Roger Otero et al v. Federal National Mortgage Association et al, No. 2:2012cv01375 - Document 14 (C.D. Cal. 2012)
Court Description: ORDER DENYING PLAINTIFFS MOTION TO REMAND 8 AND GRANTING DFEFENDANTS MOTION TO DISMISS 5 by Judge Dean D. Pregerson. ( MD JS-6. Case Terminated ) (lc). Modified on 11/9/2012 (lc).
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Roger Otero et al v. Federal National Mortgage Association et al Doc. 14 1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ROGER OTERO, an individual, et al., 12 Plaintiff, 13 v. 14 15 FEDERAL NATIONAL MORTGAGE ASSOCIATION, et al., 16 ) ) ) ) ) ) ) ) ) ) Case No. CV 12-01375 DDP (JEMx) ORDER DENYING PLAINTIFFS’ MOTION TO REMAND AND GRANTING DFEFENDANT’S MOTION TO DISMISS Defendants. ___________________________ [Dkt. Nos. 5, 8] 17 18 Presently before the court is Defendant Federal National 19 Mortgage Association (“Fannie Mae”)’s Motion to Dismiss. 20 considered the submissions of the parties 21 I. 22 Having Background In April 2007, Plaintiffs obtained a home loan from Bank of 23 America and executed a promissory note in favor of Bank of America, 24 secured by a Deed of Trust, under which PRLAP, Inc. was named 25 Trustee and Bank of America was the beneficiary. 26 7, Ex. A.)1 (Complaint ¶¶ 5- 27 28 1 Though the complaint alleges that Plaintiffs obtained a loan in July 2009, the Deed of Trust, attached as an exhibit to the complaint, is dated April 12, 2007. Dockets.Justia.com 1 Plaintiffs were unable to make payments on the loan, and on 2 June 9, 2009, Defendant NDEX West, LLC (NDEX) recorded a Notice of 3 Default as agent for beneficiary Bank of America. 4 Judicial Notice, Ex. B).2 5 substituted NDEX as Trustee. 6 NDEX recorded a Notice of Trustee’s Sale. 7 Notice of Trustee’s Sale did not list the beneficiary of the Deed 8 of Trust. 9 (Request for On August 13, 2009, Bank of America (RJN, Ex. C.) On November 2, 2010, (RJN, Ex. D.) The Fannie Mae was the highest bidder at the foreclosure sale, 10 which occurred on April 11, 2011. 11 three months after the sale but before the recording of the 12 Trustee’s Deed Upon Sale, Bank of America assigned its interest in 13 the Deed of Trust to Fannie Mae. 14 July 21, NDEX recorded a Trustee’s Deed Upon Sale in favor of 15 Fannie Mae. 16 stated “The Grantee herein WAS the foreclosing beneficiary.” 17 (RJN, Ex. E). (RJN, Ex. E). (RJN, Ex. F.) On July 11, 2011, Ten days later, on The Trustee’s Deed Upon Sale, however, (Id.) On December 29, 2011, Plaintiffs filed a complaint in state 18 court alleging causes of action for (1) wrongful foreclosure, (2) 19 set aside trustee sale, (3) cancel trustee’s deed, (4) quiet title, 20 (5) breach of contract, (6) violation of [California] Business and 21 Professions Code § 1572, and (7) intentional misrepresentation. 22 Fannie Mae subsequently removed to this court, and now moves to 23 dismiss the entire complaint. 24 to state court. 25 II. Plaintiffs move to remand this case Legal Standard 26 2 27 28 The exhibits to Plaintiffs’ complaint are practically illegible. Where possible, the court therefore cites to identical documents identified in Defendant’s Request for Judicial Notice, which is granted. The court 2 1 A complaint will survive a motion to dismiss when it contains 2 “sufficient factual matter, accepted as true, to state a claim to 3 relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 4 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 5 570 (2007)). 6 “accept as true all allegations of material fact and must construe 7 those facts in the light most favorable to the plaintiff.” Resnick 8 v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). 9 need not include “detailed factual allegations,” it must offer When considering a Rule 12(b)(6) motion, a court must Although a complaint 10 “more than an unadorned, the-defendant-unlawfully-harmed-me 11 accusation.” 12 allegations that are no more than a statement of a legal conclusion 13 “are not entitled to the assumption of truth.” Id. at 679. 14 other words, a pleading that merely offers “labels and 15 conclusions,” a “formulaic recitation of the elements,” or “naked 16 assertions” will not be sufficient to state a claim upon which 17 relief can be granted. 18 quotation marks omitted). 19 Iqbal, 556 U.S. at 678. Conclusory allegations or In Id. at 678 (citations and internal “When there are well-pleaded factual allegations, a court should 20 assume their veracity and then determine whether they plausibly 21 give rise to an entitlement of relief.” Id. at 679. 22 must allege “plausible grounds to infer” that their claims rise 23 “above the speculative level.” Twombly, 550 U.S. at 555. 24 “Determining whether a complaint states a plausible claim for 25 relief” is a “context-specific task that requires the reviewing 26 court to draw on its judicial experience and common sense.” 27 556 U.S. at 679. 28 3 Plaintiffs Iqbal, 1 A defendant may remove a case from state court to federal 2 court if the case could have originally been filed in federal 3 court. 