Torres et al v. Wells Fargo Home Mortgage, Inc., No. 4:2010cv04761 - Document 21 (N.D. Cal. 2011)

Court Description: ORDER GRANTING DEFENDANTS 8 MOTION TO DISMISS AND DENYING PLAINTIFFS 18 MOTION FOR AN EXTENSION OF TIME TO FILE AN AMENDED COMPLAINT. Case Management Statement due by 3/15/2011. Case Management Conference set for 3/22/2011 02:00 PM. Signed by Judge Claudia Wilken on 1/4/2011. (ndr, COURT STAFF) (Filed on 1/4/2011)
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Torres et al v. Wells Fargo Home Mortgage, Inc. Doc. 21 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 Plaintiffs, 5 6 7 No. C 10-04761 CW ELOISA TORRES and WESLEY V. HARRIS, v. WELLS FARGO HOME MORTGAGE, INC., Defendant. 8 / 9 United States District Court For the Northern District of California 10 ORDER GRANTING DEFENDANT’S MOTION TO DISMISS AND DENYING PLAINTIFFS’ MOTION FOR AN EXTENSION OF TIME TO FILE AN AMENDED COMPLAINT (Docket Nos. 8 and 18) 11 Defendant Wells Fargo Bank, N.A., sued as Wells Fargo Home 12 Mortgage, Inc., moves to dismiss the complaint of pro se Plaintiffs 13 Eloisa Torres and Wesley V. Harris. 14 After briefing closed on Wells Fargo’s motion to dismiss, 15 Plaintiffs filed a motion for an extension of forty-five days to 16 file an amended complaint. 17 on the papers. 18 parties, the Court GRANTS Wells Fargo’s motion to dismiss and 19 DENIES Plaintiffs’ motion for an extension of time. 20 21 Plaintiffs oppose the motion. The motions were taken under submission Having considered the papers submitted by the BACKGROUND Plaintiffs’ complaint is composed, for the most part, of 22 general allegations about the mortgage industry.1 23 specific allegation is that Plaintiffs “entered into a consumer 24 contract for the refinance of a primary residence located at 15561 The only 25 26 1 27 28 Plaintiffs’ complaint is largely identical to the pleadings filed in Padilla v. One West Bank, Case No. C 10-4080 CW; Blackwell v. Wells Fargo Home Mortgage, Case No. C 10-4917 JF; and Bennett v. Suntrust Mortgage, Inc., Case No. 10-3375 JF. Dockets.Justia.com 1 Oceanside Way San Leandro CA 94579.” 2 alleges that “Defendants, acting in concert and collusion with 3 others, induced Petitioner to enter into a predatory loan agreement 4 with Defendant.”2 5 played in the violations that they allege in their complaint. 6 Compl. 1. The complaint then Plaintiffs do not identify the role Wells Fargo The following information is taken from documents tendered by 7 Wells Fargo.3 8 loan from Provident Funding Associates, L.P. 9 Judicial Notice (RJN), Ex. A, 1. On June 26, 2006, Plaintiffs obtained a $600,000 Def.’s Request for The loan was secured by a deed of United States District Court For the Northern District of California 10 trust (DOT) that named First American Title Company as trustee and 11 Mortgage Electronic Registration Systems, Inc. (MERS) as 12 beneficiary. 13 Way property to First American Title Company in trust with a power 14 of sale. 15 Id. Under the DOT, Plaintiffs granted the Oceanside Id. at 3. On February 1, 2010, a notice of default and election to sell 16 under the DOT was recorded. 17 that, as of January 29, 2010, Plaintiffs were $57,751.43 in arrears 18 on their mortgage. 19 the notice of default was signed by Wells Fargo’s Vice President of 20 Loan Documentation. 21 Fargo played in Plaintiffs’ loan. 22 RJN, Ex. B. Id. at 1. The notice indicated A declaration filed in support of The declaration did not state the role Wells On April 6, 2010, MERS substituted First American LoanStar 23 24 25 2 Although Plaintiffs’ allegations speak of “Defendants,” they name only one Defendant, Wells Fargo Home Mortgage, Inc. 3 27 Plaintiffs do not oppose Wells Fargo’s request for judicial notice of documents recorded in the Alameda County Clerk-Recorder’s Office that are related to their mortgage. Accordingly, the Court GRANTS Wells Fargo’s request. 28 2 26 1 Trustee Services LLC for First American Title Company as trustee on 2 the DOT. 3 beneficial interest in the DOT to HSBC Bank USA, N.A., as Trustee 4 for Wells Fargo Asset Securities Corporation Mortgage Pass-Through 5 Certificates Series 2006-14 (HSBC Bank). RJN, Ex. C at 1. On April 29, 2010, MERS assigned its RJN, Ex. D, 1. 