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Asare-Antwi v. Wells Fargo, N.A.

United States District Court, C.D. California

July 15, 2019

Kwadwo Hwenso Asare-Antwi
v.
Wells Fargo, N.A., et al.

          Present:The James V. Selna, U.S. District Court Judge.

          CIVIL MINUTES - GENERAL

         Honorable Proceedings: [IN CHAMBERS] Order Regarding Motion to Remand.

         The Court, having been informed by the parties in this action that they submit on the Court's tentative ruling previously issued, hereby rules in accordance with the tentative ruling as follows:

         Plaintiff Kwadwo Hwenso Asare-Antwi (“Plaintiff”) filed a motion to remand this case to state court. (Mot., Dkt. No. 13.) Defendant Wells Fargo Bank, N.A., (“Wells Fargo”) opposed the motion. (Opp'n, Dkt. No. 22). Plaintiff filed a reply. (Reply, Dkt. No. 24.)

         For the following reasons, the Court denies the motion to remand.

         I. Background

         Plaintiff filed this action in the Superior Court of the State of California in Orange County on April 17, 2019 against defendants Wells Fargo, Quality Loan Service Corporation (“Quality”), and Clear Recon Corp. (“Clear Recon”). (Complaint, Dkt. No. 1-1.) Plaintiff brought claims for (1) declaratory judgment; (2) intentional misrepresentation; (3) cancellation of instruments; (4) violation of Civil Code § 2924; (5) slander of title; (6) breach of contract/estoppel; and (7) violation of Bus. & Prof. Code § 17200 et. seq. (Id.)

         Plaintiff alleges the following. Wells Fargo is the servicer on three of Plaintiff's loans for properties located in Orange County and Riverside County. (FAC, Dkt. No. 1-2, Ex. B ¶ 2.) Two of these loans for properties located at 12668 Chapman Ave. Unit 2305 (“Unit 2305”) and Unit 2405 (“Unit 2405”) in Garden Grove, CA were originated by World Savings, FSB, and Wachovia Mortgage, FSB. (Id. ¶ 3.) Wells Fargo filed Notices of Default along with a declaration falsely alleging that it had attempted to explore alternatives with Plaintiff prior to filing the notice, but was unable to reach Plaintiff. (Id. ¶ 5.) The Notices of Default allege that Wells Fargo is the beneficiary, and Plaintiff disputes that it is. (Id.) Wells Fargo also refused Plaintiff's appeal of a denial of a loan modification and refused to revise incorrect income amounts or explain its errors in the modification evaluation. (Id. ¶ 6.)

         On August 14, 2018, Wells Fargo had its agent, Clear Recon, record a Notice of Default, but the deed of trust identifies the trustee as Golden West. (Id. ¶ 42.) On the same date, Wells Fargo had its agent, Quality, record a Notice of Default. (Id. ¶ 70.) On April 15, 2019, Plaintiff informed Quality that the Notice of Trustee Sale applicable to one of the properties was defective because it identified the address, but did not identify a unit number, and thus did not identify the property as required under Civ. Code § 2924f(b)(1). (Id. ¶ 75.)

         The Notices of Default on the respective properties are defective because Plaintiff disputes that Wells Fargo is the beneficiary. (Id. ¶ 109.) As a result of the defective Notices of Default, Quality and Clear Recon are threatening to take title to Plaintiff's property for payment to Wells Fargo, who Plaintiff says is without authority to foreclose on Plaintiff. (Id. ¶ 111.) Clear Recon and Quality have a legal duty to all parties to the deed of trust-including Plaintiff-to exercise good judgment, but instead have failed to establish that Wells Fargo has the authority to exercise the power of sale or substitute either entity as trustee. (Id. ¶¶ 118, 155.) By alleging that Wells Fargo is the beneficiary, in their Notices of Default and Substitutions of Trustee, Quality and Clear Recon engage in a deceptive and unfair business practice. (Id. ¶149.) Clear Recon, as trustee, along with Wells Fargo, had a duty to ensure that Plaintiff had been contacted to explore alternatives to foreclosure before recording their Notices of Default. (Id. ¶ 170.) Likewise, they violated Cal. Civ. Code § 2924.17 by failing to rely upon competent and reliable evidence before recording instruments in the land records. (Id. ¶ 173.)

         On May 2, 2019, Plaintiff's counsel filed a verified First Amended Complaint (“FAC”) correcting various errors from the first complaint, including an allegation regarding Plaintiff's primary U.S. residence address. (FAC, Dkt. No. 1-2, Ex. B ¶ 9.) In addition, Plaintiff added causes of action for violation of the Homeowner Bill of Rights (“HBOR”) and the breach of the covenant of good faith and fair dealing. (Id. at 1.)

         A. Citizenship of Parties

         Plaintiff indicates that he is “an individual who resides in England, with his United States primary residence in Orange County, ” identified as Unit[] 2305, ” and that “[t]hese are Plaintiff's primary U.S. residence and an investment property which produces rental income and both are part of Plaintiff's retirement assets.” (Id. ¶ 16.)

         With respect to each of the defendants, Plaintiff alleges that (1) Wells Fargo is headquartered in San Francisco, CA; (2) Quality is a California corporation; and (3) Clear Recon ...


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