Malveaux v. Wells Fargo Bank, N.A. et al, No. 4:2017cv05004 - Document 36 (N.D. Cal. 2017)
Court Description: ORDER GRANTING MOTIONS TO DISMISS AND ORDER TO SHOW CAUSE REGARDING SERVICE. Amended Pleadings due by 1/18/2018. Joint Case Management Statement due by 3/20/2018. Case Management Conference set for 3/27/2018 02:30 PM. (dtmS, COURT STAFF) (Filed on 12/28/2017)
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1 2 IN THE UNITED STATES DISTRICT COURT 3 FOR THE NORTHERN DISTRICT OF CALIFORNIA 4 5 JAMES P. MALVEAUX, v. 7 14 WELLS FARGO BANK, N.A.; BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP; FIRST AMERICAN TITLE COMPANY; BANK OF NEW YORK MELLON f/k/a BANK OF NEW YORK as Trustee for WORLD SAVINGS REMIC TRUST, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 19; RALPH PARTNERS II, LLC; AND ALL PERSONS KNOWN OR UNKNOWN CLAIMING AN INTEREST IN THE SUBJECT PROPERTY, and DOES 2 through 50, inclusive, 15 ORDER GRANTING MOTIONS TO DISMISS AND ORDER TO SHOW CAUSE REGARDING SERVICE Defendants. 9 United States District Court Northern District of California 17-cv-05004-CW Plaintiff, 6 8 Case No. 10 11 12 13 (Docket Nos. 14, 15, 19, 20, 22) 16 17 18 19 20 21 22 23 24 25 On August 29, 2017, Plaintiff James P. Malveaux, then unrepresented by counsel, filed a complaint initiating this action. On September 18, 2017, Defendants Wells Fargo Bank, N.A., and the Bank of New York Mellon1 moved to dismiss the complaint. Plaintiff did not respond to the motion within the fourteen days provided by Civil Local Rule 7-3(a) or file an amended complaint within the twenty-one days provided by Federal Rule of Civil Procedure 15(a)(1)(B). On October 18, 2017, the Court issued an order granting Plaintiff an extension of time to 26 27 1 28 Except where otherwise noted, references in this order to “Defendants” refer to these two moving Defendants. 1 respond to the motion to dismiss. 2 October 25, 2017, Plaintiff, now represented by counsel, filed a 3 first amended complaint (1AC), not accompanied by a stipulation 4 or a motion for leave. 5 moved to dismiss. 6 filed a reply. 7 Instead of doing so, on On November 1, 2017, Defendants again Plaintiff opposed the motion and Defendants Having considered the parties’ papers, the record in this case and relevant authority, the Court grants leave for Plaintiff 9 United States District Court Northern District of California 8 to file the 1AC; denies as moot Defendants’ motion to dismiss the 10 original complaint and request for judicial notice in support of 11 that motion; grants Defendants’ motion to dismiss the 1AC; and 12 grants one further opportunity for Plaintiff to amend his claims. 13 The Court also grants Defendants’ request for judicial notice, 14 filed in support of the motion to dismiss the 1AC, but sustains 15 Plaintiff’s objection and does not take judicial notice of the 16 truth of disputed statements within the noticed documents. 17 Finally, the Court orders Plaintiff to show cause why his claims 18 against Defendants who have not yet appeared in this action 19 should not be dismissed without prejudice due to lack of timely 20 service. 21 BACKGROUND 22 Plaintiff alleges the following facts. Plaintiff owns a 23 single family residence in Pacifica, California. 24 June 16, 2005, Plaintiff and his wife executed an adjustable rate 25 mortgage secured by the property, consisting of a deed of trust, 26 note, and adjustable rate rider. 27 World Savings Bank, FSB as the lender and Defendant First 28 American Title Company as the title insurance company. On or about The deed of trust identifies 2 Defendant Wells Fargo Bank, N.A., “holds itself out as the current servicer 2 of Plaintiff’s mortgage loan.” 3 in this action include Barrett Daffin Frappier Treder & Weiss, 4 LLP (Barrett Daffin), which provides legal services and “default 5 and foreclosure services,” id. ¶ 3; the Bank of New York Mellon 6 f/k/a the Bank of New York, which serves as trustee for the World 7 Savings Remic Trust, Mortgage Pass-Through Certificates, Series 8 19; and Defendant Ralph Partners II, LLC, added as a Defendant in 9 United States District Court Northern District of California 1 the 1AC, which purchased the property in a foreclosure sale. 10 1AC ¶ 2. Other Defendants named A notice of default and election to sell under the deed of 11 trust was recorded on August 22, 2010. 12 this notice of default was recorded on August 8, 2014. 13 A notice of rescission of On October 29, 2015, a substitution of trustee was recorded, 14 substituting Barrett Daffin as trustee under the deed of trust. 15 Plaintiff alleges that this substitution violates the terms of 16 the deed of trust. 