Edward Demiraiakian v. Wells Fargo Bank, N.A. et al, No. 2:2015cv03138 - Document 12 (C.D. Cal. 2015)
Court Description: ORDER GRANTING MOTION TO DISMISS 6 by Judge Dean D. Pregerson: Plaintiffs complaint does not state a claim upon which relief can be granted. The complaint is therefore dismissed with leave to amend within 21 days. (lc). Modified on 7/23/2015 (lc).
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Edward Demiraiakian v. Wells Fargo Bank, N.A. et al Doc. 12 1 2 O 3 4 5 6 NO JS-6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 EDWARD DEMIRAIAKIAN, individual, 12 Plaintiff, 13 v. 14 15 16 17 WELLS FARGO BANK, N.A., a banking business corporation registered to do business in California and NDEX WEST, LLC, a corporation registered to do business in California, 18 19 20 Defendants. ___________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 15-03138 DDP (VBKx) ORDER GRANTING MOTION TO DISMISS [Dkt. No. 6] Presently before the Court is Defendants’ Motion to Dismiss 21 the complaint under Fed. R. Civ. P. 12(b)(6). 22 Having reviewed the complaint and Defendants’ submissions, the 23 Court GRANTS the motion and adopts the following order. 24 I. BACKGROUND 25 (Dkt. No. 6.) On February 13, 2015, Plaintiff filed an action against Wells 26 Fargo Bank N.A. and NDeX West LLC in Los Angeles Superior Court, 27 alleging that Defendants violated the California Homeowner Bill of 28 Rights (“HBOR”) while attempting to foreclose on real property Dockets.Justia.com 1 owned by Plaintiff. 2 removed the action to this court. 3 1.) 4 (Compl. 1, Dkt. No. 1, Ex. A.) Defendants (Notice of Removal, Dkt. No. Defendants recorded a notice of default in June 2013, 5 followed by a notice of trustee’s sale in September 2014. 6 ¶¶ 7-8; Req. for Judicial Notice (“RJN”), Exs. J, K.) 7 alleges Defendants violated HBOR by failing to contact the 8 Plaintiff at least 30 days before filing a notice of default to 9 discuss options to avoid foreclosure. (Compl. Plaintiff (Compl. ¶¶ 9-10.) 10 Plaintiff alleges Defendants failed to fulfill other HBOR 11 requirements, including requirements to provide Plaintiff with a 12 telephone number to the U.S. Department of Housing and Urban 13 Development, to attempt to contact Plaintiff by phone, automated 14 phone system, and certified mail, to provide a way for Plaintiff 15 to contact Defendants in a timely manner, and to post a prominent 16 link on Defendants’ Internet homepage. 17 (Id. ¶¶ 11-13.) Plaintiff alleges that Defendants also violated HBOR because 18 Defendants’ notice of default was missing a declaration that 19 Defendants had contacted Plaintiff about options to avoid 20 foreclosure. 21 the unpaid amount under the loan agreement if he obtains 22 financing. 23 (Id. ¶ 17.) Plaintiff alleges he is able to tender (Id. ¶ 20.) Plaintiff also alleges Defendants do not acknowledge that the 24 Plaintiff owns the property at issue, and Plaintiff is therefore 25 suing Defendants for Quiet Title. 26 (Id. ¶ 30.) Defendants have provided the Deed of Trust for the property 27 at issue, showing that Plaintiff did not represent that the 28 property was Plaintiff’s primary residence when Plaintiff entered 2 1 the mortgage agreement. 2 was originally recorded in July 2009 and a notice of sale was 3 recorded in October 2009. 4 (RJN, Ex. B at 14.) A notice of default (Id., Exs. D, E.) Plaintiff recorded two grant deeds in 2010, transferring a 5 20% interest in the property to the Plaintiff and three other 6 persons and then transferring an 80% interest to Plaintiff and a 7 20% interest to an entity named VA 1, Inc. 8 property was sold at a trustee’s sale in July 2010, but the 9 trustee’s deed was rescinded in August 2010. 10 (Id., Exs. F, G.) The (Id., Exs. H, I.) A new notice of default was recorded in June 2013, based on 11 the same default referenced in the 2009 notice of default. 12 Ex. J, p. 4.) 13 notice of default, stating that the Plaintiff was contacted at 14 least 30 days earlier to discuss options to avoid foreclosure. 15 (Id., Ex. H at 5.) 16 (Id., A declaration of compliance was attached to the When Plaintiff purchased the property at issue, he owned at 17 least three other properties. 18 properties have since been foreclosed. 19 Plaintiff alleges he owned, maintained, and used the property at 20 issue. 21 property was his principal residence. 22 (Compl. ¶ 26.) (Id., Exs. L, N, P.) Two of these (Id., Exs. M, O.) Plaintiff does not allege that the Plaintiff seeks damages, an injunction preventing Defendants 23 from foreclosing on Plaintiff’s property, an order quieting title, 24 and a judgment that the deed is void. 25 (Compl. 7.) On May 4, 2015, Defendants filed a motion to dismiss for 26 failure to state a claim. 