United States District Court, N.D. California
GLORIA J. HUNTER, Plaintiff,
v.
WELLS FARGO BANK, Defendant.
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
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