17 A second notice of default and election to sell under the 18 deed of trust was issued on February 18, 2016 by Barrett Daffin, 19 and recorded on February 22, 2016. 20 notice was defective due to the July 2005 securitization of 21 Plaintiff’s loan. 22 December 20, 2016. 23 Plaintiff alleges that this A notice of trustee’s sale was recorded on In January 2017, Plaintiff, represented by different 24 counsel, filed a lawsuit in San Mateo County Superior Court, 25 challenging Defendants’ right to foreclose. 26 Fargo Bank, N.A., San Mateo Superior Court No. 17-civ-00328. 27 January 25, 2017, the state court denied Plaintiff’s petition for 28 a temporary restraining order (TRO) enjoining foreclosure. 3 Malveaux v. Wells On Defendants filed a demurrer to the complaint, which the state 2 court sustained at a hearing on April 25, 2017, followed by a 3 written order filed May 11, 2017. 4 Plaintiff leave to amend, but Plaintiff did not timely amend his 5 complaint and, on June 14, 2017, voluntarily dismissed the action 6 without prejudice. 7 Wells Fargo representative informed him that the bank would allow 8 him to sell his home through his realtor or “give him a loan 9 United States District Court Northern District of California 1 modification if he qualified” only if he dismissed his lawsuit in The state court granted Plaintiff alleges that he did so because a 10 San Mateo Superior Court as well as a bankruptcy proceeding. 11 1AC ¶¶ 64-66, 70.2 12 Plaintiff alleges that he began submitting the requested 13 documents for a loan modification application around the time 14 that he voluntarily dismissed his state court lawsuit. 15 June 2017, Plaintiff was informed that a trustee’s sale was 16 scheduled for early July 2017. 17 and learned that Plaintiff had a new contact person for his loan 18 modification. 19 Plaintiff that the trustee’s sale of the property was postponed 20 to August 30, 2017. 21 unspecified Defendant “emailed Plaintiff that they were not going 22 to proceed with the loan modification process,” but did not 23 inform him of his right to appeal the loan modification decision 24 or afford him the opportunity of selling his home through his 25 realtor. In late His realtor contacted Wells Fargo On or about July 6, 2017, Barrett Daffin notified Compl. Ex. F. On August 25, 2017, an 1AC ¶¶ 71-73. 26 2 27 28 Plaintiff alleges that he dismissed the lawsuit in June, 1AC ¶¶ 64-66, and again in July, id. ¶ 70. The Court takes judicial notice that the dismissal was filed in San Mateo County Superior Court on June 14, 2017. 4 1 On August 29, 2017, Plaintiff filed this action and a motion for a TRO enjoining the August 30, 2017 foreclosure sale. 3 same day, this Court denied the motion for a TRO because 4 Plaintiff had neither notified Defendants of the motion nor shown 5 why he should be excused from doing so. 6 1:15 p.m., Plaintiff recorded with the San Mateo Assessor-County 7 Clerk-Recorder a notice of the pendency of this action, and 8 brought a copy of the document to the place where the foreclosure 9 United States District Court Northern District of California 2 On the sale was being held. On August 30, 2017, at The person conducting the sale took a 10 picture of it with his cell phone. 11 and Ralph Partners purchased the property.3 12 The trustee’s sale took place In the 1AC, Plaintiff alleges claims for: (1) wrongful 13 foreclosure; (2) quiet title; (3) unjust enrichment; 14 (4) violation of California Civil Code sections 2923.6(c), 15 2923.55(a), (b)(1); (5) violation of California Civil Code 16 section 2923.6(c) and/or section 2924; (6) violation of 17 California’s Unfair Competition Law (UCL), Civil Code section 18 17200; (7) accounting and verification of the alleged debt; 19 (8) bank fraud under 18 U.S.C. § 1344; (9) fraud in the 20 inducement; (10) promissory estoppel; (11) slander of title; and 21 (12) violation of “each and every rule of the Federal Consumer 22 Protection Bureau.” 23 24 LEGAL STANDARD A complaint must contain a “short and plain statement of the 25 3 26 27 28 Plaintiff pleads inconsistent dates regarding the filing of the lawsuit, recording of the notice of pendency and foreclosure sale. 1AC ¶¶ 74-77. It appears that the references in the Complaint to September 2017 may be erroneous. In any amended complaint, Plaintiff must ensure that the facts plead, including all dates, are accurate. See Fed. R. Civ. P. 11(b). 5 claim showing that the pleader is entitled to relief.” 2 Civ. P. 8(a). 3 a claim to relief that is plausible on its face.” 4 Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. 5 Twombly, 550 U.S. 544, 570 (2007)). 6 12(b)(6) for failure to state a claim, dismissal is appropriate 7 only when the complaint does not give the defendant fair notice 8 of a legally cognizable claim and the grounds on which it rests. 