6 On May 11, 2010, First American LoanStar recorded a notice of 7 trustee’s sale, which stated that the Oceanside Way property would 8 be sold at a public auction on June 1, 2010. 9 declaration accompanying the notice was signed by Marsha Graham, United States District Court For the Northern District of California 10 RJN, Ex. E. one of Wells Fargo’s assistant vice presidents. 11 A Id. at 2. The Oceanside Way property was sold on September 17, 2010, not 12 on June 1, 2010 as indicated in the notice of trustee’s sale. 13 Ex. F, 2. 14 1. HSBC Bank purchased the Oceanside Way property. RJN, Id. at 15 In the “Causes of Action” section of their complaint, 16 Plaintiffs assert the following claims: (1) breach of fiduciary 17 duty; (2) negligence and negligence per se; (3) fraud; (4) breach 18 of the covenant of good faith and fair dealing; (5) violation of 19 the Truth in Lending Act (TILA), 15 U.S.C. §§ 1601 et seq.; and 20 (6) intentional infliction of emotional distress. 21 damages in the amount of $934,442.92, punitive damages in the 22 amount of $2,803,328.76, rescission of the loan contract, quiet 23 title to the Oceanside Way property and an injunction enjoining 24 Wells Fargo from engaging in fraudulent, deceptive, predatory and 25 26 27 28 3 Plaintiffs seek 1 negligent acts.4 2 3 LEGAL STANDARD A complaint must contain a “short and plain statement of the 4 claim showing that the pleader is entitled to relief.” 5 Civ. P. 8(a). 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 of 8 a legally cognizable claim and the grounds on which it rests. 9 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Fed. R. When considering a motion to dismiss under Rule In United States District Court For the Northern District of California 10 considering whether the complaint is sufficient to state a claim, 11 the court will take all material allegations as true and construe 12 them in the light most favorable to the plaintiff. 13 v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). 14 principle is inapplicable to legal conclusions; “threadbare 15 recitals of the elements of a cause of action, supported by mere 16 conclusory statements,” are not taken as true. 17 ___ U.S. ___, 129 S. Ct. 1937, 1949-50 (2009) (citing Twombly, 550 18 U.S. at 555). 19 NL Indus., Inc. However, this Ashcroft v. Iqbal, When granting a motion to dismiss, the court is generally 20 required to grant the plaintiff leave to amend, even if no request 21 to amend the pleading was made, unless amendment would be futile. 22 Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 23 F.2d 242, 246-47 (9th Cir. 1990). 24 would be futile, the court examines whether the complaint could be In determining whether amendment 25 26 27 28 4 Plaintiffs allude to other statutes in the “General Allegations” section of their complaint. However, only these six causes of action are listed after the heading, “Causes of Action.” 4 1 amended to cure the defect requiring dismissal "without 2 contradicting any of the allegations of [the] original complaint." 3 Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir. 1990). 4 DISCUSSION 5 Plaintiffs’ opposition appears to be a form response, largely 6 identical to that filed in Padilla, and fails to address arguments 7 raised in Wells Fargo’s motion to dismiss. 8 their complaint, also does not explain Wells Fargo’s role with 9 respect to their loan. Their opposition, like However, Plaintiffs address a claim for United States District Court For the Northern District of California 10 violations of the Real Estate Settlement Procedures Act (RESPA), 12 11 U.S.C. §§ 2601, et seq. 12 such a claim, the Court considers and dismisses it below. 13 I. Although their complaint does not contain Set Aside of Foreclosure Sale 14 Wells Fargo argues that Plaintiffs’ entire complaint must be 15 dismissed because they lack standing to challenge the foreclosure 16 sale. 17 This argument sweeps too broadly. It is not evident that Plaintiffs are challenging the 18 September, 2010 sale of the Oceanside Way property. Even if they 19 are, they have not offered a basis to set it aside. A plaintiff 20 seeking to set aside a foreclosure sale must first allege tender of 21 the amount of the secured indebtedness. 