United States District Court, N.D. California
ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS AND
REQUESTS FOR JUDICIAL NOTICE AND DENYING PLAINTIFF'S
MOTION FOR LIS PENDENS RE: DKTS. NO. 2, 3, 17, 19,
31
SUSAN
VAN KEULEN UNITED STATES MAGISTRATE JUDGE.
I.
INTRODUCTION
Pro se
Plaintiff Cecilia Mangaoang (“Plaintiff”) brings
this action against Defendants Trinity Financial Services,
LLC (“TFS”), Newport Beach Holdings, LLC
(“NBH”), Wilmington Trust (“WT”),
Select Portfolio Servicing, Inc. (“SPS”), and
Special Default Services, Inc. (“SDS”)
(collectively, “Defendants”). Dkt. 1
(“Complaint”). Defendants have moved to dismiss
Plaintiff's claims. Dkt. 17 (“TFS & NBH
MTD”); Dkt. 19 (“WT & SPS MTD”); Dkt.
31 (“SDS MTD”); Dkt. 44 (“SDS Joinder to
TFS & NBH MTD”). Defendants also filed accompanying
Requests for Judicial Notice. Dkts. 17-1, 17-2 (“TFS
& NBH RJN”); Dkt. 19-1 (“WT & SPS
RJN”); Dkts. 32-1 - 32-7 (“SDS RJN”).
Shortly
after filing the Complaint, Plaintiff filed a motion to
record a lis pendens. Dkts. 2, 3. Defendants TFS and NBH
oppose Plaintiff's motion to record. Dkt. 11.
All
parties have consented to the jurisdiction of a magistrate
judge. Dkts. 18, 21, 29, 36. Based on the Parties'
submissions and the relevant law, the GRANTS
Defendants' motions to dismiss and
DENIES Plaintiff's motion for a lis
pendens for the reasons discussed below.[1]
II.
BACKGROUND [2]
A.
Plaintiff's Loan History
1.
First Loan
On or
about January 9, 2007, Plaintiff obtained a mortgage loan in
the principal amount of $524, 000.00 (the “First
Loan”) from Aidan West Financial Group
(“Aidan”). TFS & NBH RJN Ex. 1; WT & SPS
RJN Ex. A. Repayment of this loan was secured by a deed of
trust (“First DOT”) that encumbered real property
located at 2901 Capewood Lane, San Jose, California 95132
(“Property”). Id. On January 18, 2007,
the First DOT was recorded as instrument 19268025.
Id.; see also Complaint ¶ 80. The
instrument identified Mortgage Electronic Registration
Systems, Inc. (“MERS”) as the beneficiary (in its
capacity as nominee for Aidan), Fidelity National Title as
the trustee, and Plaintiff as the borrower and trustor. TFS
& NBH RJN Ex. 1; WT & SPS RJN Ex. A. The First DOT
contains Plaintiff's signature and is notarized.
Id. On March 20, 2009, MERS assigned the First DOT
to WT. WT & RJN Ex. C; see also Complaint ¶
149.
2.
Second Loan
On or
about January 9, 2007, Plaintiff obtained a second loan in
the amount of $131, 000.00 (the “Second Loan”)
from Aidan. TFS & NBH RJN Ex. 2; WT & SPS RJN Ex. B.
This loan was secured by a junior deed of trust
(“Second DOT”) that encumbered the Property.
Id. On January 18, 2007, the Second DOT was recorded
as instrument 19268026. Id; see also
Complaint ¶ 95. This instrument identified MERS as the
beneficiary (in its capacity as nominee for Aidan), Fidelity
National Title as the trustee, and Plaintiff as the borrower
and trustor. TFS & NBH RJN Ex. 2; WT & SPS RJN Ex. B.
The Second DOT contains Plaintiff's signature and is
notarized. Id. On or about July 21, 2015, MERS
assigned the Second DOT to NBH (“First
Assignment”). TFS & NBH RJN Ex. 3; WT & SPS RJN
Ex. D; see also Complaint ¶ ¶ 24, 185. The
First Assignment was recorded on December 17, 2015 as
instrument 23175056. TFS & NBH RJN Ex. 3; WT & SPS
RJN Ex. D.
In
early 2016, Plaintiff alleges she completed a loan
modification application for the Second Loan. Complaint
¶ 224. Plaintiff alleges that NBH never responded to the
application. Id. ¶ 225.
On or
about September 9, 2016, NBH substituted SDS as trustee of
the Second DOT. TFS & NBH RJN Ex. 5; see also
Complaint ¶ ¶ 26, 229. This substitution was
recorded as instrument 23426665. TFS & NBH RJN Ex. 5.
Also on or about September 9, 2016, a Notice of Default and
Election to Sell Under Deed of Trust (“NOD”) was
recorded as instrument 23426666. TFS & NBH RJN Ex. 6; WT
& SPS RJN Ex. E; see also Complaint ¶
¶ 27, 266. The NOD indicated that Plaintiff had been in
default since July 1, 2008 and that Plaintiff should contact
NBH, care of SDS, with questions. TFS & NBH RJN Ex. 6; WT
& SPS RJN Ex. E. The NOD was accompanied by a
“Declaration of Compliance” as required by Cal.
