-GSA Spence v. Wells Fargo Bank., N.A., No. 1:2010cv02057 - Document 20 (E.D. Cal. 2011)

Court Description: MEMORANDUM DECISION and ORDER regarding 10 Motion to Dismiss signed by Judge Oliver W. Wanger on 4/18/2011. (Proposed Order Filing Deadline: 4/25/2011; Amended Complaint due by 5/18/2011) (Figueroa, O)
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1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 8 1:10-cv-002057-OWW-GSA MICHELE A. SPENCE, 9 MEMORANDUM DECISION AND ORDER REGARDING MOTION TO DISMISS (Doc. 10) Plaintiffs, 10 v. 11 12 WELLS FARGO BANK, N.A., Defendant. 13 14 I. INTRODUCTION. 15 16 17 18 19 20 21 Plaintiff Michele A. Spence ( Plaintiff ) brings this action against Wells Fargo Bank, N.A. ( Defendant ). pro se. Currently before the court is Defendant s motion to dismiss. (Doc. 10). 16, 17). 26 27 (Docs. Defendant filed a reply to Plaintiffs opposition and request for judicial notice on April 9, 2011. (Doc. 19). II. FACTUAL BACKGROUND. 23 25 Plaintiff filed opposition to Defendant s motion and a request for judicial notice on March 17, 2011. 22 24 Plaintiff proceeds Although the allegations of the complaint are unclear, it appears that Plaintiff s claims arise out of Defendant s attempt to enforce a promissory note concerning real property. 2). (See Comp. at Plaintiff complains that Defendant has not presented a valid proof of claim because Defendant s are only in possession of a 28 1 1 photocopy of the promissory note, not the original. 2 According to the complaint, on July 23, 2010, Plaintiff sent 3 a letter to Defendant requesting the original wet ink signature as 4 well as the Deed of Trust, document assignments, and required 5 public recordings as evidence that [Defendant is] in fact a damaged 6 party and the true creditor to establish proof of claim within 30 7 days. 8 9 10 11 (Comp. at 5). Defendant did not respond. On September 24, 2010, Plaintiff sent a second letter to Defendant requesting proof of claim. Defendant again ignored Plaintiff s request for verification of the debt. Plaintiff requests have a standing declaration as to the whether promissory or not 12 Defendant s 13 Plaintiff contends that Defendant has no right to enforce the 14 promissory note because Defendant is not a note holder in due 15 course. note. III. LEGAL STANDARD. 16 17 enforce to Dismissal under Rule 12(b)(6) is appropriate where the 18 complaint lacks sufficient facts to support a cognizable legal 19 theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th 20 Cir.1990). To sufficiently state a claim to relief and survive a 21 12(b) (6) motion, the pleading does not need detailed factual 22 allegations but the [f]actual allegations must be enough to raise 23 a right to relief above the speculative level. Bell Atl. Corp. v. 24 Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). 25 Mere labels and conclusions or a formulaic recitation of the 26 elements of a cause of action will not do. Id. Rather, there must 27 be enough facts to state a claim to relief that is plausible on 28 its face. Id. at 570. In other words, the complaint must contain 2 1 sufficient factual matter, accepted as true, to state a claim to 2 relief that is plausible on its face. Ashcroft v. Iqbal, --- U.S. 3 ----, ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (internal 4 quotation marks omitted). 5 The Ninth Circuit has summarized the governing standard, in 6 light of Twombly and Iqbal, as follows: In sum, for a complaint to 7 survive a motion to dismiss, the nonconclusory factual content, and 8 reasonable 9 suggestive of a claim entitling the plaintiff to relief. Moss v. 10 U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir.2009) (internal 11 quotation marks omitted). Apart from factual insufficiency, a 12 complaint is also subject to dismissal under Rule 12(b)(6) where it 13 lacks a cognizable legal theory, Balistreri, 901 F.2d at 699, or 14 where the allegations on their face show that relief is barred 15 for some legal reason, Jones v. Bock, 549 U.S. 199, 215, 127 S.Ct. 16 910, 166 L.Ed.2d 798 (2007). inferences from that content, must be plausibly 17 In deciding whether to grant a motion to dismiss, the court 18 must accept as true all well-pleaded factual allegations in the 19 pleading under attack. Iqbal, 129 S.Ct. at 1950. A court is not, 20 however, required to accept as true allegations that are merely 21 conclusory, 22 inferences. