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Nsilu v. Wells Fargo Bank, N.A.

United States District Court, C.D. California

July 10, 2019

PIERRE W. NSILU, Plaintiff,
WELLS FARGO BANK, N.A., et al., Defendants. v.




         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]


         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.)


         “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).


         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 ...

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