9 United States District Court Northern District of California 1 Fed. R. Twombly, 550 U.S. at 555. The plaintiff must proffer “enough facts to state Ashcroft v. On a motion under Rule A claim is facially plausible “when 10 the plaintiff pleads factual content that allows the court to 11 draw the reasonable inference that the defendant is liable for 12 the misconduct alleged.” 13 Iqbal, 556 U.S. at 678. In considering whether the complaint is sufficient to state 14 a claim, the court will take all material allegations as true and 15 construe them in the light most favorable to the plaintiff. 16 Metzler Inv. GMBH v. Corinthian Colleges, Inc., 540 F.3d 1049, 17 1061 (9th Cir. 2008). 18 of the complaint, materials incorporated into the complaint by 19 reference, and facts of which the court may take judicial notice. 20 Id. at 1061. 21 conclusions, including threadbare “recitals of the elements of a 22 cause of action, supported by mere conclusory statements.” 23 Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). 24 The court’s review is limited to the face However, the court need not accept legal Rule 9(b) provides that in “alleging fraud or mistake, a 25 party must state with particularity the circumstances 26 constituting fraud or mistake.” 27 well-settled that the Federal Rules of Civil Procedure apply in 28 federal court, ‘irrespective of the source of the subject matter Fed. R. Civ. P. 9(b). 6 “It is jurisdiction, and irrespective of whether the substantive law at 2 issue is state or federal.’” 3 1120, 1125 (9th Cir. 2009) (quoting Vess v. Ciba–Geigy Corp. USA, 4 317 F.3d 1097, 1102 (9th Cir. 2003). 5 “specific enough to give defendants notice of the particular 6 misconduct which is alleged to constitute the fraud charged so 7 that they can defend against the charge and not just deny that 8 they have done anything wrong.” 9 United States District Court Northern District of California 1 727, 731 (9th Cir. 1985). Kearns v. Ford Motor Co., 567 F.3d The allegations must be Semegen v. Weidner, 780 F.2d When granting a motion to dismiss, the court is generally 10 11 required to grant the plaintiff leave to amend, even if no 12 request to amend the pleading was made, unless amendment would be 13 futile. 14 Inc., 911 F.2d 242, 246-47 (9th Cir. 1990). 15 whether amendment would be futile, the court examines whether the 16 complaint could be amended to cure the defect requiring dismissal 17 “without contradicting any of the allegations of [the] original 18 complaint.” 19 Cir. 1990). 20 21 22 Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. In determining Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th DISCUSSION I. Filing of the First Amended Complaint Defendants move to dismiss all claims because Plaintiff did 23 not oppose the motion to dismiss his original complaint, and 24 filed his amended complaint without Defendants’ consent or leave 25 of court and outside of the time for amendment as a matter of 26 course under Federal Rule of Civil Procedure 15(a)(1). 27 responds that this Court’s October 18, 2017 order extending the 28 time “to respond to the motion to dismiss” included leave to file 7 Plaintiff 1 an amended complaint. This interpretation is not consistent with 2 the language of the order. 3 without consent or leave, in violation of Rule 15. Plaintiff’s 1AC was untimely filed However, the Court must liberally grant leave to amend in 4 the interest of justice, and the Court construes the October 25, 6 2017 declaration of Marianne Malveaux, Esq., and Plaintiff’s 7 November 15, 2017 opposition to the motion to dismiss as 8 including a request for leave to file the 1AC. 9 United States District Court Northern District of California 5 of discretion, the Court grants the motion and deems the 1AC In the exercise 10 filed on October 25, 2017. 11 counsel, however, that they must carefully follow rules and 12 orders in the future. 13 II. 14 The Court warns Plaintiff and his Loan Securitization and Chain of Title Many of the claims in the 1AC are predicated on Plaintiff’s 15 theory that his original lender, World Savings Bank, FSB, 16 transferred or “securitized” his loan in July 2005 and failed to 17 secure the chain of title to Wells Fargo, thereby depriving Wells 18 Fargo of the right to enforce the loan contract and to initiate a 19 non-judicial foreclosure. 20 stated, there is no successor---lender [sic] to WORLD SAVINGS in 21 the mortgage loan.” 22 irreversibly broken to the Subject Property with the lender’s 23 successor and assign (the true identity of the present 24 beneficiary) unassigned, undocumented and unknown to date. 25 other words, there is no lender’s successor and assign to WORLD 26 SAVINGS in the mortgage loan.” 27 this argument previously, and Plaintiff has provided no reason to 28 deviate from the Court’s prior analysis. Indeed, Plaintiff alleges, “Simply 1AC ¶ 15. Further, “the chain of title was 1AC ¶ 23. 