United States District Court, C.D. California
PIERRE W. NSILU, Plaintiff,
v.
WELLS FARGO BANK, N.A., et al., Defendants. v.
ORDER GRANTING DEFENDANT WELLS FARGO BANK, N.A.'S
MOTION TO DISMISS THE FIRST AMENDED COMPLAINT [14]
OTIS
D. WRIGHT, II UNITED STATES DISTRICT JUDGE
I.
INTRODUCTION
Presently
before the Court is Defendant Wells Fargo Bank, N.A.'s
Motion to Dismiss Plaintiff Pierre W. Nsilu's First
Amended Complaint for failure to state a claim under Federal
Rules of Civil Procedure 12(b)(6). (Mot. to Dismiss
(“Mot.”), ECF No. 14.) The instant suit
represents Plaintiff's second lawsuit against Defendant,
arising from what he alleges was the wrongful foreclosure of
his home. (See First Am. Compl. (“FAC”),
ECF No. 11.) For the following reasons, Defendant's
Motion to Dismiss is GRANTED with PREJUDICE.[1]
II.
BACKGROUND
On May
2, 2008, Plaintiff obtained a mortgage loan from Wells Fargo
Bank, N.A. with Dee Dee Tulanda, who did not join in this
suit. (See Req. for Judicial Notice
(“RJN”) Ex. A (“WF Deed of Trust”),
ECF No. 15-1.) Plaintiff secured this loan of $417, 000.00
with a first position Deed of Trust on Plaintiff's real
property at 575 East 213th Street, Carson, California, 90745
(“Property”). (see WF Deed of Trust 2,
3; FAC ¶¶ 12-13.) Defendant recorded the deed on
June 6, 2008. (WF Deed of Trust.) On May 29, 2008, Plaintiff
obtained a second loan, borrowing $199, 000.00 from Wachovia
Bank, N.A., also secured by a Deed of Trust of
Plaintiff's Property. (RJN Ex. C (“Wachovia Deed of
Trust”) 1, ECF No. 15-1.) Wachovia recorded the deed on
June 3, 2008. (Wachovia Deed of Trust.) However,
Plaintiff's FAC makes no claims regarding the second
position loan. (See generally FAC.)
On
September 1, 2010, Plaintiff defaulted on the first position
loan with Defendant, which had accrued arrears in the amount
of $206, 309.92. (RJN Ex. D (“Notice of Default”)
2, ECF No. 15-1.)
However,
the Notice of Default was not recorded until March 14, 2016.
(Notice of Default 1.) In November 2011, Plaintiff entered
into a forbearance agreement with Defendant. (FAC
¶¶ 17-18.) From this time until April 2013,
Plaintiff repeatedly attempted to modify his loan but was
unsuccessful. (Id.)
Between
2012 and 2016, the first position loan of $417, 000.00 was
assigned three separate times. (RJN Exs. E (“2011
Assignment”), F (“2013 Assignment”), G
(“2016 Assignment”), ECF No. 15-1.) First, on
December 16, 2011, Wells Fargo assigned the Deed of Trust to
Federal Home Loan Mortgage Corporation (“FHLMC”)
who recorded the loan on January 6, 2012. (2011 Assignment.)
Second, on October 7, 2013, FHLMC assigned the Deed of Trust
to Defendant, who recorded it on October 17, 2013. (2013
Assignment.) Third, on April 8, 2016, Defendant assigned the
Deed of Trust to Wilmington Savings Fund Society, FSB, d/b/a
Christiana Trust, not individually but as trustee for Pretium
Mortgage Acquisition Trust (“Wilmington”). (2016
Assignment.) The third assignment was recorded on June 6,
2016, after which Defendant retained no further interest in
the loan. (2016 Assignment.)
On
September 2, 2016, Clear Recon Corp recorded a Notice of
Trustee's Sale and set a Trustee's sale for October
11, 2016. (RJN Ex. H (“First Notice of Trustee's
Sale”), ECF No. 15-1.)
Plaintiff
filed for bankruptcy twice in 2017, first on January 23,
2017, and again on February 14, 2017. (RJN Exs. I
(“January 2017 BK Docket”) & J
(“February 2017 BK Docket”), ECF No. 15-1.) Both
bankruptcy filings were dismissed for failure to file
information. (Id.)
On
March 16, 2017, Plaintiff filed a complaint against Defendant
in the Superior Court of California, County of Los Angeles,
where he alleged: (1) violation of California Homeowner Bill
of Rights; (2) statutory Unfair Competition-California
Business and Professions Code § 17200, et seq.;
(3) breach of the covenant of good faith and fair dealing;
and (4) negligence. (“First Action”); RJN Ex. K
(“First Action Complaint”), ECF No. 15-1.)
Plaintiff then voluntarily dismissed the First Action with
prejudice on July 21, 2017. (RJN Ex. L (“First Action
Request for Dismissal”), ECF No. 15-1.)
On
September 4, 2018, Clear Recon Corp recorded a Notice of
Trustee's Sale, which set a new sale date of October 9,
2018. (RJN Ex. M (“Notice of Trustee's
Sale”), ECF No. 15-1.) However, on October 8, 2018, one
day prior to the Trustee's sale, Plaintiff filed his
third bankruptcy petition. (RJN Ex. O (“Voluntary
Bankruptcy Petition”), ECF Nos. 15-2-15-3.) In his
petition, Plaintiff did not disclose his previously filed
claim or any remaining potential claims against Defendant.
(“Voluntary Bankruptcy Petition”, Ex. O, at 17.)
(requiring that petitioner schedule “[c]laims against
third parties, whether or not you have filed a lawsuit or
made a demand for payment.”)