27 Plaintiff has not filed an opposition. 28 /// (Def.’s Mot. Dismiss, Dkt. No. 6.) 3 1 2 II. LEGAL STANDARD Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, 3 a complaint is dismissed if it fails to state a claim for which 4 relief can be granted. 5 considering a 12(b)(6) motion, we assume the truth of the 6 plaintiff’s allegations and construe the allegations in the light 7 most favorable to the plaintiff. 8 447 (9th Cir. 2000). 9 must allege enough facts to state a claim that is “plausible on 10 its face.” 11 Fed. R. Civ. P. 12(b)(6). When Resnick v. Hayes, 213 F.3d 443, To survive a motion to dismiss, a complaint III. DISCUSSION Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 12 A. Judicial Noticeability 13 Defendants ask the Court to take judicial notice of several 14 records related to Plaintiff’s mortgage for the property at issue. 15 (RJN 2.) 16 records documenting the merger of the bank that originated 17 Plaintiff’s mortgage. 18 opposition to Defendants’ request. 19 Defendants also request judicial notice of government (Id.) Plaintiff has not filed an In a motion to dismiss, the Court generally reviews only the 20 contents of the complaint. Cervantes v. City of San Diego, 5 F.3d 21 1273, 1274 (9th Cir. 1993). However, the Court may also consider 22 documents outside the complaint if their authenticity is not 23 contested and the complaint necessarily depends on them. 24 v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005). 25 consider matters of public record in deciding a 12(b)(6) motion. 26 Mack v. South Bay Beer Distribs., 798 F.2d 1279, 1282 (9th Cir. 27 1986). 28 4 Knievel The Court may also 1 After reviewing the complaint and the documents for which 2 judicial notice has been requested, the Court takes notice of all 3 exhibits included in Defendants’ Request for Judicial Notice. 4 Each of these documents is either central to the complaint or is a 5 matter of public record. 6 authenticity of any of these documents. 7 consider these documents together with the complaint in deciding 8 the motion to dismiss. 9 Plaintiff has not contested the It is appropriate to B. Plaintiff’s Claims Under HBOR 10 Cal. Civ. Code §§ 2923.5 and 2923.55 protect rights 11 pertaining to certain mortgages, defaults, and foreclosures. 12 These sections protect only “owner occupied residential real 13 property,” defined as property used as the borrower’s principal 14 residence. 15 secured by the principal residence must be made for “personal, 16 family, or household purposes.” 17 Cal. Civ. Code § 2924.15(a). Further, the loan Id. The deed of trust for the property at issue shows that 18 Plaintiff did not assert that the property was owner occupied. 19 (See RNJ Ex. B, ¶ 32.) 20 principal residence was elsewhere. 21 in the complaint does Plaintiff allege that the property at issue 22 was his principal place of residence, or that the mortgage loan 23 was made for “personal, family, or household purposes.” 24 Other documents indicate that Plaintiff’s (See RNJ Exs. F, G.) Not even Plaintiff seeks relief under Cal. Civ. Code § 2923.5 for 25 property not protected by this law. 26 state a claim for which relief can be granted, and this portion of 27 Plaintiff’s complaint must be dismissed. 28 /// 5 Therefore, Plaintiff does not 1 C. Plaintiff’s Claim for Quiet Title 2 A claim to quiet title must include (1) a description of the 3 property at issue; (2) a statement of plaintiff’s title to the 4 property; (3) the adverse claims to the title for which 5 determination is sought; (4) the date for which the determination 6 of rights is sought; and (5) a prayer for determination of 7 plaintiff’s title against adverse claims. 8 761.020. 9 without first tendering the amount owed on the mortgage. 10 11 Cal. Code Civ. Proc. § A mortgagor cannot quiet title against a mortgagee Miller v. Provost, 26 Cal. App. 4th 1703, 1707 (1994). Plaintiff does not allege he has tendered his remaining 12 mortgage debt; Plaintiff has merely alleged that he will pay the 13 debt if he obtains financing. 14 only if the amount owed is given to the creditor. 15 Calhoun, 105 Cal. App. 4th 428, 439 (2003). 16 state a claim for quiet title without alleging tender of the debt. 17 Plaintiff also does not state the date as to which he seeks a 18 determination of rights. 19 claim for quiet title. 20 IV. CONCLUSION 21 (Compl. ¶ 20.) Tender is valid Nguyen v. Plaintiff cannot Plaintiff therefore does not state a Plaintiff’s complaint does not state a claim upon which 22 relief can be granted. The complaint is therefore dismissed with 23 leave to amend within 21 days. 24 IT IS SO ORDERED. 25 26 Dated: July 23, 2015 DEAN D. PREGERSON United States District Judge 27 28 6
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