22 Bank, 43 Cal. App. 4th 1101, 1109 (1996) (citing FPCI RE-HAB 01 v. 23 E & G Investments, Ltd., 207 Cal. App. 3d 1018, 1021-22 (1989)); 24 Smith v. Wachovia, 2009 WL 1948829, at *3 (N.D. Cal.). 25 pleading tender or the ability to offer tender, a plaintiff cannot 26 state a cause of action to set aside a foreclosure sale. 27 v. Am. Savings & Loan Ass’n, 15 Cal. App. 3d 112, 117 (1971) 28 5 Abdallah v. United Savings Without Karlsen 1 (citing Copsey v. Sacramento Bank, 133 Cal. 659, 662 (1901)); 2 Smith, 2009 WL 1948829, at *3 (citing Karlsen). 3 Plaintiffs have not alleged facts that warrant setting aside 4 the foreclosure sale. 5 tender or the current ability to offer tender. 6 that they seek to set aside the foreclosure sale, Plaintiffs offer 7 no basis to do so. 8 their entire complaint. 9 II. United States District Court For the Northern District of California 10 Even if they had, Plaintiffs do not allege Thus, to the extent This does not, however, warrant dismissal of Quiet Title Plaintiffs ask that title in the Oceanside Way property be 11 quieted in their favor. 12 California law, a plaintiff’s complaint must contain: (1) a 13 description of the property; (2) the title of the plaintiff and its 14 basis; (3) the adverse claims to that title; (4) the date as of 15 which the determination is sought; and (5) a prayer for relief of 16 quiet title. 17 To state a claim for quiet title under Cal. Civ. Proc. Code § 761.020. Plaintiffs do not allege that Wells Fargo has asserted any 18 adverse claim to title in the Oceanside Way property. 19 opposition discusses a lender’s rights with respect to the 20 property, but they do not aver that Wells Fargo was their lender; 21 as noted above, Provident Funding was named as Plaintiffs’ lender 22 in the DOT. 23 Plaintiffs’ Even if Wells Fargo asserted a claim against the property, 24 Plaintiffs have failed to plead facts that tend to show that they 25 have a colorable claim to the property. 26 assert that they still hold title because no lender ever presented 27 them with the original promissory note and, as a result, the 28 6 Plaintiffs appear to 1 foreclosure sale was improper. 2 requirement that a trustee produce the original promissory note 3 prior to a non-judicial foreclosure sale. 4 Countrywide Home Loans, Inc., 640 F. Supp. 2d 1177, 1186 (N.D. Cal. 5 2009); Smith v. Wachovia, 2009 WL 1948829, at *3 (N.D. Cal.); Neal 6 v. Juarez, 2007 WL 2140640, *8 (S.D. Cal.). 7 sections 2924 through 2924k “provide a comprehensive framework for 8 the regulation of a non-judicial foreclosure sale pursuant to a 9 power of sale contained in a deed of trust.” However, in California, there is no See, e.g., Pantoja v. California Civil Code Knapp v. Doherty, 123 United States District Court For the Northern District of California 10 Cal. App. 4th 76, 86 (2004) (quoting Moeller v. Lien, 25 Cal. App. 11 4th 822, 830 (1994)). 12 process as follows: 13 14 15 16 17 18 Knapp explains the non-judicial foreclosure Upon default by the trustor [under a deed of trust containing a power of sale], the beneficiary may declare a default and proceed with a nonjudicial foreclosure sale. The foreclosure process is commenced by the recording of a notice of default and election to sell by the trustee. After the notice of default is recorded, the trustee must wait three calendar months before proceeding with the sale. After the 3-month period has elapsed, a notice of sale must be published, posted and mailed 20 days before the sale and recorded 14 days before the sale. 19 Knapp, 123 Cal. App. 4th at 86 (citation omitted). 20 conducted nonjudicial foreclosure sale constitutes a final 21 adjudication of the rights of the borrower and lender.” 22 Plaintiffs have not alleged actionable irregularities in the non- 23 judicial foreclosure sale. 24 2010 sale resolved ownership rights to the property. 25 “A properly Id. at 87. Thus, it appears that the September, Plaintiffs have not alleged that Wells Fargo has asserted a 26 claim to the property, nor have they have alleged facts tending to 27 show that they have a colorable claim of title. 28 7 Accordingly, 1 Plaintiffs’ request to quiet title is dismissed with leave to 2 amend. 