Civ. Code § 2923.55(c). Id. Plaintiff alleges
that her loan modification was pending at this time.
Complaint ¶ 266.
On or
about January 6, 2017, a Notice of Trustee's Sale
(“First Notice”) was recorded as instrument
19268026. TFS & NBH RJN Ex. 7. The date of the sale was
listed as February 1, 2017. Id. On or about
September 6, 2018, a second Notice of Trustee's Sale
(“Second Notice”) was recorded as instrument
24018268. TFS & NBH RJN Ex. 8; WT & SPS RJN Ex. F;
see also Complaint ¶ ¶ 28, 356. The date
of the sale was listed as October 5, 2018. TFS & NBH RJN
Ex. 8; WT & SPS RJN Ex. F.
On or
about September 12, 2018, NBH assigned the Second DOT to TFS
(“Second Assignment”), which was recorded as
instrument 24022209. TFS & NBH RJN Ex. 4; see
also Complaint ¶ ¶ 25, 323. On November 15,
2018, a trustee's deed upon sale was recorded as
instrument 24064356 and reflected that the Property was sold
to TFS via public auction on November 5, 2018. TFS & NBH
RJN Ex. 9; WT & SPS RJN Ex. G; Complaint ¶ ¶
29, 360.
3.
Plaintiff's Allegations Regarding the Loans
Plaintiff
asserts a range of allegations in her Complaint, several of
which are contradicted by judicially noticeable documents.
For example, Plaintiff alleges that she never took out any
loans. Complaint ¶ ¶ 114-15. The First and Second
Deeds, accompanied by their riders, indicate that Plaintiff
did, in fact, take out loans on the Property.[3] TFS & NBH RJN
Ex. 1, 2. Similarly, Plaintiff asserts that neither the First
nor Second Deed bear her signature. Complaint ¶ ¶
446-47. Copies of the recorded deeds, however, feature
Plaintiff's notarized signature. TFS & NBH RJN Ex. 1
at 13, Ex. 2 at 6. Plaintiff also makes a number of
unsubstantiated allegations. For example, Plaintiff
repeatedly alleges that recorded documents pertinent to this
case are invalid because, inter alia: (1) the person
signing their name as a notary was not actually a notary; (2)
the signatory[4] did not sign in the presence of a notary;
(3) the signatory did not read the document and was not aware
of its contents before it was notarized; (4) the signatory
was not personally known to the notary and never produced
identification for the notary; and (5) the log book of the
notary will show that the document was never signed or
notarized. See, e.g., Complaint ¶ ¶
168-73. Plaintiff offers no facts to support these
allegations. Instead, Plaintiff argues in her oppositions
that “at this Motion to Dismiss stage, the allegations
of the Complaint are to be taken as true” and, as a
result, repeatedly points to allegations made in her
Complaint as responses to Defendants' arguments. Opp. to
TFS & NBH MTD at 6, 7.
B.
Plaintiff's Bankruptcy Proceedings
Plaintiff
has initiated four bankruptcy proceeding and one adversary
proceeding since March 2009. Each proceeding is discussed
below.
1.
March 2009 Filing
On
March 11, 2009, Plaintiff filed a voluntary petition for
Chapter 13 bankruptcy in the United States Bankruptcy Court
for the Northern District of California, which was docketed
at 09-51662 (“First Bankruptcy”). TFS & NBH
RJN Ex. 10. On March 31, 2009, the bankruptcy court entered
an order of dismissal in the First Bankruptcy because
Plaintiff failed to file the required documents. TFS &
NBH RJN Ex. 11.
2.
December 2016 Filing
On
December 8, 2016, Plaintiff filed a voluntary petition for
Chapter 13 bankruptcy in the United States Bankruptcy Court
for the Northern District of California, which was docketed
at 16-53447 (“Second Bankruptcy”). TFS & NBH
RJN Ex. 12. Under Part 2, Section 9 of the petition,
Plaintiff marked “No” to the question “Have
you filed for bankruptcy within the last 8 years?”
Id. Plaintiff identified NBH, SPS, and SDS as
creditors of the estate. Id. Plaintiff did not
identify any claims against TFS, NBH, WT, SPS, or SDS.
Id. On December 23, 2016, the bankruptcy court
entered an order of dismissal in the Second Bankruptcy for
Plaintiff's failure to comply. TFS & NBH RJN Ex. 13.
3.
January 2017 Filing
On
January 31, 2017, Plaintiff filed a third voluntary petition
for Chapter 13 bankruptcy in the United States Bankruptcy
Court for the Northern District of California, which was
docketed at 17-50208 (“Third Bankruptcy”). TFS
& NBH RJN Ex. 14. Under Part 2, Section 9 of the form,
Plaintiff again marked “No” to the question
“Have you filed for bankruptcy within the last 8
years?” Id. In this filing, Plaintiff
indicated that she was represented by counsel. Id.
In Part 4 of her Schedule A/B, Plaintiff was asked if she had
“[c]laims against third parties, whether or not you
have filed a lawsuit or made a demand for payment.”
Id. Plaintiff marked “No.” Id.
Plaintiff was also asked if she ...