On
November 1, 2018, Wilmington moved for relief from the
automatic stay. (RJN Ex. P (“Notice of Motion and
Motion for Relief From the Automatic Stay”), ECF No.
15-4.) On November 29, 2018, the United States Bankruptcy
Court for the Central District of California granted
Wilmington's unopposed motion for relief. (RJN Ex. Q
(“Order Relief From Automatic Stay”), ECF No.
15-4.) On November 13, 2018, Plaintiff discharged his debt,
and on January 23, 2019, the court closed Plaintiff's
bankruptcy case. (See RJN Ex. N “Bankruptcy
Case Docket, No. 2:18-bk-21796-RK), ECF No. 15-4.)
Plaintiff
claims the Property was sold at the Trustee sale on December
18, 2019. (FAC ¶ 24.) Given this apparent typographical
error and the context presented by the record, the Court
considers December 18, 2018 as the date of the Trustee Sale,
even though further documentation of the sale was not
provided.
On
December 17, 2018, Plaintiff again brought suit against
Defendant, this time in the United States District Court,
Central District of California. (Compl., ECF No. 1.)
Plaintiff amended his Complaint on January 9, 2019, after
Defendant moved to dismiss. (See FAC; Mot. to
Dismiss, ECF No. 7.) The Court subsequently denied
Defendant's first motion to dismiss Plaintiff's
Complaint as moot. (Minute Order, ECF No. 17.) In his FAC,
Plaintiff asserts the following claims: (1) negligence; (2)
to set aside trustee sale; (3) cancel assignment of deed of
trust; (4) breach of contract; (5) violation of California
Business and Profession Code section 17200, et seq.;
(6) slander of title; and (7) quiet title. (FAC ¶¶
26-66.)
On
January 25, 2019, Defendant moved to dismiss Plaintiff's
FAC. (See generally Mot.)
III.
LEGAL STANDARD
“To
survive a motion to dismiss for failure to state a claim
under Rule 12(b)(6), a complaint generally must satisfy only
the minimal notice pleading requirements of Rule
8(a)(2).” Porter v. Jones, 319 F.3d 483, 494
(9th Cir. 2003). Rule 8(a)(2) requires “a short and
plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). For a
complaint to sufficiently state a claim, its “[f]actual
allegations must be enough to raise a right to relief above
the speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). Dismissal under a
12(b)(6) motion can be based on lack of a cognizable legal
theory or “the absence of sufficient facts alleged
under a cognizable legal theory.” Balistreri v.
Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.
1988). To overcome a 12(b)(6) motion, “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)
(internal quotation marks omitted). The plausibility standard
“asks for more than a sheer possibility that a
defendant has acted unlawfully. Where a complaint pleads
facts that are merely consistent with a defendant's
liability, it stops short of the line between possibility and
plausibility of entitlement of relief.” Id.
(citations and internal quotation marks omitted).
Although
pro se pleadings must be construed liberally, a plaintiff
must present factual allegations sufficient to state a
plausible claim for relief. See Hebbe v. Pliler, 627
F.3d 338, 342 (9th Cir. 2010). A court “may not supply
essential elements of the claim that were not initially
[pleaded].” Pena v. Gardner, 976 F.2d 469, 471
(9th Cir. 1992). Moreover, a liberal reading cannot cure the
absence of such facts. Ivey v. Bd. of Regents of Univ. of
Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
IV.
DISCUSSION
Defendant
argues that Plaintiff's claims are barred by res judicata
and judicial estoppel. (See generally Mot.)
Additionally, Defendant requests the Court take Judicial
Notice of several documents. (See RJN.) Accordingly,
the Court first addresses whether judicial notice is
appropriate before turning to the merits of Defendant's
Motion.
A.
Request for Judicial Notice
Although
a court is generally limited to the pleadings in ruling on a
Rule 12(b)(6) motion, it may consider documents incorporated
by reference in the complaint or properly subject to judicial
notice without converting the motion into one for summary
judgment. Lee, 250 F.3d at 688-89. Federal Rule of
Evidence 201 provides: “[t]he court may judicially
notice a fact that is not subject to reasonable dispute
because it: (1) is generally known within the trial
court's territorial jurisdiction; or (2) can be
accurately and readily determined from sources whose accuracy
cannot reasonably be questioned.” Fed.R.Evid. 201(b).
Courts may take judicial notice of government documents and
public records. See Peruta v. Cty. of San Diego, 678
F.Supp.2d 1046, 1054 n.8 (S.D. Cal. 2010) (stating that
courts may properly take judicial notice of undisputed
documents appearing on governmental websites); see also
Miller v. Cal. Reconveyance Co., No. 10-cv-421-IEG
(CAB), 2010 WL 2889103, at *3 n.1 (S.D. Cal. July 22, 2010)
(“The [c]ourt will take judicial notice of the P &
A Agreement between JPMorgan and the FDIC . . . because this
agreement is a matter of public record whose accuracy cannot
reasonably be questioned.”).
In
support of its Motion to Dismiss, Defendant requests that the
Court take judicial notice of the following documents,
pursuant to Federal Rule of Evidence 201:
• (A) Deed of Trust in favor of Wells Fargo Bank, N.A.,
dated May 2, 2008, and recorded on June 3, 2008, in the Los
Angeles County Recorder's Office as Document No.
20080974805;
• (B) Agreement of Merger of Wells Fargo Home Mortgage,
Inc. into Wells Fargo Bank National Association, filed with
California Secretary of State on May 5, 2004;
• (C) Deed of Trust in favor of Wachovia Bank, National
Association, dated May 29, 2008, and recorded on June 3,
2008, in the Los Angeles County Recorder's ...