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Brown v. Wells Fargo Bank, N.A.

United States District Court, E.D. California

July 24, 2019

SUZANNE BROWN, Plaintiff,
v.
WELLS FARGO BANK, N.A., et al. Defendants.

          FINDINGS AND RECOMMENDATIONS AND ORDER ON DEFENDANT'S MOTION TO DISMISS (ECF NO. 4.)

          KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE.

         On January 7, 2019, Plaintiff filed a complaint in California state court alleging nine claims against “Wells Fargo Home Mortgage” and 100 Doe Defendants. (ECF No. 1-2.) Wells Fargo removed to this Court, and filed the instant motion to dismiss.[1] (ECF Nos. 1, 4.)

         For the reasons discussed below, the Court RECOMMENDS granting the motion, as:

(I) The HBOR claim is merely a recitation of the statute, requiring amendment;
(II) The fraud, concealment, and UCL claims concerning Defendant's request for relief from the bankruptcy stay lack the requisite specificity and are self-defeating on the reliance element;
(III) The implied-covenant claim fails on multiple points of law;
(IV) The “injunction” and “unjust enrichment” causes of action are remedies, not claims, and Plaintiff has no claim to restitution;
(V) The quiet title claim fails for lack of tender; and
(VI) The accounting claim fails for lack of a fiduciary duty and lack of complexity.

         Background[2]

         On June 28, 2007, Plaintiff borrowed $492, 000 from Defendant, [3] secured by a deed of trust recorded against the “Property” at 4608 Meldon Ave. in Oakland, California. In July of 2014, Plaintiff failed to pay her monthly installment on the loan. On October 30, 2017, a notice of default was recorded in the Alameda County Recorder's Office.

         On August 24, 2018, Plaintiff executed a grant deed, allotting a 10% interest in the Property to her daughter, Sierra Muniz. Three days later, Muniz filed for bankruptcy in the Northern District of California, under case number 18-41993. On September 12, the bankruptcy court filed an “Order and Notice of Dismissal for Failure to Comply.” On September 21, Defendant filed a motion in the case 41993 bankruptcy action to lift the stay on the Property, arguing the grant deed and bankruptcy was “part of a scheme” to delay the sale of the Property; this motion was served on Muniz and Plaintiff. On October 10, 2018, the bankruptcy court held a hearing on Defendant's motion, and lifted the stay on the Property. The case 41993 bankruptcy was closed on October 18. That same day, Muniz filed a second bankruptcy petition, which was closed on December 4. On October 29, 2018, Plaintiff filed for bankruptcy (No. 18-42533).

         On January 2, 2019, Plaintiff called Defendant to inquire about a loan modification, but learned the Property was to go to a Trustee Sale the following day. On January 3, 2019, Defendant purchased the Property at the trustee sale. Throughout these proceedings, Defendant never appointed a “single point of contact” for Plaintiff after she requested a foreclosure prevention alternative.

         Procedural Posture

         In January of 2019, Plaintiff filed a complaint in California state court (Solano County), alleging the following claims under California law: Violation of the Homeowner Bill of Rights; Fraud; Concealment; Breach of Implied Covenant of Good Faith and Fair Dealing; Unjust Enrichment; Violations of Cal. Bus. Code § 17200; Quiet Title; Injunctive Relief; and Accounting. Defendant (a citizen of South Dakota) removed to the Eastern District of California, and thereafter filed the instant motion to dismiss. Plaintiff opposed, Defendant replied, and Plaintiff filed a surreply.[4]

         Legal Standard

         Under the “notice pleading” standard of the Federal Rules of Civil Procedure, a plaintiff's complaint must provide a “short and plain statement” of plaintiff's claims showing entitlement to relief. Rule 8(a)(2)[5]; see also Paulsen v. CNF, Inc., 559 F.3d 1061, 1071 (9th Cir. 2009).

         Under Rule 12(b)(6), a claim may be dismissed because of the plaintiff's failure to state a claim upon which relief can be granted. This generally encompasses two scenarios: where the complaint lacks a cognizable legal theory, or where it lacks “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); Mollett v. Netflix, Inc., 795 F.3d 1062, 1065 (9th Cir. 2015). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Somers v. Apple, Inc., 729 F.3d 953, 959 (9th Cir. 2013) (quoting Iqbal, 556 U.S. at 678). “Plausibility” means “more than a sheer possibility, ” but less than a probability, and facts that are “merely consistent” with liability fall short of “plausibility.” Id. This plausibility inquiry is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.

         In reviewing a complaint under Rule 12(b)(6), a court “may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice.” Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007) (citation and quotation marks omitted). Further, all well-pleaded allegations of material fact are to be taken as true and construed in a light most favorable to the non-moving party. Faulkner v. ADT Sec. Servs., 706 F.3d 1017, 1019 (9th Cir. 2013). A court is not, however, “required to accept as true conclusory allegations that are contradicted by documents referred to in the complaint, and [courts do] not necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations.” Paulsen, 559 F.3d at 1071.

         The Ninth Circuit has distilled the following principles for Rule 12(b)(6) motions:

First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.
Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.

Levitt v. Yelp! Inc., 765 F.3d 1123, 1135 (9th Cir. 2014). If a motion to dismiss is granted, the district court should grant leave to amend-even if no request to amend the pleading was made- unless amendment “would be futile or the plaintiff has failed to cure deficiencies despite repeated opportunities.” Garmon v. County of L.A., 828 F.3d 837, 842 (9th Cir. 2016). Courts may not incorporate allegations raised in opposition papers into a complaint, but may consider them in deciding whether to grant leave to amend. See, e.g., Broam v. Bogan, 320 F.3d 1023, 1026 n.2 (9th Cir. 2003).

         The court must construe pro se pleadings liberally to determine if it states a claim and, prior to dismissal, tell a plaintiff of deficiencies in the complaint and give plaintiff an opportunity to cure them if it appears at all possible the plaintiff can correct the defects. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc); see also Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (stating that courts continue to construe pro se filings liberally even when evaluating them under the standard announced in Iqbal).

         Parties' Arguments

          Defendant argues each and every claim fails to allege a factual or legal basis; Plaintiff contends Defendant's construction of Rule 8 ...


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