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Greene v. Wells Fargo Bank, N.A.

United States District Court, N.D. California

July 17, 2019

JOHN BATIESTE GREENE, JR., Plaintiff,
v.
WELLS FARGO BANK, N.A., et al., Defendants.

          ORDER RE: DEFENDANTS' MOTION TO DISMISS THE SECOND AMENDED COMPLAINT RE: DKT. NO. 44

         John Batieste Greene, Jr. (“Plaintiff”) sued Wells Fargo Bank, N.A. (“Wells Fargo”) and Affinia Default Services, LLC (“Affinia”) (together, “Defendants”) in the Superior Court of the State of California for the County of Contra Costa, alleging violations of California state law arising out of foreclosure proceedings.[1] (Dkt. Nos. 1 & 41 at ¶ 1.)[2] Defendant Wells Fargo timely removed the action to this Court based on diversity jurisdiction pursuant to 28 U.S.C. § 1332, and federal question jurisdiction under 28 U.S.C. §§ 1331, 1441(b). (Dkt. No. 1.) Plaintiff alleges that Defendants violated the California Homeowner Bill of Rights and California's Unfair Competition Law when they recorded a Notice of Trustee's Sale on his house while he was undergoing a loan modification review. (Dkt. No. 41.) Defendants' motion to dismiss the second amended complaint is now pending before the Court. (Dkt. No. 44.) At oral argument, the parties agreed that Wells Fargo is no longer the loan servicer and as such, has no control over the subject property. After careful consideration of the parties' briefing and oral argument, the Court GRANTS Defendants' motion to dismiss without leave to amend.

         BACKGROUND

         I. Complaint Allegations

         The gravamen of Plaintiff's complaint is that Defendants improperly initiated foreclosure proceedings while “Plaintiff was undergoing loan modification review.” (Dkt. No. 41 at ¶ 1.) Plaintiff has at all times owned the subject property located at 1795 Meadows Avenue, Pittsburg, CA 94565.[3] (Id. at ¶ 3.) In November 2005, Plaintiff obtained a loan of $599, 000 from World Savings Bank, FSB, secured by a deed of trust. (Dkt. No. 45-1, Ex. 1.) Effective December 31, 2007, World Savings Bank, FSB, changed its name to Wachovia Mortgage, FSB. (Id., Ex. 2.) The loan was assigned to Wells Fargo in 2009 following a corporate merger. (Dkt. No. 41 at ¶ 11; see also Dkt. No. 45-1, Exs. 1-3.)

         In 2011, Plaintiff entered into a loan modification agreement with Wells Fargo. (Dkt. No. 41 at ¶ 37.) On September 23, 2013, the trustee recorded a Notice of Default against the subject property. (Dkt. No. 45-1, Ex. 5.) In or around 2015, Plaintiff experienced financial hardship and was forced to file for bankruptcy. (Dkt. No. 41 at ¶¶ 13-14.) At some later time, Plaintiff again experienced financial hardship and was forced to file for bankruptcy a second time on July 25, 2017. (Dkt. No. 45-1, Ex. 9; see also Id. at ¶ 18.) On January 4, 2018, the bankruptcy court granted Plaintiff and Wells Fargo's Stipulation for Adequate Protection Re: Motion for Relief from Automatic Stay. (Dkt. No. 45-1, Ex. 6.) Thereafter, Plaintiff was unable to make payments under the Chapter 13 Bankruptcy Plan and Wells Fargo sent him a Notice of Default. (Id., Ex. 7.) The bankruptcy court subsequently granted Wells Fargo relief from automatic stay on August 1, 2018. (Dkt. Nos. 41 at ¶¶ 21-22 & 45-1, Ex. 8.)

         Plaintiff then completed a mortgage assistance application form, which he submitted to Wells Fargo with a number of documents in or around August 2018. (Id. at ¶¶ 59-87.) On September 20, 2018, Wells Fargo recorded a Notice of Trustee's Sale, indicating that Plaintiff was in default under the Deed and a public auction would take place on October 22, 2018 unless Plaintiff took corrective action. (Id. at ¶ 32; see also Dkt. No. 45-1, Ex. 11.)

         II. Procedural Background

         Plaintiff filed his Complaint in Contra Costa County Superior Court on October 17, 2018, seeking injunctive relief and monetary damages arising out of foreclosure proceedings. (Dkt. No. 1, Ex. A at 12.) On November 2, 2018, Wells Fargo removed the action to this Court, (Dkt. No. 1), and Affinia consented to removal, (Dkt. No. 3). The Court granted Defendants' motion to dismiss the original complaint on December 28, 2018, granting leave to amend as to Plaintiff's claims under the California Homeowner Bill of Rights and the Unfair Competition Law, and dismissing with prejudice Plaintiff's claim under the Rosenthal Fair Debt Collection Practices Act. (Dkt. No. 20.)

         Plaintiff filed the First Amended Complaint (“FAC”) on January 24, 2019, reasserting his claims under the California Homeowner Bill of Rights and the Unfair Competition Law. (Dkt. No. 22.) Defendants moved to dismiss thereafter. (Dkt. Nos. 28 & 30.) The Court granted Defendants' motion to dismiss the first amended complaint on March 25, 2019, with leave to amend. (Dkt. No. 36.)

         Plaintiff filed the Second Amended Complaint (“SAC”) on April 15, 2019, reasserting the same claims. (Dkt. No. 41.) Defendants moved to dismiss thereafter. (Dkt. Nos. 44 & 46.) The motion is fully briefed, (Dkt. Nos. 47-49), and the Court heard oral argument on June 20, 2019. At oral argument, the parties agreed that Wells Fargo is no longer the servicer on the loan and does not have control over the property.[4]

         LEGAL STANDARD

         I. Mootness

         “[A]n actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.” Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997). Thus, courts must raise issues concerning subject matter jurisdiction, which include mootness, sua sponte. Bernhardt v. Cty. of Los Angeles, 279 F.3d 862, 871 (9th Cir. 2002). Courts may look beyond the pleadings for purposes of analyzing subject matter jurisdiction. See Fed. R. Civ. P. 12(d); see also Foote v. Wells Fargo Bank, N.A., No. 15-cv-04465-EMC, 2016 WL 2851627, at *4 (May 16, 2016).

         “A case is moot when the issues presented are no longer ‘live' or the parties lack a legally cognizable interest in the outcome.” City of Erie v. Pap's A.M., 529 U.S. 277, 287 (2000). In other words, the central issue in mootness is whether circumstances that existed at the time of filing the complaint have changed and forestalled the possibility of meaningful relief. A case is thus moot if a defendant voluntarily ceases the challenged conduct in a way that makes it “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Adarand Constructors, Inc. v Slater, 528 U.S. 216, 221 ...


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