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 23 (9th Cir.2001). When ruling on a Rule 12(b)(6) motion to dismiss, 24 if a district court considers evidence outside the pleadings, it 25 must normally convert the 12(b)(6) motion into a Rule 56 motion for 26 summary 27 opportunity to respond. United States v. Ritchie, 342 F.3d 903, 28 907 court (9th unwarranted judgment, and Cir.2003). A deductions it must of give may, 3 fact, the or unreasonable nonmoving however, party consider an certain 1 materials-documents attached to the complaint, documents 2 incorporated by reference in the complaint, or matters of judicial 3 notice-without converting the motion to dismiss into a motion for 4 summary judgment. Id. at 908. IV. DISCUSSION. 5 6 Plaintiff s first cause of action seeks a declaration 7 regarding whether or not Defendant has standing to enforce the 8 promissory note. Plaintiff s second cause of action asserts theft 9 of public funds. Plaintiff s third cause of action is for breach 10 of contract. Plaintiff s complaint fails to comply with federal 11 pleading standards. The complaint does not contain sufficient non- 12 conclusory factual allegations to give rise to any cognizable cause 13 of action. 14 Plaintiff s first cause of action fails because it appears to 15 be based on the discredited legal theory that only a note holder 16 in due course has standing to enforce a promissory note.1 17 e.g., Wood v. Aegis Wholesale Corp., 2009 U.S. Dist. LEXIS 57151, 18 *14 (E.D. Cal. July 2, 2009) (citing In re Golden Plan of Cal., 19 Inc., 829 F.2d 705, 708-11 (9th Cir.1986) (when a mortgage is sold, 20 physical transfer of the note is not required). 21 invocation of the California Commercial Code is of no avail, as it 22 has 23 financing. 24 Inc., 2010 U.S. Dist. LEXIS 17415, 2010 WL 716311 at *2 (E.D.Cal., 25 Feb. 26, 2010) (rejecting application of California Commercial Code no application in the instant context of See, Plaintiff s real property See, e.g., Blanco v. American Home Mortgage Servicing, 26 27 28 1 Plaintiff also references qualified written requests throughout the complaint, but it is unclear whether Plaintiff seeks to assert any statutory claims. 4 1 section 3301 mortgage context). 2 Plaintiff s second cause of action is unintelligible. Inter 3 alia, Plaintiff fails to identify what public funds Defendant 4 obtained. 5 over a private loan transaction. 6 that would give rise to standing to complain about the source of 7 the loan funds. 8 9 From the face of the complaint it appears the dispute is Plaintiff has alleged no facts Plaintiff s third cause of action for breach of contract does not set forth the requisite elements under California law. The 10 standard elements of a breach of contract claim are: (1) the 11 existence of a contract, (2) plaintiff's performance or excuse for 12 nonperformance, (3) defendant's breach, and (4) damage to plaintiff 13 therefrom. E.g., Abdelhamid v. Fire Ins. Exch., 182 Cal.App.4th 14 990, 999 (2010). 15 Plaintiff s allegations are unclear. Plaintiff alleges that 16 [the] note like most others has been sold and monetized [and thus] 17 the Lender has received payment of all sums secured. (Complaint 18 at 7). Even if this is true, there is no fact alleged that makes 19 securitization a matter of legal consequence. 20 Plaintiff s claim is that Defendant s attempt to foreclose on her 21 property despite the fact that the note was sold to a third party 22 somehow breaches her loan contract. However, inter alia, Plaintiff 23 does not allege performance or excuse for nonperformance by her of 24 her obligations under the contract. 25 It appears that Plaintiff s claims are each DISMISSED, without prejudice. One 26 opoportunity will be provided for amendment of the complaint. 27 /// 28 /// 5 ORDER 1 2 For reasons stated, IT IS ORDERED: 3 1) Each of Plaintiff s claims is DISMISSED, without prejudice; 4 2) Plaintiff shall file and amended complaint within thirty 5 days of electronic service of this decision. 6 file responsive pleading within twenty days of service of the 7 amended complaint; and 8 3) Defendant shall file a form of order consistent with this 9 memorandum decision within five days of electronic service of 10 Defendant shall this decision. 11 IT IS SO ORDERED. 12 Dated: hkh80h April 18, 2011 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6