Diane Depould v. Wells Fargo Bank NA et al
Filing
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ORDER Granting Motion to Dismiss 16 by Judge Dean D. Pregerson: For the reasons stated above, Wells Fargo's Motion to Dismiss is Granted. (See Order for Details), (MD JS-6. Case Terminated). (sch)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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DIANE DePOULD, an
individual,
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Plaintiff,
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v.
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WELLS FARGO BANK, N.A.,
WACHOVIA MORTGAGE, WORLD
SAVINGS BANK. F.S.B., NDEX
WEST, LLC,
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Defendants.
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___________________________
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Case No. CV 11-01827 DDP (PJWx)
ORDER GRANTING MOTION TO DISMISS
[Motion filed on 4/18/11]
Presently before the court is Defendant Wells Fargo Bank, N.A.
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(“Wells Fargo”)’s Motion to Dismiss First Amended Complaint.
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Having considered the submissions of the parties and heard oral
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argument, the court grants the motion and adopts the following
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order.
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I.
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Background
In 2007, Plaintiff obtained a mortgage loan, secured by her
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principal residence.
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Wells Fargo later obtained the First Trust Deed on Plaintiff’s
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property.
(Id.)
(First Amended Complaint (“FAC”) ¶ 10).
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Plaintiff could not afford the loan, and her account became
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delinquent.
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contacted Wells Fargo and requested a loan modification.
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16).
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from Plaintiff so that Wells Fargo could evaluate Plaintiff under
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the Making Homes Affordable Program (“HAMP”).
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(FAC ¶¶ 11,15).
On or about June 2010, Plaintiff
(FAC ¶
On June 6, 2010, Wells Fargo requested additional information
(FAC ¶ 17).
Between June 11, 2010 and October 23, 2010, Plaintiff spoke
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with Wells Fargo representatives over a dozen times.
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35).
(FAC ¶¶ 18-
Wells Fargo repeatedly informed Plaintiff that Wells Fargo
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required additional documentation, including IRS Form 4506-T.
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¶¶ 19, 22, 30).
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2010.
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Fargo’s request, on or about September 10, 2010.
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Wells Fargo requested an updated Form 4506-T on September 16, 2010.
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(FAC ¶ 25).
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September 27, 2010.
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informed Plaintiff that no additional documents were required at
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that time.
(FAC
Plaintiff first provided Form 4506-T on August 24,
(FAC ¶ 24).
Plaintiff again provided Form 4506-T, at Wells
(FAC ¶ 24).
Plaintiff faxed the document to Wells Fargo on
(FAC ¶ 31).
On October 21, 2010, Wells Fargo
(FAC ¶ 34).
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Between November 1, 2010 and March 29, 2011, Wells Fargo
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repeatedly informed Plaintiff that her modification request had not
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been resolved because of problems with her Form 4506-T.
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37).
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for negligence and unfair business practices, alleging that she has
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been harmed by Wells Fargo’s failure to act on her modification
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request.
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Amended Complaint.
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II.
(FAC ¶
On March 29, 2011, Plaintiff filed a First Amended Complaint
(FAC ¶ 44).
Wells Fargo now moves to dismiss the First
Legal Standard
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A complaint will survive a motion to dismiss when it
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"contain[s] sufficient factual matter, accepted as true, to state a
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claim to relief that is plausible on its face."
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129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly,
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550 U.S. 544, 570 (2007)).
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motion, a court must "accept as true all allegations of material
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fact and must construe those facts in the light most favorable to
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the plaintiff." Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.
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2000).
Ashcroft v. Iqbal,
When considering a Rule 12(b)(6)
Although a complaint need not include "detailed factual
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allegations," it must offer "more than an unadorned,
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the-defendant-unlawfully-harmed-me accusation."
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at 1949.
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than a statement of a legal conclusion "are not entitled to the
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assumption of truth." Id. at 1950. In other words, a pleading that
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merely offers "labels and conclusions," a "formulaic recitation of
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the elements," or "naked assertions" will not be sufficient to
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state a claim upon which relief can be granted. Id. at 1949
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(citations and internal quotation marks omitted).
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Iqbal, 129 S. Ct.
Conclusory allegations or allegations that are no more
"When there are well-pleaded factual allegations, a court should
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assume their veracity and then determine whether they plausibly
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give rise to an entitlement of relief." Id. at 1950. Plaintiffs
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must allege "plausible grounds to infer" that their claims rise
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"above the speculative level." Twombly, 550 U.S. at 555-56.
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"Determining whether a complaint states a plausible claim for
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relief" is "a context-specific task that requires the reviewing
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court to draw on its judicial experience and common sense." Iqbal,
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129 S. Ct. at 1950.
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III. Discussion
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Wells Fargo argues that Plaintiff’s claims are preempted by
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the Home Owners Loan Act (“HOLA”).
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with its authority under HOLA, the Office of Thrift Supervision
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promulgated a preemption regulation, 12 C.F.R. § 560.2.
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560.2 explicitly “occupies the entire field of lending regulation
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for federal savings associations.”
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regulations do not, however, preempt “basic state laws” such as
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uniform commercial codes, contract, or tort laws that “only
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incidentally” affect lending operations.
(Mot. at 6).
In accordance
Section
12 C.F.R. § 560.2(a).
Federal
Harris v. Wachovia
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Mortgage, FSB, 185 Cal.App.4th 1018, 1025-1026 (2010).
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Ninth Circuit has explained, “[w]hen analyzing the status of state
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laws under § 560.2, the first step will be to determine whether the
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type of law in question is listed in paragraph (b).
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analysis will end there; the law is preempted.”
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Mortgage Corp., 514 F.3d 1001, 1005 (9th Cir. 2008).
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As the
If so, the
Silvas v. E*Trade
Here, Plaintiffs claims are based on Wells Fargo’s failure to
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properly process her application for a loan modification.
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claims fall squarely within paragraph (b) of Section 560.2.
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Section 560.2(b)(4) applies to requirements regarding “[t]he terms
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of credit, including amortization of loans and the deferral and
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capitalization of interest and adjustments to the interest rate,
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balance, payments due, or term to maturity of the loan . . . .”
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C.F.R. § 560.2(b)(4).
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the very adjustments listed in paragraph (b)(4).
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Section 560.2(b)(10) references regulation of the “processing,
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origination, or servicing” of mortgages.
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Plaintiff’s claims regarding Wells Fargo’s improper processing of
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her application for a modification of loan terms have more than an
These
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Plaintiff seeks a determination regarding
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Furthermore,
12 C.F.R. § 560.2(b)(10).
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“incidental effect” on lending operations, and are preempted by 12
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C.F.R. § 560.2.1
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1085660 (S.D. Cal. 2011)(dismissing claims based on loan
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modification as preempted); c.f. Ahmed v. Wells Fargo Bank & Co.,
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2011 WL 1751415 (N.D. Cal. 2011) (distinguishing claims based on
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fraudulent misrepresentation that a loan modification would be
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approved from “processing, origination, and servicing” claims).
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IV.
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See also Zarif v. Wells Fargo Bank, NA, 2011 WL
Conclusion
For the reasons stated above, Wells Fargo’s Motion to Dismiss
is GRANTED.
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IT IS SO ORDERED.
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Dated: September 27, 2011
DEAN D. PREGERSON
United States District Judge
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Having concluded that Plaintiff’s claims are preempted, the
court does not address the merits of Plaintiff’s negligence and
unfair business practices claims.
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