Blackwell v. Wells Fargo Home Mortgage, Inc., No. 5:2010cv04917 - Document 68 (N.D. Cal. 2011)
Court Description: ORDER GRANTING 41 MOTION TO DISMISS; DENYING 48 MOTION FOR SANCTIONS. Signed by Judge Jeremy Fogel on June 16, 2011. (jflc3, COURT STAFF) (Filed on 6/16/2011)
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Blackwell v. Wells Fargo Home Mortgage, Inc. Doc. 68 1 2 **E-filed 6/16/2011** 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11 12 AGNES BLACKWELL, Plaintiff, 13 v. 14 15 Case Number CV-10-04917-JF WELLS FARGO HOME MORTGAGE, INC., ORDER1 GRANTING MOTION TO DISMISS; DENYING MOTION FOR SANCTIONS [Re: Docket Nos. 41, 48] Defendant . 16 17 18 19 20 21 22 23 24 25 26 Plaintiff Agnes Blackwell filed this action following the commencement of non-judicial foreclosure proceedings on her home. The Court dismissed her original complaint for failure to state a claim upon which relief may be granted, allowing her twenty days within which to file any amended pleading. Blackwell filed her amended complaint ten days late. Defendants Wells Fargo Bank, N.A. (Wells Fargo) and Mortgage Electronic Registration Systems, Inc. (MERS), joined by Defendant Federal National Mortgage Association (Fannie Mae), move to strike the amended complaint as untimely, or in the alternative, to dismiss for failure to state a claim upon which relief may be granted. The Court is satisfied that Blackwell, who is representing herself in this action, made a good faith error in calculating the time allowed for filing an amended 27 28 1 This disposition is not designated for publication in the official reports. Case No. CV-10-04917 ORDER GRANTING MOTION TO DISMISS; DENYING MOTION FOR SANCTIONS (JFLC3) Dockets.Justia.com 1 complaint and in its discretion will deny the motion to strike. However, because the amended 2 complaint fails to remedy the deficiencies identified by the Court in its order granting Wells 3 Fargo’s motion to dismiss the original complaint, Defendants’ alternative motion to dismiss will 4 be granted without further leave to amend. 5 I. BACKGROUND 6 On May 30, 2007, Blackwell obtained a loan from Wachovia Mortgage Corp., now 7 known as Wells Fargo Home Mortgage, Inc., a division of Wells Fargo, in the amount of 8 $416,000. See Defendants’ Request for Judicial Notice (“RJN”) Ex. A (Deed of Trust). As 9 security for the loan, Blackwell executed a deed of trust that was recorded on June 6, 2007. Id. 10 The deed of trust identifies Wachovia as the lender; TRSTE, Inc., as the trustee; and MERS as 11 the beneficiary and nominee for the lender. Id. 12 Blackwell alleges that she was told by an agent of Wells Fargo that her monthly 13 payments would not exceed $2,200 and would be fixed for the life of the loan, but that when she 14 closed on the loan she learned that her payments actually would be $2,988 including taxes and 15 insurance, and that the loan would be interest-only for 180 months and thereafter would become 16 a fifteen-year loan with monthly payments of $3,595.38. First Amended Complaint (FAC) ¶ 61. 17 Blackwell also alleges that she was assured by Wells Fargo that the loan was affordable and that 18 she would be able to refinance the loan at a lower rate when the housing market improved. FAC 19 ¶ 62. She alleges that she was forced to close on the loan for fear of losing her deposit in the 20 sum of $14,000. Blackwell also alleges that Wachovia, along with her real estate agent and 21 appraiser, artificially inflated the sale price of the property. FAC ¶ 3. 22 A substitution of trustee dated September 4, 2009, and recorded on February 19, 2010, 23 named The Wolf Firm as trustee of the deed of trust. RJN Ex. C. On September 4, 2009, The 24 Wolf Firm filed a notice of default, stating that it was acting as either “the duly appointed 25 substitute trustee” or as “ an agent for the beneficiary.” 2 RJN Ex. D. A trustee’s sale occurred 26 27 28 2 The Wolf Firm initially filed a notice of default on August 18, 2009, but rescinded that notice on September 4, 2009. Compl. Ex. 3-5. 2 Case No. CV-10-04917 ORDER GRANTING MOTION TO DISMISS; DENYING MOTION FOR SANCTIONS (JFLC3) 1 on March 11, 2010, and the property was purchased by Fannie Mae. RJN Ex. E. Blackwell filed 2 this action against Wells Fargo on October 29, 2010. 3 4 II. DISCUSSION A. 5 Motion to Strike Defendants move to strike the amended complaint in its entirety because it was filed ten 6 days late. Blackwell concedes that her filing was untimely but states that she mistakenly 7 believed that she had twenty business days rather than twenty calendar days within which to 8 amend and that this period ran from the date she received the order rather than the date the order 9 was signed. In fact, the order stated explicitly that Blackwell had twenty days “from the date of 10 this order” to file any amended pleadings, Order of Jan. 26, 2011, and Rule 6 provides clear 11 guidance as to to how such a time period is to be calculated. See Fed. R. Civ. P. 6(a)(1)(b) 12 (“[C]ount every day, including intermediate Saturdays, Sundays, and legal holidays.”). 