LP
(collectively, “Truman Capital”), ECF No. 31, (2)
a motion to dismiss filed by Defendant Wells Fargo Bank,
N.A., ECF No. 38, (3) a motion for disbursement of bond funds
filed by Truman Capital, ECF No. 33, and (4) a motion for
release of bond filed by Plaintiff Mahsti Kashef, ECF No. 35.
REQUEST FOR JUDICIAL NOTICE
Capital requests that the Court take judicial notice of
documents “which are on file in the public records in
this case, as well as on file in the United States Bankruptcy
Court.” ECF No. 31-1. With the exception of one
document, these documents are all available publicly, from
the Contra Costa County Record's Office, on PACER, from
the U.S. Department of the Treasury, or from the Federal
Deposit Insurance Corporation. The Court takes judicial
notice of these public records. Lee v. City of Los
Angeles, 250 F.3d 668, 689 (9th Cir. 2001)
(“[U]nder Fed.R.Evid. 201, a court may take judicial
notice of matters of public record.”) (internal
quotations and citation omitted).
Court denies the request for judicial notice as to the March
2010 modification agreement. There is no indication the
document is public, and it is not referenced in the
complaint. ECF No. 31-1 at 68.
Fargo also requests that the Court take judicial notice of
similar documents in the public record from the Department of
the Treasury or from Contra Costa County. ECF No.
39.The Court grants Wells Fargo's request
as to these documents. The Court also grants Wells
Fargo's request to judicially notice the mortgage loan
document itself, which is referenced in the complaint.
Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006)
(providing for judicial notice for documents referenced in
the complaint). Finally, Wells Fargo requests that the Court
take judicial notice of the March 2010 loan modification, but
for the reasons stated above, the Court denies that request.
ECF No. 39 at 54.
2005, Kashef took out a $735, 000 mortgage on her home at 90
Lomitas Road, Danville, CA 94526. ECF No. 1
(“Compl.”) ¶¶ 7, 15. On February 3,
2017, Barrett Daffin Frappier Treder & Weiss, LLP, acting
as Substitute Trustee, recorded a Notice of Default on Kashef
s loan. Id. ¶ 16. On May 18, 2017, Barrett
Daffin recorded a notice of sale on the property.
Id. ¶ 17. The current creditor as reflected in
the title records is Truman Capital. Id ¶ 24.
challenges Barrett Daffin's right to foreclose. She
includes with her complaint a chain of title analysis
prepared by an entity called Mortgage Compliance, LLC.
Id The analysis concludes that Kashef s loan was
improperly sold by her original lender, World Savings Bank,
into a pool called the World Savings Bank REMIC Series 20,
which never actually acquired the loan; the corporate
assignment was invalid; there are no documents showing Truman
Capital is in fact the current creditor; and there is no
known beneficiary. Id Her complaint makes claims for
(1) wrongful foreclosure under California law, (2) violations
of the Fair Debt Collection Practices Act, (3) violations of
the Truth in Lending Act, (4) slander of title, (5)
intentional infliction of emotional distress, and (6)
declaratory relief. Id ¶¶ 19-67.
days after filing her complaint, Kashef moved for a temporary
restraining order. ECF Nos. 1, 4. The Court granted the
temporary restraining order preventing the foreclosure of
Kashef's home, ordered the Defendants to show cause why
they should not be restrained from selling Kashef's home,
and ordered Kashef to file a $3, 000 bond. ECF No. 11.
show cause hearing, the Court issued an order denying the
preliminary injunction and dissolving the temporary
restraining order, finding that Kashef had not demonstrated a
likelihood of prevailing on the merits or even the existence
of serious questions going to the merits. ECF Nos. 27, 28.
Truman Capital then filed a motion to dismiss Kashef's
complaint for failure to state a claim, ECF No. 31, and a
motion for disbursement of the bond funds, ECF No. 33. Kashef
filed a motion for release of the bond. ECF No. 35. Truman
Capital opposed the release of the bond to Kashef, and Kashef
opposed the release of the bond to Truman Capital. ECF Nos.
36, 40. Wells Fargo filed a motion to dismiss. ECF No. 38.
Kashef opposed both Defendants' motions to dismiss. ECF
Court now considers these motions.
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to 'state a
claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“Dismissal under Rule 12(b)(6) is appropriate . . .
where the complaint 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). For purposes of the motion to
dismiss, “all allegations of material fact are taken as
true and construed in the light most favorable to the
nonmoving party, ” here Kashef. Cahill v. Liberty
Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996).
“While a complaint . . . does not need detailed factual
allegations, [it] requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of
action will not do.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). In other words, a
pleading must allege “enough facts to state a claim to
relief that is plausible on its face.” Id. at
570. Pro se pleadings are liberally construed.
Christensen v. C.I.R., 786 F.2d 1382, 1384- 85 (9th
Cir. 1986); Bretz v. Kelman, 773 F.2d 1026, 1027 n.1
(9th Cir. 1985) (en banc).