Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Turner v. The Bank of New York Mellon

United States District Court, N.D. California, San Jose Division

August 26, 2019

FAIRILLIA TURNER, Plaintiff,
v.
THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF CWALT, INC., ALTERNATIVE LOAN TRUST 2007-AL1, MORTGAGE PASS THROUGH CERTIFICATES, SERIES 2007-AL1, ALL PERSONS UNKNOWN, CLAIMING ANY LEGAL OR EQUITABLE RIGHT, TITLE, ESTATE, LIEN, OR INTEREST IN THE PROPERTY DESCRIBED IN THE COMPLAINT ADVERSE TO PLAINTIFF'S TITLE, OR ANY CLOUD ON PLAINTIFF'S TITLE THERETO, INCLUSIVE, Defendants.

          ORDER GRANTING THE BANK OF NEW YORK MELLON'S MOTION TO DISMISS WITH PREJUDICE RE: DKT. NO. 5

          Lucy H. Koh United States District Judge

         Pro se Plaintiff Fairillia Turner (“Turner”) filed suit against The Bank of New York Mellon FKA The Bank of New York, As Trustee for the Certificateholders of CWALT, Inc., Alternative Loan Trust 2007-AL1, Mortgage Pass Through Certificates, Series 2007-AL1 (“BONY”) and “all persons unknown, claiming any legal or equitable right, title, estate, lien, or interest in the property described in the complaint adverse to plaintiffs title, or any cloud on plaintiffs title thereto, inclusive.” ECF No. 1. Her suit relates to an allegedly wrongful nonjudicial foreclosure proceeding brought against her home in San Jose, California.

         Before the Court is BONY's motion to dismiss the suit pursuant to Federal Rule of Civil Procedure 12(b)(6) on the ground of claim preclusion. ECF No. 5 (“Mot. to Dismiss”). Having considered the briefing on the motion, the record in the case, and the relevant law, the Court GRANTS BONY's motion to dismiss with prejudice.

         I. BACKGROUND

         The Court has endeavored to construct the factual and procedural circumstances of this action. However, many of the relevant facts are missing from Turner's pleadings, which a court must principally rely upon at the motion to dismiss stage. See Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008).

         A. Factual Background

         In 2004, Turner purchased a home at 315 Grandpark Circle, San Jose, California (the “Property”). ECF No. 1-1 (“State Court Papers”), Complaint ¶ 8. On October 23, 2006, Turner executed a Note and Deed of Trust on the property in connection with a loan for $736, 800. ECF No. 6-1 at 2. At some point, Turner fell behind on her loan payments. As a result, on June 6, 2016, a Notice of Default and Election to Sell Under Deed of Trust was recorded against the Property. ECF No. 6-2; see also ECF No. 6-4 (“2017 Compl.”) ¶ 30 (“Plaintiff was told that Defendant put her loan in foreclosure”). A Notice of Trustee's Sale was recorded on November 14, 2016, which set the foreclosure sale for December 13, 2016. ECF No. 6-3.

         In an effort to fight the foreclosure, Turner obtained a lawyer and filed suit in Santa Clara County Superior Court on May 25, 2017 against defendants Shellpoint Mortgage Servicing (“Shellpoint”) and Does 1 through 10, ECF No. 6-4. The Court refers to this suit as the 2017 Action and the associated complaint as the 2017 Complaint. The 2017 Complaint identified Shellpoint as the servicer of Turner's loan. [1] 2017 Compl. ¶ 7. Turner alleged that Shellpoint agreed to review Turner's loan modification application, but failed to do so in good faith and instead put her loan in foreclosure. See 2017 Compl. ¶¶ 15-18. Turner further alleged that Shellpoint failed to take certain steps mandated by the California Homeowner's Bill of Rights (“HBOR”) in order to record a notice of default, see 2017 Compl. ¶¶ 46-56. Accordingly, the 2017 Complaint asserted three claims: (1) Violations of the HBOR and the UCL, 2017 Compl. ¶¶ 45-77, (2) Violation of the Covenant of Good Faith and Fair Dealing, 2017 Compl. ¶¶ 78-100, and (3) Negligence, 2017 Compl. ¶¶ 101-147. On October 24, 2017, Turner filed a request to dismiss the entire case with prejudice. ECF No. 6-5. Per Turner's request, the Santa Clara County Superior Court dismissed the case with prejudice on the same day. Id.

         B. Procedural History

         The instant action began on December 28, 2018, when Turner filed her Complaint in state court. State Court Papers, Complaint. Although she was represented by counsel during the 2017 Action, Turner brought the instant action pro se. Id. BONY subsequently removed the case to federal court on February 22, 2019. ECF No. 1. In the Complaint, Turner sues BONY and “all persons unknown, claiming any legal or equitable right, title, estate, lien, or interest in the property described in the complaint adverse to plaintiffs title, or any cloud on plaintiffs title thereto, inclusive.” State Court Papers, Complaint.

         The Complaint purports to bring eleven claims: (1) Wrongful Foreclosure, id. ¶¶ 106-117; (2) Permanent Injunctive Relief, id. ¶¶ 118-123; (3) To Void or Cancel Substitution of Trustee and Notice of Defaults, id. ¶¶ 124-26; (4) Breach of Contract, id. ¶¶ 127-134; (5) Violation of California Business and Professions Code §§ 17200 et seq., Id. ¶¶ 135-39; (6) Quiet Title, id. ¶¶ 140-46; (7) Violation of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692- 1692p, id. ¶¶ 147-151; (8) Civil Conspiracy, id. ¶¶ 152-56; (9) Mail and Wire Fraud, 18 U.S.C. §§ 1341, 1343, id. ¶¶ 157-162; (10) Bank Fraud, 18 U.S.C. §§ 1341, 1344, id. ¶¶ 163-66; (11) Violation of 18 U.S.C. §§ 1001, 1005, id. ¶¶ 167, 172.

         On March 1, 2019, BONY filed a motion to dismiss the Complaint pursuant to Rule 12(b)(6), in which it contends the instant action is barred by claim preclusion. ECF No. 5. The motion has been fully briefed, see ECF Nos. 12, 17, and is now ripe for the Court's review.

         II. JUDICIAL NOTICE

         At the outset, the Court GRANTS BONY's unopposed request for judicial notice of the following documents: (1) a Deed of Trust recorded in Santa Clara County, ECF No. 6-1; (2) a Notice of Default and Election to Sell, ECF No. 6-2; (3) a Notice of Trustee's Sale recorded in Santa Clara County, ECF No. 6-3; (4) the complaint in Turner v. Shellpoint Mortgage Servicing, No. 17CV310947, filed in Santa Clara Superior Court, ECF No. 6-4; and (5) the Request for Dismissal in Turner v. Shellpoint Mortgage Servicing, No. 17CV310947, ECF No. 6-5. A court “may take judicial notice of undisputed matters of public record.” Harris v. Cty. of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012). Such matters include, as relevant here, “documents on file in federal or state courts, ” id., and “document[s] of legal force, ” In re Davies, 565 Fed.Appx. 630, 632 (9th Cir. 2014) (taking judicial notice of an Assignment of Deed of Trust). The five documents proffered by BONY fall squarely into these categories. Judicial notice is therefore proper.

         III. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.