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Fontaine v. Bank of America N.A.

United States District Court, S.D. California

July 9, 2019

JULIE ELICE FONTAINE, Plaintiff,
v.
BANK OF AMERICA, N.A.; and THE BANK OF NEW YORK MELLON, formerly known as The Bank of New York, as trustee, Defendants.

          ORDER GRANTING REQUEST FOR JUDICIAL NOTICE AND GRANTING DEFENDANTS' MOTION TO DISMISS [ECF NO. 3, 4]

          HONORABLE BARRY TED MOSKOWITZ UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Plaintiff Julie Elice Fontaine, proceeding pro se, filed a Complaint against Defendants Bank of America (“BOA”) and the Bank of New York (“BONY”) alleging violations of California Civil Code § 1572 (actual fraud), violations of California Civil Code §§ 2924(a) and 2934(a) (wrongful foreclosure), unjust enrichment, slander of title, and intentional infliction of emotional distress. (ECF No. 1 “Compl.”). Plaintiff seeks declaratory judgment as well as compensatory, special, punitive, and general damages. (Compl. ¶ 10).

         Pending before the Court is Defendants' Motion to Dismiss the Complaint for failure to state a claim upon which relief may be granted. (ECF No. 3). For reasons set forth below, the Court holds that Plaintiff's claims are barred by res judicata. The Complaint is dismissed with prejudice.

         II. REQUEST FOR JUDICIAL NOTICE

         Defendants request judicial notice of the following documents: (1) The Assignment of Deed of Trust recorded on August 19, 2011; (2) The Substitution of Trustee recorded on October 17, 2011; (3) the Notice of Default recorded on October 17, 2011; (4) Substitution of Trustee recorded on April 9, 2014; (5) the Notice of Rescission of Notice of Default recorded on April 30, 2018; (6) the Notice of Default recorded on April 30, 2018; (7) the UCC Financing Statement recorded on February 24, 2012; (8) the Revocation of Deed recorded on June 27, 2012; (9) the Complaint filed on October 23, 2013 in United States District Court, District of Columbia, Case No. 13-cv-1638; (10) the Memorandum opinion filed in the District of Columbia case; (11) the Order filed on May 16, 2014 in the United States District Court, District of Columbia case; (12) the Complaint filed on August 20, 2014 in the United States District Court, Southern District of California, Case No. 14-cv-1944; (13) the Order Granting Motion to Dismiss filed on January 7, 2015 in United States District Court, Southern District of California, Case No. 14-cv-1944; (14) The First Amended Complaint filed on June 25, 2015 in United States District Court, Southern District of California, Case No. 14-cv-1944; (15) the Order Granting Motion to Dismiss First Amended Complaint filed August 21, 2015 in United States District Court; (16) the Order Denying Motion for Leave to Amend First Amended Complaint filed on November 6, 2015 in the United States District Court, Southern District of California, Case No. 14-cv-1944; (17) the Judgement filed November 7, 2015 in United States District Court, Southern District of California, Case No. 14-cv-1944; (18) the Mandate filed on September 8, 2017 in United States Court of Appeals, Ninth Circuit, Case No. 15-56948; (19) the Complaint filed on December 1, 2017 in United States District Court, Southern District of California, Case No. 17-cv-24-24; (20) The Order Granting Defendants' Motion to Dismiss filed on March 28, 2018 in United States District Court, Southern District of California, Case No. 17-cv-2424; (21) the Judgment filed on March 28, 2018 in the United States District Court, Southern District of California, Case No. 17-cv-2424. (ECF No. 4).

         The Court GRANTS Defendants' Request for Judicial Notice.

         III. BACKGROUND

         A. Facts Alleged in Plaintiff's Complaint

         Plaintiff alleges the following facts in the instant Complaint. Plaintiff owns real property at 909 Glendora Drive, Oceanside, CA 92057 (“the Property”) that is the subject of this controversy. (Compl. ¶¶ 5, 7). In 2005, Plaintiff obtained a $517, 500 mortgage loan from First Magnus Financial Corporation. (Compl., Exh. 1). The Deed of Trust is notarized and bears what appears to be Plaintiff's signature. (Id. at 15).

         On October 17, 2011, BONY substituted ReconTrust as the trustee through a recorded Substitution of Trustee. (Compl. ¶ 12; RJN Exh. 2). ReconTrust filed a Notice of Default. (Compl. ¶ 13; RJN Exh. 3).

         In April 2012, Plaintiff received a letter identifying BONY as the loan owner and BOA as the servicer. (Compl. ¶ 14). The letter included an “unendorsed copy of the Note with a stamp from Chicago Title certifying it as a true and correct copy of the original.” (Id.)

         In May 2012, Plaintiff received another letter from BOA that included an endorsement from Countrywide Bank, N.A. to Countrywide Home Loans; an endorsement from Countrywide Home Loands, Inc. “to a payee whose name was left blank”; and “a separate piece of paper with an endorsement stamp from First Magnus to Countrywide Bank, N.A.” that is “undated, without reference to the subject loan, and is not attached to the note.” (Id.)

         On November 12, 2012, ReconTrust filed a Notice of Trustee Sale; ReconTrust then filed additional Notices of Trustee Sale on June 7, 2012, July 18, ...


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