3 III. Breach of Fiduciary Duty 4 Absent special circumstances, a loan transaction, like all 5 ordinary banking transactions, does not establish a fiduciary 6 relationship between the borrower and lender. 7 Superior Court, 145 Cal. App. 4th 453, 466 (2006); see also Price 8 v. Wells Fargo Bank, 213 Cal. App. 3d 465, 476 (1989) (“A debt is 9 not a trust and there is not a fiduciary relation between debtor Oaks Mgmt. Corp. v. United States District Court For the Northern District of California 10 and creditor as such. 11 greater clarity to the relationship between a bank and its loan 12 customers.”). 13 borrower a duty of care. 14 213 Cal. App. 3d 1089, 1095-96 (1991). 15 The same principle should apply with even Generally, a financial institution does not owe a Nymark v. Heart Fed. Sav. & Loan Ass’n, Plaintiffs did not respond to Wells Fargo’s argument that they 16 have not alleged facts suggesting that it was their fiduciary. 17 Instead, in their opposition, Plaintiffs complain about their 18 lender’s role in their original loan transaction. 19 already noted, Plaintiffs’ DOT names Provident Funding, not Wells 20 Fargo, as their lender. 21 Plaintiffs do not allege facts to suggest that there were special 22 circumstances surrounding the loan transaction that gave rise to a 23 fiduciary relationship. 24 However, as Even if Wells Fargo were their lender, Accordingly, Plaintiffs’ breach of fiduciary duty claim is 25 dismissed. 26 that support their assertion that Wells Fargo was their fiduciary. Plaintiffs are granted leave to amend to allege facts 27 28 8 1 IV. 2 3 4 Negligence and Negligence Per Se Plaintiffs plead claims for negligence and “negligence per se.” To state a claim for negligence, a plaintiff must allege 5 (1) the defendant’s legal duty of care to the plaintiff; (2) the 6 defendant’s breach of duty; (3) injury to the plaintiff as a result 7 of the breach; and (4) damage to the plaintiff. 8 Beach City Sch. Dist., 22 Cal. 3d 508, 513 (1978). 9 of care may be of two general types: (a) the duty of a person to Hoyem v. Manhattan “The legal duty United States District Court For the Northern District of California 10 use ordinary care in activities from which harm might reasonably be 11 anticipated, or (b) an affirmative duty where the person occupies a 12 particular relationship to others.” 13 Transit Dist., 57 Cal. App. 4th 1011, 1016-17 (1997). 14 general rule, a financial institution owes no duty of care to a 15 borrower when the institution’s involvement in the loan transaction 16 does not exceed the scope of its conventional role as a mere lender 17 of money.” 18 World Savings & Loan Ass’n, 57 Cal. App. 3d 724, 732 (1976) 19 (holding no duty of care owed by lender to borrower to ensure 20 adequacy of construction loan); Wagner v. Benson, 101 Cal. App. 3d 21 27, 35 (1980) (finding no duty owed by lender to borrower where 22 lender is not involved extensively in borrower’s business). 23 Courts, including this one, have applied this rule to loan 24 servicers. 25 Inc., 2009 WL 1455491, *7 (N.D. Cal.); Marks v. Ocwen Loan 26 Servicing, 2008 WL 344210, *6 (N.D. Cal.). McGettigan v. Bay Area Rapid “[A]s a Nymark, 231 Cal. App. 3d at 1095; see also Kinner v. See, e.g., Hendrickson v. Popular Mortg. Servicing, 27 Negligence per se is not a cause of action, but rather an 28 9 1 evidentiary presumption that a party failed to exercise due care if 2 (1) He violated a statute, ordinance, or regulation of a public entity; 3 (2) The violation proximately caused death or injury to person or property; 4 5 (3) The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and 6 7 8 (4) The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted. 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Cal. Evid. Code § 669. Plaintiffs allege that Wells Fargo “owed a general duty of care . . . to perform due diligence as to” their loan and to avoid marketing loans they knew that borrowers could not afford. 