Hunter v. Wells Fargo Bank

          ORDER RE: MOTION TO DISMISS FIRST AMENDED COMPLAINT RE: DKT. NO. 34

          JACQUELINE SCOTT CORLEY UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Gloria Hunter representing herself brings this civil action regarding loans she obtained from Defendant Wells Fargo between 1998 and 2015. The Court previously dismissed Plaintiff's complaint and granted Plaintiff leave to amend. Following amendment, Wells Fargo has moved to dismiss Plaintiff's First Amended Complaint under Federal Rules of Civil Procedure 9(b) and 12(b)(6) for failure to state a claim and as barred by the statute of limitations.^[1] (Dkt. No. 34.) Having considered the parties' briefs, the Court concludes that oral argument is unnecessary, see Civ. L.R. 7-1(b), VACATES the December 19, 2019 hearing, and GRANTS the motion to dismiss.

         FACTUAL BACKGROUND

         A. First Amended Complaint Allegations

         The factual allegations underlying Plaintiff's claims are somewhat difficult to discern. Plaintiff alleges that she “has suffered an overpayment of loans which she has diligently been paying for the better part of four decades.” (Dkt. No. 33, First Amended Complaint (FAC) at ¶ 6.) Although she “was free and clear of any debt she owed to Wells Fargo in 1998” she was “made to refinance loans for debt that she had already paid.” (Id.) “The result is that from August 24, 1998 until this very day, Ms. Hunter has made payments that she does not owe.” (Id.) She filed this action against “Wells Fargo Bank for fraudulently forcing her to unjustly enrich them through her diligent monthly payments.” (Id.)

         Plaintiff takes issue with Wells Fargo's conduct with respect to four different loans. First, a $60, 000 loan in 1998 when Wells Fargo took over her 1981 loan from GMAC. (Id. at ¶ 7.) According to Plaintiff, she was free and clear of her GMAC loan when Wells Fargo took it over, but she was nonetheless given a $60, 000 loan and although “Defendant has explained that some of that loan was used to pay off credit card debts, [it] cannot account for approximately $40, 000 of that loan.” (Id.) Second, a loan Plaintiff took out in 2004. (Id. at ¶ 8.) Third, Plaintiff refinanced the 2004 loan in 2005 with some of the 2005 loan going to pay off the 2004 loan and the remainder going “towards a lien that had been on her home at the time she purchased it, ” although Plaintiff believes she had paid off that lien in 1998. (Id.) Fourth, in 2015, Wells Fargo refinanced the 2005 loan, but this was improper because the 2005 loan should have been closed out through a 2012 reconveyance. (Id. at ¶¶ 9-10.) Although Plaintiff was issued a full reconveyance of her home in December 2016, Wells Fargo “is still collecting on it.” (Id. at ¶ 12.)

         B. Procedural Background

         On March 25, 2019, Plaintiff filed this civil action against Defendant Wells Fargo. (Dkt. No. 1.^[2]) Defendant responded by filing a motion to dismiss. (Dkt. No. 9.) At the hearing on the motion to dismiss, Wells Fargo agreed to provide Plaintiff with an accounting of her loans and discuss any concerns she had regarding her loans. (Dkt. No. 24.) Wells Fargo thereafter provided Plaintiff with an accounting of her loans and copies of her financial records and the parties attempted to informally resolve the matter. (Dkt. No. 28.) At two subsequent status conferences, the parties updated the Court regarding their efforts. (Dkt. Nos. 29 & 32.) After the parties advised the Court that they had been unable to resolve the matter, the Court directed Plaintiff to file an amended complaint which she has since done. (Dkt. No. 33.) Wells Fargo thereafter moved to dismiss again. (Dkt. No. 33.) Plaintiff filed an untimely one-page opposition to the motion to dismiss. (Dkt. No. 36.)

         DISCUSSION

         Plaintiff pleads three claims for relief: (1) “improper belated refinance of 2005 loan, ” (2) “improper collection of 1981 loan, ” and (3) “loan flipping scheme 1998-present.” (Dkt. No. 33, FAC at 5-6.) Wells Fargo moves to dismiss these claims as failing to state a claim upon which relief could be granted under Federal Rules of Civil Procedure 9(b) and 12(b)(6) and as barred by the statute of limitations.

         A. Plaintiff's First Claim for Misrepresentation/Fraud

         Plaintiff's first claim for relief is entitled “improper belated refinance of 2005 loan” and alleges that Wells Fargo told her she “had” to refinance the loan in 2015, that she did so based on “defendant's representation that this is something she was required to do, ” and “coercively convinced” her that she needed to refinance.” (FAC at ¶¶ 16-19.) Given these allegations, Plaintiff appears to be arguing that Wells Fargo misrepresented the status of her loan and fraudulently convinced her to refinance.

         Fraud requires “(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or scienter); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” Small v. Fritz Companies Inc., 30 Cal.4th 167, 173 (2003). The elements for intentional misrepresentation are (1) a misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance, (4) actual and justifiable reliance, and (5) resulting damage. Lazar v. Superior Court, 12 Cal.4th 631, 638 (1996). Federal Rule of Civil Procedure 9(b) requires that “[i]n averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.” “Each element of a fraud count must be pleaded with particularity so as to apprise the defendant of the specific grounds for the charge and enable the court to determine whether there is any basis for the cause of action.” Chapman v. Skype Inc., 220 Cal.App.4th 217, 231 (2013).

         Plaintiff's conclusory allegations fail to satisfy Rule 9(b)'s strict pleading requirements. Plaintiff must allege the “who, what, when, where, and how” of the fraud. Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003). Here, Plaintiff just alleges that Defendant told her she had to refinance, but does not specify who at Wells Fargo told her she had to do so, when they told her this, or where they told her she had to so. While Plaintiff's opposition brief states that it was someone from Wells Fargo who called her on the phone and identified themselves “as Wells Fargo, ” these facts are not alleged in FAC and Plaintiff does not allege the when, how, or why of the fraud. (Dkt. No. 36 at 2.) In particular, although Plaintiff alleges that she was debt free so there was no reason for her to refinance, she has not alleged that there were specific ...