8 In The Court has rejected See Jackson v. Atlantic 1 Sav. of Am., No. 13-cv-05755-CW, 2014 U.S. Dist. LEXIS 136521, 2 **19-22 (N.D. Cal. 2014). 3 conclusion, including a recent and persuasive California 4 appellate decision. 5 Servicing Solutions, LLC, 8 Cal. App. 5th 23, 41-44 (2017) 6 (holding that even assuming the truth of similar securitization 7 allegations, they would be insufficient to set aside 8 foreclosure). United States District Court Northern District of California 9 Numerous courts have reached the same See Kalnoki v. First American Trustee Despite many paragraphs in the 1AC dedicated to boilerplate 10 allegations concerning the securitization process, Plaintiff 11 ultimately disclaims any reliance on a securitization theory. 12 See 1AC ¶ 48 (“Plaintiff is not alleging or challenging 13 ‘securitization.’ 14 the real parties in interest because of their failure to secure 15 the chain of title to the Subject Property during the 16 securitization process.”); Opp. at 5 (“Plaintiff does not 17 challenge the securitization of Plaintiff’s mortgage loan. 18 Instead, he points to the Bank Defendants [sic] failure to ensure 19 CLEAR the chain of title for each and every mortgage Bank 20 Defendants allegedly ‘acquired’ by whatever means.”). 21 Plaintiff is alleging that Defendants are not Plaintiff fails to plead any facts suggesting a defect in 22 the chain of title to his particular loan, as opposed to 23 unspecified loans of other borrowers. 24 noticeable documents demonstrate that due to the name change of 25 World Savings to Wachovia Mortgage, FSB, and Wachovia’s 26 subsequent merger into Wells Fargo, Wells Fargo is indeed the 27 successor-in-interest to World Savings. 28 Defendants note, courts have recognized this corporate 9 Moreover, judicially Defs. RJN Exs. A-E. As transaction. 2 No. 11-cv-01337-WHA, 2011 U.S. Dist. LEXIS 117835, *3 (N.D. Cal. 3 Oct. 12, 2011) (“World Savings changed its name to Wachovia 4 Mortgage in late 2007. 5 Wells Fargo Bank in 2009 and is the current holder of the 6 note.”); Nguyen v. Wells Fargo Bank, N.A., 749 F. Supp. 2d 1022, 7 1024-1025 (N.D. Cal. 2010) (“judicially noticeable documents 8 reveal that the original lender, World Savings Bank, FSB, simply 9 United States District Court Northern District of California 1 changed its name to Wachovia Mortgage, FSB, and is now a division 10 of Wells Fargo Bank, N.A., so transfers among those entities were 11 proper”). 12 See, e.g., Wolf v. Wells Fargo Bank, N.A., Wachovia Mortgage then became part of Because Plaintiff has failed to allege any defect in the 13 chain of title, or securitization, of his loan, all the claims 14 dependent on that theory fail, and the Court dismisses them. 15 This includes, in particular, the entirety of Claims 1,4 2, 3 and 16 11,5 as well as Plaintiff’s other claims to the extent that they 17 rely on this theory, including Claims 4, 6, 7, 8, 10 and 12. 18 Court will grant leave to amend these claims, but Plaintiff must 19 allege facts plausibly supporting each claim and set forth a 20 viable legal theory. The 21 22 23 24 25 26 27 28 4 Plaintiff’s wrongful foreclosure claim also suffers from additional defects, including the fact that Plaintiff agreed when he signed the trust deed that the lender could at any time appoint a successor trustee. See 1AC Ex. A at § 27; see also id. §§ 1(C) & 1(H) (specifying that successors and/or assignees of World Savings Bank would become lenders and beneficiaries under the deed of trust). 5 Plaintiff’s slander of title claim also suffers from additional defects, including that Plaintiff fails to plead any facts showing that Defendants acted without privilege or justification. See Stowers v. Wells Fargo Bank, N.A., No. 13-cv05426-RS, 2014 WL 1245070, *7 (N.D. Cal. Mar. 25, 2014). 10 1 2 3 4 5 6 7 8 United States District Court Northern District of California 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 III. Homeowner Bill of Rights Plaintiff’s fourth and fifth claims seek relief under California’s Homeowner Bill of Rights (HBOR), Cal. Civil Code §§ 2923.6, 2923.55, 2924. In part, these claims seem predicated on the same chain-of-title theory discussed above, and fail for the same reasons. Plaintiff also, however, appears to assert a claim on the independent theory that Defendants violated the HBOR’s prohibition on “dual-tracking,” the practice of a mortgage servicer continuing to pursue foreclosure of a property while a complete loan modification application is pending. See Cal. Civ. Code § 2923.6(c). Defendants argue that this claim should be dismissed because Plaintiff does not adequately allege that he had submitted a complete loan modification application at the time that Defendants proceeded with the foreclosure process. Section 2923.6(c) protects a borrower who “submits a complete application for a first lien loan modification.” Cal. Civ. Code § 2923.6(c). The statute provides, “For purposes of this section, an application shall be deemed ‘complete’ when a borrower has supplied the mortgage servicer with all documents required by the mortgage servicer within the reasonable timeframes specified by the mortgage servicer.” Cal. Civ. Code § 2923.6(h). As this Court has explained previously, a loan modification application is “complete” for the purpose of triggering the protections of HBOR if a plaintiff has timely provided all documents required in advance by a lender for the submission of a loan modification application, even if the lender requires supplemental documents later. See Di Loreto v. Chase Manhattan 28 11 1 Mortg. Corp., No. 17-cv-05187-CW, 2017 WL 5569834, at *5 (N.D. 2 Cal. Nov. 20, 2017) (citing Mace v. Ocwen Loan Servicing, LLC, 3 252 F. Supp. 3d 941, 946 (N.D. Cal. 2017)). 4 Plaintiff fails, however, to assert that his loan modification application was complete before Defendants took any 6 prohibited foreclosure action. 7 submitting the requested documents,” 1AC ¶ 67, but does not 8 allege that he completed the application. 9 United States District Court Northern District of California 5 what documents were required for the application to be complete, 10 either pursuant to any instructions by Defendants or pursuant to 11 any agreement reached in connection with the dismissal of 12 Plaintiff’s state court lawsuit. 13 completeness requires dismissal of Plaintiff’s claim that 14 Defendants only notified him of the denial of his loan 15 modification application by email, not in a compliant written 16 denial under section 2923.6(c)(1)-(3). 17 He alleges that he “began Nor does he allege The same failure to allege See 1AC ¶¶ 71-72. Additionally, to the extent that Plaintiff attempts to 18 assert a claim that Defendants did not provide him with 19 information in writing upon his request in violation of section 20 2923.55(b)(1), he does not adequately allege what information he 21 requested and when, or what, if any, response he received from 22 Defendants. 23 claim that Defendants’ contacts with him prior to foreclosure 24 were insufficient under section 2923.55(a) despite the 25 declaration of compliance attached to the recorded notice of 26 default. 27 truth of the declaration of compliance, but Plaintiff must allege 28 facts giving rise to a claim that the declaration of compliance Likewise, he does not allege facts supporting a See 1AC Ex. E. at 4. The Court does not assume the 12 1 is inaccurate, not merely a conclusory allegation of the legal 2 standard. 3 Services, 2009 U.S. Dist. LEXIS 95245, **6-7 (C.D. Cal. 2009) 4 (holding that plaintiffs’ “conclusory assertions are contradicted 5 by the notice of default” that included the HBOR declaration of 6 compliance). Iqbal, 556 U.S. at 678; see also Kamp v. Aurora Loan The Court will dismiss Plaintiff’s fourth and fifth claims, 7 seeking relief under HBOR, for failure to allege necessary facts, 9 United States District Court Northern District of California 8 but will grant leave to amend these claims so that Plaintiff may 10 clarify his legal theory and attempt to plead the required facts. 11 IV. Unfair Competition Law Defendants contend that Plaintiff’s UCL claim is entirely 12 13 derivative of his other defective claims, and must be dismissed 14 for the same reasons. 15 concedes that this is so. 16 section 2923.55 and his wrongful foreclosure claim survive 17 dismissal, and that therefore his UCL claim also survives. 18 Because the Court has dismissed Plaintiff’s HBOR and wrongful 19 foreclosure claims, it dismisses his derivative UCL claim as 20 well. 21 In response, Plaintiff essentially He argues that his HBOR claim under Plaintiff’s UCL claim suffers from additional defects. 22 Plaintiff fails adequately to allege that he lost money or 23 property as a result of Defendants’ actions. 24 § 17204; Daro v. Superior Court, 151 Cal. App. 4th 1079, 1098 25 (2007) (“a private person has standing to sue under the UCL only 26 if that person has suffered injury and lost money or property ‘as 27 a result of such unfair competition.’”). 28 complaint, Plaintiff must plead facts sufficient to show the 13 Bus. & Prof. Code In any amended 1 causation and injury required by the UCL. The UCL claim also contains a list of allegedly deceptive 2 3 business practices that appears to be erroneously copied from 4 another case. 5 and “HSBC”). 