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Kashef v. Wells Fargo Bank N.A.

United States District Court, N.D. California

May 2, 2018

WELLS FARGO BANK, N.A., et al., Defendants.



         Before 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.


         Truman 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).

         The 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.

         Wells 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.[1]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.


         In 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.

         Kashef 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.

         Three 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.

         At the 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 No. 49.

         The Court now considers these motions.


         “To 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).

         IV. ...

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