Mangaoang v. Special Default Services, Inc.

          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 ...