6 complaint to ensure that he accurately pleads the facts of this 7 case. 8 V. United States District Court Northern District of California 9 See 1AC ¶ 115 (referring to “MERS,” “SLS,” “MLF” Plaintiff must carefully review any amended Accounting Defendants argue that Plaintiff’s claim for an accounting 10 should be dismissed without leave to amend, because Plaintiff 11 cannot plead the necessary relationship between the parties, and 12 does not plead that any Defendant owes Plaintiff a definite sum 13 of money. 14 showing that a relationship exists between the plaintiff and 15 defendant that requires an accounting, and that some balance is 16 due the plaintiff that can only be ascertained by an accounting.” 17 Teselle v. McLoughlin, 173 Cal. App. 4th 156, 179 (2009). 18 Plaintiff responds that Defendants owe him a sum of money 19 represented by the value of his home over and above the amount 20 that he owed Defendants when the home was sold, and requests 21 leave to amend to allege facts supporting this claim. 22 theory is different from the theory set forth in the 1AC, which 23 is derivative of the failed “securitization” theory. 24 ¶¶ 120-124 (“Defendants should provide an accounting of profits 25 made on the Subject Property from their Wall Street dealings.”). 26 The Court dismisses Plaintiff’s seventh cause of action, for an 27 accounting, as currently plead. 28 that Plaintiff pleads regarding the foreclosure sale of his home, “A cause of action for an accounting requires a This legal See 1AC However, in light of the facts 14 the Court cannot find that it would be futile to grant Plaintiff 2 leave to amend to allege facts in support of a claim for an 3 accounting of Defendants’ profits at the foreclosure sale. 4 the other elements that Plaintiff must plead in support of any 5 amended claim for an accounting, he must plead facts giving rise 6 to a plausible claim that Defendants have not already provided 7 him with the information that he seeks, or that he does not 8 already have ready access to the information. 9 United States District Court Northern District of California 1 Cal. App. 4th at 179. 10 VI. Among See Teselle, 173 Fraud 11 Plaintiff’s eighth, ninth and tenth claims allege, under 12 various legal theories, that Defendants defrauded him by offering 13 him a loan modification to induce him to dismiss his state court 14 lawsuit, and then recanting the offer and foreclosing without 15 adequate notice after he dismissed his state court lawsuit in 16 reliance. 17 Plaintiff alleges that Wells Fargo representatives “informed him 18 that Wells Fargo would give him a loan modification if he 19 qualified,” 1AC ¶ 65 (emphasis added), and would not give him a 20 loan modification if his state court lawsuit remained pending, 21 id. ¶ 64. 22 claims that Defendants “breached an agreement to give Plaintiff a 23 Loan Modification,” id. at ¶ 126 (bank fraud claim), made him an 24 “offer of a loan modification,” id. at 130 (fraud in the 25 inducement claim), or “promised plaintiff that he would receive a 26 loan modification if he dropped his lawsuit in State court,” id. 27 at ¶ 134 (promissory estoppel claim). 28 motion to dismiss, Plaintiff does not address his own factual Each of these claims suffers from a common defect. His factual allegations do not support his legal 15 In opposition to the 1 allegation that Wells Fargo only offered to consider him for a 2 loan modification if he dismissed his state court lawsuit, and 3 give him a loan modification if he qualified. 4 Court finds that these claims must be dismissed because Plaintiff 5 has not plead any misrepresentation by Defendants. 6 allege that Defendants did not consider him for a loan 7 modification after he dropped his state court lawsuit, only that 8 he did not receive a loan modification. United States District Court Northern District of California 9 Accordingly, the He does not The Court will grant Plaintiff leave to amend these claims 10 to plead facts alleging each element of each claim, including the 11 “‘the who, what, when, where, and how’ of the misconduct 12 charged.” 13 consistent with Federal Rule of Civil Procedure 11, the 14 statements that Defendants made to him and the actions that they 15 took that made those statements misleading or fraudulent. 16 Plaintiff attempts to amend these claims, he may only allege 17 other facts consistent with his complaint and 1AC. 18 912 F.2d at 297. 19 Kearns, 567 F.3d at 1124.6 Plaintiff must allege, If Reddy, Defendants also argue that Plaintiff’s tenth claim, for 20 promissory estoppel, is barred by the statute of frauds, which 21 provides that any agreement “for the sale of real property, or of 22 an interest therein,” is invalid unless it is “in writing and 23 subscribed by the party to be charged or by the party’s agent.” 