13 However, in light of Blackwell’s pro se status, the strong policy interest in resolving cases on the 14 merits, and the disposition of Defendants’ motion to dismiss, the motion to strike will be denied. 15 B. Motion to Dismiss As she did previously, Blackwell asserts that the Twombly/Iqbal standard3 is inapplicable 16 17 to plaintiffs proceeding pro se. However, as the Court noted in its earlier order, controlling 18 Ninth Circuit authority holds otherwise. Hebbe v. Pliler, 627 F.3d 338, 341-342 (9th Cir. 2010). 19 Dismissal for failure to state a claim under Rule 12(b)(6) thus is appropriate where “the 20 complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal 21 theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). That 22 said, the Court is mindful of its obligation to construe pro se filings with heightened liberality. 23 Hebbe, 627 F.3d at 342 (citing Bretz v. Kelman, 773 F. 2d 1026, 1027 n. 1 (9th Cir. 1985) (en 24 banc)). 25 In its order dismissing Blackwell’s original complaint, the Court concluded that 26 27 28 3 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). 3 Case No. CV-10-04917 ORDER GRANTING MOTION TO DISMISS; DENYING MOTION FOR SANCTIONS (JFLC3) 1 Blackwell’s claims for negligence, fraud, and intentional infliction of emotional distress were 2 time-barred, and that Blackwell had not alleged with particularity facts that if proved would 3 entitle her to equitable tolling under California law. Order of Jan. 26, 2011 at 4. In her amended 4 complaint, Blackwell realleges these claims along with new claims for fraudulent concealment, 5 unjust enrichment and violations of the Fair Credit Reporting Act. All of these claims arise from 6 events that allegedly occurred at or before the origination of the loan in May 2007 and are thus 7 time-barred on their face. See, e.g., Cal. Code Civ. Proc. § 338(d) (two year statute of 8 limitations for claim of fraudulent concealment); Cal. Code Civ. Proc. § 339(1) (two year statute 9 of limitations unjust enrichment); 15 U.S.C. § 1681 (two year statute of limitations for a 10 11 violation of the Fair Credit Reporting Act). Blackwell contends that the statute of limitations for these claims should be tolled 12 because Defendants fraudulently concealed the nature of the loan. As the Court observed in its 13 previous order, Blackwell must allege facts to show: (1) that she had no knowledge of her injury; 14 (2) that she lacked the means for obtaining such knowledge; and (3) how and when she actually 15 learned of the injury. Order of Jan. 26, 2011 at 2-3 (citing California Sansome Co. v. U.S. 16 Gypsum, 55 F.3d 1402, 1407 (9th Cir. 1995)). Blackwell alleges that she was told “at the time of 17 signing” that the monthly payment was $2,988.05 and that those payments would increase after 18 180 months. FAC ¶ 61 (emphasis added). Because the allegations show on their face that she 19 became aware of Defendants’ misrepresentations at the time she closed on the loan in 2007, 20 Blackwell cannot contend that the statute of limitations with respect to her claims should be 21 tolled. Similarly, Blackwell alleges no facts tending to show her delayed discovery of her claim 22 that the value of the property was inflated artificially by Defendants. 23 Blackwell does claim that in July 2010 she first learned of the provisions of the Truth in 24 Lending Act (TILA), 15 U.S.C. § 1601 et seq, which led her to conclude for the first time that 25 disclosures required by TILA had not been made. However, the fact that a plaintiff is unaware 26 of the law is insufficient to toll a statute of limitations. See Hinton v. Nmi Pac. Enters., 5 F.3d 27 391 (9th Cir. 1993) (“As a general rule, absent some wrongdoing on the part of a defendant, a 28 plaintiff’s ignorance of his cause of action . . . does not prevent the running of the limitations 4 Case No. CV-10-04917 ORDER GRANTING MOTION TO DISMISS; DENYING MOTION FOR SANCTIONS (JFLC3) 1 period.”). The amended complaint does not allege any facts tending to show that Defendants 2 prevented Blackwell from learning that she suffered harm. 3 Blackwell also asserts claims related to the events leading up to the trustee’s sale of the 4 subject property. In particular, she alleges that because the substitution of trustee was not 5 acknowledged or recorded until February of 2010, the notice of default was not filed by an 6 authorized party and thus was invalid. However, these