28-29. Compl. In their opposition, they also assert that Wells Fargo also had a duty of care under TILA, RESPA, the Home Ownership and Equity Protection Act (HOEPA) and related regulations. The allegations supporting their negligence claim focus on the original loan agreement, which they executed in June, 2006. However, Plaintiffs do not allege that Wells Fargo was involved in the original loan transaction, nor do any of the proffered loan documents suggest that it was. Therefore, Wells Fargo could not have undertaken any of the improper acts alleged in this cause of action. Further, Wells Fargo notes that Plaintiffs’ negligence claim was not filed within two years of the date of the alleged injury, as required by the statute of limitations. § 335.1. Cal. Civ. Proc. Code Plaintiffs did not respond directly to this argument. 10 1 Instead, they include in their opposition a general section on 2 “Statute of Limitations / Equitable Tolling,” in which they 3 complain that they were victims of fraud and ask that all 4 limitations periods be equitably tolled. 5 Plaintiffs’ arguments appear to implicate the doctrine of 6 equitable estoppel, not equitable tolling. 7 California Supreme Court, 8 13 Equitable tolling and equitable estoppel are distinct doctrines. Tolling, strictly speaking, is concerned with the point at which the limitations period begins to run and with the circumstances in which the running of the limitations period may be suspended. Equitable estoppel, however, comes into play only after the limitations period has run and addresses the circumstances in which a party will be estopped from asserting the statute of limitations as a defense to an admittedly untimely action because his conduct has induced another into forbearing suit within the applicable limitations period. 14 Lantzy v. Centex Homes, 31 Cal. 4th 363, 383 (2003) (citations and 15 internal quotation and editing marks omitted). 16 a party from filing suit could justify estopping a defendant from 17 asserting a statute of limitations defense. 18 Plaintiffs fail to plead that Wells Fargo engaged in any fraud that 19 precluded them from filing suit. 20 warranted. 9 10 United States District Court For the Northern District of California As explained by the 11 12 21 Fraud that prevents Id. at 384. However, Thus, equitable estoppel is not Plaintiffs have not stated a claim for negligence and are not 22 entitled to a presumption of negligence per se. 23 negligence claim appears to be time-barred. 24 negligence claim is dismissed. 25 amend to plead facts that support a negligence claim that is not 26 barred by the two-year statute of limitations. Accordingly, their Plaintiffs are granted leave to 27 28 Further, their 11 1 V. 2 Fraud In this cause of action, Plaintiffs allege that unnamed 3 “Agents” made misrepresentations with the intention of inducing 4 Plaintiffs to act in reliance on them. 5 Because all of Plaintiffs’ allegations of fraud address the 6 loan origination and closing procedures, they do not implicate 7 Wells Fargo, which does not appear to have been involved in these 8 transactions. 9 this claim. Therefore, Wells Fargo is not the proper party on Also, Plaintiffs’ allegations lack the specificity United States District Court For the Northern District of California 10 required under Federal Rule of Civil Procedure 9(b) for all claims 11 sounding in fraud. 12 fraud or mistake, the circumstances constituting fraud or mistake 13 shall be stated with particularity.”); Wool v. Tandem Computers, 14 Inc., 818 F.2d 1433, 1439 (9th Cir. 1987) (allegations must include 15 the time, place and nature of the alleged fraudulent activities). 16 Therefore, Wells Fargo’s motion to dismiss this claim is granted. 17 Plaintiffs are granted leave to amend to plead specific facts, 18 including the time, place and nature of Wells Fargo’s alleged 19 fraudulent conduct. 20 VI. 21 See Fed. R. Civ. P. 9(b) (“In all averments of Breach of the Covenant of Good Faith and Fair Dealing Under California law, “[t]he prerequisite for any action for 22 breach of the implied covenant of good faith and fair dealing is 23 the existence of a contractual relationship between the parties, 24 since the covenant is an implied term in the contract.” 25 City & County of S.F., 225 Cal. App. 3d 38, 49 (1990). 26 27 28 Smith v. Plaintiffs have not alleged that they have any direct contractual relationship with Wells Fargo. 12 In their opposition, 1 Plaintiffs do not address Wells Fargo’s argument on this point. 2 Therefore, Plaintiffs’ claim for breach of the covenant of good 3 faith and fair dealing is dismissed. 