24 Cal. Civil Code § 1624(a), (a)(3). 25 statute of frauds. A mortgage is subject to the Cal. Civil Code § 2922. Plaintiff does not 26 27 28 6 In future briefing, the parties should explain their positions regarding which claims, if any, must be plead under the heightened standard of Federal Rule of Civil Procedure 9(b). 16 1 oppose the motion to dismiss on this basis. 2 Court will grant Defendants’ motion to dismiss Plaintiff’s 3 promissory estoppel claim on this additional ground. 4 will grant Plaintiff leave to amend to allege facts supporting 5 the existence of a settlement agreement or other writing that 6 would satisfy the statute of frauds. 7 VII. Violation of Federal Consumer Protection Bureau Rules 8 United States District Court Northern District of California 9 Accordingly, the The Court Plaintiff claims that “Defendant Wells Fargo violated each and every rule of the Federal Consumer Protection Bureau in this 10 matter.” 11 HBOR claims. 12 because the conclusory allegations are insufficient to place them 13 on fair notice of what claim they are to defend. 14 not oppose dismissal of this claim, or mention it in his 15 opposition, and the Court will dismiss it. 16 VIII. Failure to Join Indispensable Party 17 1AC ¶ 140. This claim appears to be derivative of his Id. ¶¶ 141-42. Defendants move to dismiss it Plaintiff does Defendants move to dismiss all claims in the 1AC for failure 18 to join an indispensable party. 19 was a co-borrower, and the documents attached to the 1AC and 20 subject to judicial notice reflect this fact. 21 that Ms. Malveaux has a substantial interest in the claims in 22 this litigation and prejudice would result if she is not a party 23 to this action. 24 half of a sentence and a relevant exhibit that would explain his 25 opposition to dismissal on this ground. 26 Plaintiff alleges that his wife Defendants argue In response, Plaintiff appears to have omitted Opp. at 4.7 The Court does not reach this argument because it dismisses 27 7 28 On October 26, 2017, the Clerk entered a notice to counsel that Exhibit G was missing, but Plaintiff has not responded. 17 1 Plaintiff’s claims on other grounds. 2 complaint, Plaintiff must either include Ms. Malveaux as a party 3 or allege facts showing why judgment rendered in her absence 4 would be adequate or why Rule 19 is inapplicable for other 5 reasons. 6 relevant to any claim for non-monetary relief, such as 7 Plaintiff’s claim for quiet title. United States District Court Northern District of California Such facts will be particularly (although not only) In reply, Defendants contend that Ralph Partners, too, is an 8 9 However, in any amended indispensable party. Because Ralph Partners is already named as 10 a defendant in the 1AC, this argument fails. The Court does not 11 reach the question of whether Ralph Partners is indispensable, 12 although it may be raised again later if Plaintiff fails timely 13 to serve Ralph Partners. Having dismissed the 1AC in its entirety, the Court does not 14 15 reach Defendants’ remaining arguments for dismissal. 16 IX. Only two Defendants, Wells Fargo and the Bank of New York 17 18 Service Mellon, have appeared in this case to date. Defendants Barrett Daffin and First American Title Company 19 20 were named in the complaint filed August 29, 2017, but Plaintiff 21 has not sought issuance of summons to them. 22 4(b). 23 the Bank of New York Mellon contend that Barrett Daffin, as the 24 foreclosure trustee, is a “nominal party serving as Wells Fargo’s 25 ministerial agent” which should not be required to join in the 26 joint case management statement. 27 First American Title Company has appeared in this action, and 28 more than ninety days have passed after the filing of the See Fed. R. Civ. P. In their “Unilateral Rule 26(f) Report,” Wells Fargo and Neither Barrett Daffin nor 18 1 2 complaint. See Fed. R. Civ. P. 4(m). Defendant Ralph Partners was first named in the 1AC 3 submitted on October 25, 2017. 4 sought issuance of summons to Ralph Partners. 5 the filing of the 1AC will have passed on January 23, 2018. 6 On December 13, 2017, Plaintiff Ninety days after The Court has dismissed all claims in the 1AC and granted leave to amend. 8 Plaintiff to show cause regarding service immediately. 9 United States District Court Northern District of California 7 Accordingly, the Court will not also order warns Plaintiff, however, that if he timely files a second The Court 10 amended complaint, he must promptly seek issuance of summons as 11 to all Defendants who have not already been served and must serve 12 them in compliance with Federal Rule of Civil Procedure 4 if 13 waiver of service cannot be obtained. 