allegations are not supported by 7 California law. 8 California Civil Code § 2924(a)(1) provides a “trustee, mortgagee, or beneficiary or any 9 of their authorized agents” may initiate a nonjudicial foreclosure. While Blackwell focuses on 10 the dates that the substitution of trustee was acknowledged and recorded, the relevant date for 11 substitution of trustee is the execution date. Padayachi v. IndyMac Bank, No. C 09-5545 JF 12 (PVT), 2010 U.S. 120963, at *4 (N.D. Cal. Oct. 28, 2010); Wilson v. Pacific Coast Title 13 Insurance Co., 106 Cal. App. 2d 599, 602 (1951) (holding a substitution of trustee valid even 14 though it was not acknowledged until two years after the execution date). Moreover, even 15 assuming that The Wolf Firm was not a validly appointed trustee, Blackwell does not allege that 16 the firm was not acting as an agent for MERS, the beneficiary. See Cal. Civ. Code § 2924(a)(1) 17 (providing that a notice of default may be recorded by the trustee, mortgagee, beneficiary, or any 18 of their authorized agents). 19 At oral argument, Blackwell indicated that she intended to seek legal counsel and 20 requested that she be granted leave to amend her pleading after she obtains representation. 21 While the Court recognizes that consultation with an attorney may help Blackwell to understand 22 her legal situation, neither the original complaint nor the amended complaint allege any facts 23 suggesting that a viable federal claim could be stated. Accordingly, the motion to dismiss will 24 be granted without leave to amend. However, if after seeking legal advice, Blackwell is able to 25 articulate a valid claim for relief, the Court will entertain a motion for relief from judgment 26 pursuant to Fed. R. Civ. P. 60(b). 27 C. 28 Motion for Sanctions In addition to opposing Defendants’ motion, Blackwell moves for sanctions pursuant to 5 Case No. CV-10-04917 ORDER GRANTING MOTION TO DISMISS; DENYING MOTION FOR SANCTIONS (JFLC3) 1 Fed. R. Civ. P. 11. She contends that Defendants’ motions were “a knee jerk reaction . . . simply 2 offered to waste time” and that Defendants’ counsel “fail[ed] to speak with candor to the court.” 3 Mot. ¶ 2. Plaintiff asks that the Court impose monetary sanctions or strike Defendant’s 4 pleadings pursuant to Rule 11(c). 5 “Rule 11 authorizes a court to impose a sanction on any attorney, law firm, or party that 6 brings a claim for an improper purpose or without support in law or evidence.” Vann v. Aurora 7 Loan Servs. LLC, No. 10-cv-04736-LHK, 2011 U.S. Dist. LEXIS 60223, at *22 (N.D. Cal. June 8 3, 2011) (quoting Sneller v. City of Bainbrindge Island, 606 F.3d 636, 638-39 (9th Cir. 2010)). 9 As is apparent from the foregoing discussion, the Court concludes that Defendants’ motion to 10 dismiss is well-taken. In addition, Blackwell has not shown that she complied with the “safe 11 harbor” provision of Rule 11, which requires that the party against whom sanctions are being 12 sought have twenty-one days after service of the motion to withdraw or correct its pleadings 13 before the motion for sanctions is filed with the Court. 14 II. ORDER The motion to dismiss is granted, without leave to amend.4 Defendants’ motion to strike 15 16 and Blackwell’s motion for sanctions are denied. The Clerk shall enter judgment and close the 17 file. 18 IT IS SO ORDERED 19 20 DATED: June 16, 2011 __________________________________ JEREMY FOGEL United States District Judge 21 22 23 24 25 26 27 28 4 The foregoing analysis is equally applicable to all claims against all Defendants named in Blackwell’s amended complaint. 6 Case No. CV-10-04917 ORDER GRANTING MOTION TO DISMISS; DENYING MOTION FOR SANCTIONS (JFLC3) 1 2 IN THE UNITED STATES DISTRICT COURT 3 FOR THE NORTHERN DISTRICT OF CALIFORNIA 4 SAN JOSE DIVISION 5 6 AGNES BLACKWELL, Plaintiff, 7 8 9 Case Number 5:10-cv-04917 JF CERTIFICATE OF SERVICE v. WELLS FARGO HOME MORTGAGE, INC., Defendant . 10 11 12 13 14 15 I, the undersigned, hereby certify that I am an employee of the Office of the Clerk, United States District Court, Northern District of California. On June 16, 2011, I served a true and correct copy of the attached document to each of the persons hereinafter listed by placing said copy in a postage paid envelope and depositing said envelope in the United States mail, or by placing said envelope in the outgoing mail delivery receptacle located in the Clerk’s Office: 16 17 18 19 Agnes Blackwell P.O. Box 4418 Santa Clara, CA 95056 DATED: June 16, 2011 For the Court Richard W. Weiking, Clerk 20 By: /s/ Diana Munz Courtroom Deputy Clerk 21 22 23 24 25 26 27 28 7 Case No. CV-10-04917 ORDER GRANTING MOTION TO DISMISS; DENYING MOTION FOR SANCTIONS (JFLC3)
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