4 amend to plead the nature of their contract with Wells Fargo, if 5 any, and how it was breached. 6 VII. Truth in Lending Act 7 They are granted leave to TILA was enacted “to assure a meaningful disclosure of credit 8 terms so that the consumer will be able to compare more readily the 9 various credit terms available to him and avoid the uninformed use United States District Court For the Northern District of California 10 of credit." 11 Cir. 2003) (citing 15 U.S.C. § 1601(a)). 12 are not made, the consumer may obtain damages or seek to rescind 13 the loan. 14 2043013, *5 (E.D. Cal.). 15 Yamamoto v. Bank of N.Y., 329 F.3d 1167, 1169 (9th If required disclosures Id. at 1170; Martinez v. EMC Mortg. Corp., 2009 WL The only parties who can be liable for TILA violations are the 16 original creditor and assignees of that creditor. 17 §§ 1640, 1641; Redic v. Gary H. Watts Realty Co., 762 F.2d 1181, 18 1185 (4th Cir. 1985); Nevis v. Wells Fargo Bank, 2007 WL 2601213, 19 *2 (N.D. Cal.). 20 as assignees for purposes of imposing liability unless they are 21 also the owner of the obligation. 22 Aegis Mortg. Corp., 286 F. Supp. 2d 956, 959 (N.D. Ill. 2003). 23 15 U.S.C. Servicers of consumer obligations are not treated 15 U.S.C. § 1641(f); Chow v. Here, Provident Funding was the original lender of the loan; 24 Plaintiffs did not plead, nor are there any documents that show, 25 that Wells Fargo is an assignee of Provident Funding. 26 Wells Fargo is not the original lender or the assignee of the 27 lender, it is not a proper party to a TILA action and, therefore, 28 13 Because 1 2 this claim is dismissed. Moreover, Wells Fargo cannot be liable for damages because the 3 one-year statute of limitations has expired. 4 Plaintiffs executed the loan agreement in June, 2006 but filed 5 their lawsuit in September, 2010. 6 is untimely. 7 statute of limitations fails for the reasons stated above. 8 9 15 U.S.C. § 1640(e). Thus, the TILA claim for damages Their attempt to seek equitable relief from the Plaintiffs’ TILA claim for rescission fails because the Oceanside Way property has already been sold. See Beach v. Ocwen United States District Court For the Northern District of California 10 Fed. Bank, 523 U.S. 410, 411 (1998) (stating that 15 U.S.C. 11 § 1635(f) provides that right of rescission expires three years 12 after loan closes or upon the sale of secured property, whichever 13 is earlier). 14 ability to tender amounts owed under the loan. 15 discretion to condition rescission under TILA on tender by the 16 borrower of funds received from the lender. 17 1171; Martinez v. EMC Mortg. Corp., 2009 WL 2043013 *6 (E.D. Cal.) 18 (noting “absent meaningful tender, TILA rescission is an empty 19 remedy, not capable of being granted”). 20 to Wells Fargo’s argument that they must tender amounts owed under 21 the loan. 22 Furthermore, Plaintiffs have not alleged the present Courts have Yamamoto, 329 F.3d at Plaintiffs do not respond For all of the reasons above, the Court grants Wells Fargo’s 23 motion to dismiss the TILA claim. 24 amend to plead facts showing that Wells Fargo is a proper TILA 25 defendant and that support equitable relief from the one-year 26 statute of limitations for damages. 27 28 14 Plaintiffs are granted leave to 1 VIII. Intentional Infliction of Emotional Distress 2 A claim of intentional infliction of emotional distress 3 requires a plaintiff to plead: “(1) extreme and outrageous conduct 4 by the defendant with the intention of causing, or reckless 5 disregard of the probability of causing, emotional distress; 6 (2) the plaintiff’s suffering severe or extreme emotional distress; 7 and (3) actual and proximate causation of the emotional distress by 8 the defendant's outrageous conduct.” 9 Court, 54 Cal. 3d 868, 903 (1991). Christensen v. Superior The conduct must be so extreme United States District Court For the Northern District of California 10 as to “exceed all bounds of that usually tolerated in a civilized 11 community,” id., and the distress so severe “that no reasonable man 12 in a civilized society should be expected to endure it,” Fletcher 13 v. W. Nat’l Life Ins. Co., 10 Cal. App. 3d 376, 397 (1970). 