14 filing a second amended complaint, Plaintiff must file a written 15 report with this Court regarding the status of service on all 16 named Defendants that have not already appeared in this action. 17 If Plaintiff asserts claims against Barrett Daffin and First 18 American Title, he must serve them in compliance with Rule 4, or 19 obtain waiver of service, before filing his status report, or 20 show cause why the claims against them should not be dismissed 21 without prejudice pursuant to Rule 4(m). 22 Within seven days after Plaintiff must file a written report regarding service on 23 Ralph Partners no later than January 24, 2018. 24 not served Ralph Partners or obtained a waiver of service by that 25 date, he must show cause why the claims against Ralph Partners 26 should not be dismissed without prejudice pursuant to Rule 4(m). 27 28 If Plaintiff has Failure to file either of the written status reports regarding service or to comply in any respect with this order 19 1 shall result in dismissal without prejudice under Rule 4(m) 2 without further notice. 3 CONCLUSION The Court GRANTS leave for Plaintiff to file the 1AC (Docket 4 5 No. 17). The Court DENIES AS MOOT Defendants’ motion to dismiss the 6 original complaint (Docket No. 14) and Defendants’ request for 8 judicial notice in support of that motion to dismiss (Docket No. 9 United States District Court Northern District of California 7 15). 10 The Court grants Defendants’ motions for judicial notice of 11 the documents submitted in support of the motion to dismiss the 12 1AC (Docket No. 20), but sustains Plaintiff’s objection (Docket 13 No. 22) and does not take judicial notice of the truth of 14 disputed statements within the documents. 15 The Court GRANTS Defendants’ motion to dismiss the 1AC 16 (Docket No. 19). 17 Court does not reach Defendants’ additional and alternative 18 arguments for dismissal of some of the claims. 19 replead any or all of his dismissed claims if he can truthfully 20 allege, without contradicting the allegations in his previous 21 complaints, facts sufficient to show that he is entitled to 22 relief. 23 days after the date of this order and must be accompanied by the 24 filing of a redline version showing the changes made in the 25 second amended complaint. 26 Because the Court has dismissed all claims, the Plaintiff may Any second amended complaint is due within twenty-one If Plaintiff timely files a second amended complaint, he 27 must immediately seek issuance of summons as to all Defendants 28 who have not already been served and must serve them in 20 compliance with Federal Rule of Civil Procedure 4 if waiver of 2 service cannot be obtained. 3 second amended complaint, Plaintiff must file a written report 4 with this Court regarding the status of service on all named 5 Defendants. 6 Plaintiff must file a further written report regarding the status 7 of service on Ralph Partners by January 24, 2018. 8 file either of the written status reports regarding service shall 9 United States District Court Northern District of California 1 result in dismissal without prejudice under Rule 4(m) without 10 11 Within seven days after filing a If Defendant Ralph Partners has not appeared, Failure to further notice. The response of Defendants Wells Fargo and the Bank of New 12 York Mellon shall be due within twenty-one days after the second 13 amended complaint is filed. 14 shall be due within the time provided by the Federal Rules of 15 Civil Procedure. The response of all other Defendants 16 If Plaintiff does not timely file a second amended 17 complaint, the Court will dismiss Plaintiff’s claims against 18 Wells Fargo and the Bank of New York Mellon with prejudice 19 without further notice, and will dismiss Plaintiff’s claims 20 against Defendants Barrett Daffin, First American Title Company 21 and Ralph Partners without prejudice. 22 Defendants shall notice any motions to dismiss the second 23 amended complaint for March 27, 2018, at 2:30 p.m. 24 shall join in a single motion to dismiss to the greatest extent 25 possible, and shall not file duplicative briefing. 26 shall file a single opposition brief in response to all motions 27 to dismiss. 28 21 Defendants Plaintiff 1 The Court hereby continues the initial case management 2 conference to March 27, 2018, at 2:30 p.m. 3 management statement is now due March 20, 2018. 4 The joint case IT IS SO ORDERED. 5 6 Dated: December 28, 2017 CLAUDIA WILKEN United States District Judge 7 8 United States District Court Northern District of California 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22
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