4 F.2d 787, 789 (9th Cir. 1977). 5 original jurisdiction of all civil actions where the matter in 6 controversy exceeds the sum or value of $75,000 . . . and is 7 between . . . citizens of different States[.]” 8 § 1332(a)(1). 9 removal jurisdiction, and federal jurisdiction must be rejected if 28 U.S.C. § 1441(a); see also Snow v. Ford Motor Co., 561 “The district courts shall have 28 U.S.C. The removal statute is strictly construed against 10 any doubt exists as to the propriety of removal. 11 Inc., 980 F.2d 564, 566 (9th Cir. 1992). 12 III. Discussion 13 A. 14 This case was properly removed to this court. Gaus v. Miles, Plaintiffs’ Motion to Remand Plaintiffs 15 argue that the parties are not diverse because Fannie Mae has 16 several different regional offices. 17 argument ignores the fact that Fannie Mae is a citizen of 18 Washington, D.C., where it maintains its headquarters and “nerve 19 center.” 20 While Plaintiffs argue that they only seek to cancel the Trustee’s 21 Deed Upon Sale, the complaint explicitly seeks to quiet title to 22 the property at issue, which is valued far above the jurisdictional 23 minimum. 24 RMW, 2011 WL 6304152 at *3 (N.D. Cal. Dec. 16, 2011). 25 Motion to Remand is therefore denied. (Remand Mot. at 5.) This Hertz Corp. v. Friend, 130 S.Ct. 1181, 1192 (2010). See Rodriguez v. Wells Fargo Bank, N.A., No. 11-cv-05172 26 27 28 4 Plaintiffs’ 1 2 B. Defendant’s Motion to Dismiss Fannie Mae argues that Plaintiffs may not bring any 3 foreclosure-related claims absent a viable tender of the amount of 4 Plaintiffs’ indebtedness. 5 performance made with the intent to extinguish the obligation.” 6 Arnolds Mgmt. Corp. v. Eischen, 158 Cal. App.3d 575, 580 (1984) 7 (citing Cal. Civ. Code, § 1485). “When a debtor is in default of a 8 home mortgage loan, and a foreclosure is either pending or has 9 taken place, the debtor must allege a credible tender of the amount (Mot. at 3.) “A tender is an offer of 10 of the secured debt to maintain any cause of action for wrongful 11 foreclosure.” 12 Cal. 2009). 13 upon to “order a useless act performed” in cases where plaintiffs 14 would be unable, even under proper sale procedures, to redeem a 15 property. 16 Cal.App.3d 1018, 1021-22 (1989). 17 Alicea v. GE Money Bank, 2009 WL 2136969 *3 (N.D. The tender requirement spares courts from being called FPCI RE-HAB 01 v. E & G Investments, Ltd., 207 Plaintiffs appear to argue that an exception to the tender 18 rule applies here. (Opp. at 7-8.) Indeed, an equitable exception 19 may apply where it would be inequitable to require tender. 20 v. Rice, 55 Cal. App. 4th 413, 424 (1997). 21 equitable exception to the tender rule where plaintiffs contest the 22 validity of a foreclosure prior to the foreclosure sale. 23 e.g., Tamburri v. Suntrust Mortgage, Inc., 2011 WL 6294472 *3, 5 24 (N.D. Cal. December 15, 2011); Sacchi v. Mortgage Electronic 25 Registration Systems, Inc., 2011 WL 2533029 *9-10 (C.D. Cal. June 26 24, 2011). 27 foreclosure situations such as this one. Onofrio Courts have applied the See, The exception does not apply, however, in post- 28 5 See, e.g., Rowen v. Bank 1 of America, N.A., No. CV 12-1762 CAS, 2012 WL 2160632 at *8 (C.D. 2 Cal. 2012). 3 Plaintiffs further argue that they have sufficiently alleged 4 tender. (Opp. at 7.) The Complaint alleges that “Plaintiffs are 5 ready, willing and able to pay the monthly mortgage payments, given 6 but not limited to financing,” and that they have satisfied any 7 tender requirement “in that [Plaintiffs] are ready and willing to 8 submit an application for a loan modification in order to work out 9 some sort of agreement with the bank to allow them to make more 10 affordable payments . . . . 11 rule, however, requires that Plaintiffs offer to pay the full 12 amount of the debt. 13 Having offered only to make resumed or reduced monthly payments, 14 Plaintiffs have not satisfied the tender rule. 15 Plaintiff’s causes of action are related to their wrongful 16 disclosure claims, the complaint must be dismissed.3 17 IV. 18 (Complaint ¶¶ 15, 19.) The tender Arnolds Mgmt., 158 Cal. App. 3d at 578. Because all of Id. at 579. Conclusion For the reasons stated above, Plaintiffs’ Motion to Remand is 19 DENIED. Defendant Fannie Mae’s Motion to Dismiss is GRANTED. 20 IT IS SO ORDERED. 21 22 Dated: November 9, 2012 DEAN D. PREGERSON United States District Judge 23 24 25 26 27 28 3 Plaintiff’s first cause of action for wrongful foreclosure makes reference to California Civil Code § 2923.5. Tender is not required when plaintiffs bring suit under California Civil Code section 2923.5. Das v. WMC Mortgage Corp., No. C10-0650 PVT, 2010 WL 4393885 *2-3 (N.D. Cal. Oct. 29, 2010). There is, however, no post-sale remedy for violations of California Code Section 2923.5. Mabry v. Superior Court, 185 Cal. App. 4th 208, 235 (2010). 6
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