14 Plaintiffs allege that the action of Wells Fargo, “driven as 15 it was by profit at the expense of increasingly highly leveraged 16 and vulnerable consumers who placed their faith and trust in the 17 superior knowledge and position of Defendants,” constituted extreme 18 and outrageous conduct. 19 however, fails to allege sufficient facts showing extreme and 20 outrageous conduct. 21 intentional infliction of emotional distress against Wells Fargo. 22 IX. 23 Compl. 32. Plaintiffs’ complaint, Thus, Plaintiffs do not state a claim for Real Estate Settlement Procedures Act Although Plaintiffs do not include a claim for violation of 24 RESPA, 12 U.S.C. §§ 2601 et seq., in the section of the complaint 25 entitled, “Causes of Action,” the Court addresses it because 26 Plaintiffs mention it several times in the “General Allegations” 27 section of their complaint and in their opposition. 28 15 1 Plaintiffs do not make clear under which sections of RESPA 2 they bring their claim. 3 request for the production of the original promissory note and 4 imply that Wells Fargo did not respond. 5 a claim under § 2605 for a response to a qualified written request. 6 However, they allege that they made a Compl. at 2. This may be The statute of limitation for § 2605 claims is three years, 7 see 12 U.S.C. § 2614, and thus, a § 2605 claim premised on 8 Plaintiffs’ request for documents from Wells Fargo may not be time- 9 barred. RESPA places a duty upon loan servicers to respond to United States District Court For the Northern District of California 10 “qualified written requests.” 11 4936797, *6 (N.D. Cal.). 12 includes identifying information about the borrower and provides “a 13 statement of the reasons for the belief of the borrower, to the 14 extent applicable, that the account is in error or provides 15 sufficient detail to the servicer regarding other information 16 sought by the borrower.” 17 be related to the servicing of the loan, and the servicer must 18 provide a written response acknowledging receipt of the 19 correspondence within twenty days, unless the requested action is 20 taken within that period. 21 servicer must respond only if the information requested is related 22 to loan servicing. 23 the provisions of § 2605, a borrower is entitled to any actual 24 damages as a result of the failure. 25 include, at the pleading stage, a demonstration of some actual 26 pecuniary loss. 27 relationship between the alleged damages and the RESPA violation. 28 Id. Id. Lawther v. Onewest Bank, 2010 WL A qualified written request is one that 12 U.S.C. § 2605(c)(1). The request must Lawther, 2010 WL 4936797 at *6. A loan If a loan servicer fails to comply with Id. The plaintiff must The plaintiff must also allege a causal 16 1 Id. at *7. 2 It is possible that Plaintiffs could state a claim under 3 § 2605 against Wells Fargo. 4 Wells Fargo was the servicer of their loan, that they made a 5 qualified request for information related to the servicing of their 6 loan, that Wells Fargo did not respond to their request in 7 accordance with § 2605 and that this failure caused them to suffer 8 damages. 9 amend to correct these deficiencies. United States District Court For the Northern District of California 10 11 X. However, they have not alleged that Therefore, the RESPA claim is dismissed with leave to Preliminary Injunction Attached to Plaintiffs’ complaint, but not filed as a separate 12 document, is a “Petition for Preliminary Injunction” that asks the 13 Court to enjoin Wells Fargo from foreclosing on the Oceanside Way 14 property. 15 September, 2010, before Plaintiffs’ lawsuit was filed. 16 Accordingly, Plaintiffs’ request for a preliminary injunction is 17 denied as moot. However, as noted above, the property was foreclosed in 18 19 CONCLUSION For the foregoing reasons, Wells Fargo’s motion to dismiss is 20 GRANTED. 21 follows: 22 1. (Docket No. 8.) The Court’s rulings are summarized as Any challenge of the September, 2010 foreclosure sale 23 fails because Plaintiffs have not plead tender of the 24 amounts owed on their loan or the ability to offer 25 tender. 26 this deficiency. 27 28 2. Plaintiffs are granted leave to amend to cure Plaintiffs’ request that title be quieted in their favor 17 1 is dismissed. 2 allege that Wells Fargo has asserted an adverse claim 3 against the Oceanside Way property and that they have a 4 colorable claim to it. 5 3. Plaintiffs are granted leave to amend to Plaintiffs’ claim for breach of fiduciary duty is 6 dismissed. 7 facts demonstrating that they had a fiduciary 8 relationship with Wells Fargo. 9 4. They are granted leave to amend to allege Plaintiffs’ claim for negligence fails, they are not United States District Court For the Northern District of California 10 entitled to avail themselves of the evidentiary 11 presumption of negligence per se and their negligence 12 claim appears to be time-barred. 13 to amend to plead facts concerning Wells Fargo’s 14 negligent conduct and that suggest their negligence claim 15 is not time-barred. 16 5. They are granted leave Plaintiffs’ fraud claim fails because they have not 17 alleged, with sufficient specificity, that Wells Fargo 18 engaged in any fraudulent conduct. 19 leave to amend to plead specific facts concerning the 20 time, place and nature of Wells Fargo’s alleged fraud. 21 6. They are granted Plaintiffs’ claim for breach of the covenant of good 22 faith and fair dealing is dismissed. 23 leave to amend to plead the nature of their contract with 24 Wells Fargo, if any, and how it was breached. 25 7. They are granted Plaintiffs’ TILA claim for damages is dismissed with 26 leave to amend to allege facts demonstrating that Wells 27 Fargo was an assignee of its lender and that they are 28 18 1 entitled to equitable relief from the one-year statute of 2 limitations. 3 dismissed with prejudice as barred by the foreclosure 4 sale of the Oceanside Way property. 5 8. Plaintiffs’ TILA claim for rescission is Plaintiffs’ claim for intentional infliction of emotional 6 distress is dismissed with leave to amend to plead the 7 nature of the extreme and outrageous conduct committed by 8 Wells Fargo. 9 9. Plaintiffs’ RESPA claim is dismissed with leave to amend United States District Court For the Northern District of California 10 to plead, if they can truthfully do so, that Wells Fargo 11 was their loan servicer, that it committed RESPA 12 violations within the three-year statute of limitations 13 and that they suffered damages as a result. 14 15 16 10. Plaintiffs’ request that the Court enjoin the sale of the Oceanside Way property is denied as moot. Plaintiffs are granted leave to amend their complaint so long 17 as they can truthfully cure the deficiencies noted above. 18 Plaintiffs shall file their amended complaint fourteen days from 19 the date of this Order. 20 days in their motion, they do not justify such an extension; thus, 21 their motion for an extension of time is DENIED. 22 Plaintiffs’ failure to file a complaint within fourteen days will 23 result in the dismissal of their action for failure to prosecute. 24 Although Plaintiffs request forty-five (Docket No. 18.) If Plaintiffs file an amended complaint, Wells Fargo shall 25 answer or move to dismiss twenty-one days after it is filed. 26 Plaintiffs shall file an opposition fourteen days after Wells Fargo 27 files a motion to dismiss. 28 Any reply, if necessary, shall be due 19 1 seven days after Plaintiffs file their opposition. 2 dismiss will be taken under submission on the papers. 3 failure to comply with this briefing schedule will result in the 4 dismissal of their action for failure to prosecute. 5 6 7 Any motion to Plaintiffs’ The initial case management conference, currently set for February 8, 2011, is continued to March 22, 2011 at 2:00 p.m. IT IS SO ORDERED. 8 9 Dated: 1/4/2011 CLAUDIA WILKEN United States District Judge United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20 1 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 2 3 TORRES et al, Case Number: CV10-04761 CW 4 Plaintiff, CERTIFICATE OF SERVICE 5 v. 6 7 8 WELLS FARGO HOME MORTGAGE, INC. et al, Defendant. / 9 United States District Court For the Northern District of California 10 11 12 13 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on January 4, 2011, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 14 15 16 17 18 19 20 Eloisa Torres 15561 Oceanside Way San Leandro, CA 94579 Wesley V. Harris 15561 Oceanside Way San Leandro, CA 94579 Dated: January 4, 2011 Richard W. Wieking, Clerk By: Nikki Riley, Deputy Clerk 21 22 23 24 25 26 27 28 21