Alexander et al v. Deutsche Bank National Trust Company as Trustee et al, No. 3:2013cv00407 - Document 13 (S.D. Cal. 2013)
Court Description: ORDER Granting 5 Motion to Dismiss : For the reasons stated herein, the Court Grants Defendant's Motion to Dismiss and Dismisses Plaintiff's Complaint with prejudice. The Clerk of Court is instructed to terminate the case. Signed by Judge Michael M. Anello on 7/1/2013. (leh)
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Alexander et al v. Deutsche Bank National Trust Company as Trustee et al Doc. 13 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 11 LONI ALEXANDER, LONI ALEXANDER AS TRUSTEE FOR PROVENCE TRUST, 12 vs. CASE NO. 13-cv-407-MMA (WVG) ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE Plaintiffs, [Doc. No. 5] 13 14 15 DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUSTEE, and Does 1-10 inclusive, 16 Defendants. 17 Plaintiff Loni Alexander (“Plaintiff”), on behalf of herself and as Trustee for 18 19 Provence Trust, brings this mortgage-related dispute against Defendant Deutsche 20 Bank National Trust Company (“Defendant”). Defendant now moves to dismiss 21 Plaintiff’s Complaint under Federal Rules of Civil Procedure 8 and 12(b)(6). See 22 Doc. No. 5. Upon receiving leave of Court, Plaintiff filed an untimely opposition to 23 the motion, to which Defendant replied. See Doc. Nos. 8-4, 12. For the following 24 reasons, the Court GRANTS Defendant’s motion to dismiss. 25 /// 26 /// 27 /// 28 /// -1- 13cv407 Dockets.Justia.com BACKGROUND1 1 2 On June 28, 2007, Plaintiff obtained a $999,999 mortgage loan from IndyMac 3 Bank, FSB (“IMB”) in order to refinance her residence located at 2167 South Grade 4 Road, Alpine, California (“the Property”). [Compl. ¶¶ 6, 33.] The loan was secured 5 by a deed of trust on the Property. [Id. ¶ 33.] The deed of trust lists Mortgage 6 Electronic Registration Systems, Inc. (“MERS”) as the beneficiary, and Chicago 7 Title Insurance Co. as Trustee. [Id.; see June 28, 2007 Deed of Trust, Def’s Request 8 for Judicial Notice (“RJN”), Ex. A.] 9 Plaintiff then alleges that IMB attempted to sell or assign her loan, but, for 10 reasons difficult to discern from the complaint, did not validly do so. [Compl. ¶ 35.] 11 Later, IMB was acquired by OneWest Bank Group, LLC (“OneWest”). Id. ¶ 36.] 12 Plaintiff alleges that “[t]o date, there have been no valid substitutions or assignments 13 . . . such that [IMB], and now [OneWest] as successor remains the owner of the Note 14 and the Lender under the Note and Deed of trust, and Chicago Title remains the 15 named Trustee to the exclusion of all others.” [Id. ¶ 42.] 16 According to Defendant, shortly after Plaintiff’s loan closed, Plaintiff’s loan 17 was pooled and placed in the IndyMac INDA Mortgage Loan Trust 2007-FLX6, 18 Mortgage Pass-Through Certificates, Series 2007-FLX6 (“2007 Trust”) pursuant to 19 the terms of a Pooling and Servicing Agreement dated July 1, 2007 (“PSA”). [See 20 RJN, Ex. B.] Although ownership of Plaintiff’s loan was transferred to the 2007 21 Trust, IMB retained the servicing rights to the loan. [Id. at 1.] On July 11, 2008, 22 IMB failed and was closed by the Office of Thrift Supervision. The FDIC was 23 appointed as receiver. [See Office of Thrift Supervision Order (“OTS”) Order No. 24 2008-24, RJN, Ex. C.] The assets of IMB were transferred to the newly-chartered 25 1 Because this matter is before the Court on a motion to dismiss, the Court must accept as true the allegations of the complaint in question. Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976). However, as it is difficult to reconstruct 27 a factual background from the Complaint alone, the Court supplements the background section with facts taken from the documents attached to Defendant’s motion to dismiss. 28 As discussed below, the Court takes judicial notice of the facts contained in these documents. 26 -2- 13cv407 1 IndyMac Federal Bank, FSB (“IMFB”), for which the FDIC was appointed as 2 Conservator and operated IMFB from July 11, 2008 until March 19, 2009. [See 3 generally Servicing Business Asset Purchase Agreement, RJN, Ex. D.] On March 4 19, 2009, IMFB was closed and the FDIC was appointed as Receiver. In its capacity 5 as receiver, the FDIC sold and transferred certain assets of IMFB to newly-formed 6 OneWest. The transferred assets included the servicing rights to Plaintiff’s loan. 7 [See id.] On January 10, 2011, MERS assigned its beneficial interest in Plaintiff’s 8 loan to Deutsche Bank, as trustee for the 2007 Trust. [See Assignment of Deed of 9 Trust, RJN, Ex. F.] This assignment was recorded on June 3, 2011. [Id.] 10 Plaintiff alleges that on February 24, 2011, Meridian Foreclosure Service 11 (“Meridian”) caused to be recorded and sent to Plaintiff a Notice of Default and 12 Election to Sell Under Deed of Trust. [Compl. ¶ 44.] Plaintiff alleges that Luis 13 Henriquez, who signed the notice, was not authorized to do so by IMB, OneWest, or 14 MERS. [Id. ¶¶ 46-47.] Plaintiff alleges that Defendant was merely a third-party 15 stranger to the loan transaction, with no right or power to act under the Note or Deed 16 of Trust. [Id. ¶ 50.] Plaintiff does not dispute that money is owed on her mortgage 17 obligation. [Id. ¶ 31.] 18 Based on these events, on February 20, 2013, Plaintiff alleging claims for (1) 19 declaratory relief; (2) negligence; (3) breach of quasi contract; (4) violation of the 20 Fair Debt Collection Practices Act (“FDCPA”); (5) violation of California’s Unfair 21 Business Practices act; (6) accounting; and (7) cancellation of instruments. Plaintiff 22 asserts “the documents recorded by or on behalf of [Defendant] were not in any 23 manner authorized or executed by a real party in interest in the Note and Deed of 24 Trust, and are fabrications and forgeries executed by as yet unidentified rogue 25 employees of [Defendant].” [Compl. ¶ 30.] 26 LEGAL STANDARD 27 A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint. 28 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “While a complaint attacked -3- 13cv407 1 by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a 2 plaintiff’s obligation to provide the grounds of his entitlement to relief requires more 3 than labels and conclusions, and a formulaic recitation of the elements of a cause of 4 action will not do. Factual allegations must be enough to raise a right to relief above 5 the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) 6 (internal quotations, brackets, and citations omitted). 7 In reviewing a motion to dismiss under Rule 12(b)(6), the Court must assume 8 the truth of all factual allegations and must construe them in the light most favorable 9 to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th 10 Cir. 1996). Legal conclusions need not be taken as true merely because they are cast 11 in the form of factual allegations. Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th 12 Cir. 1987); W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). 13 Similarly, “conclusory allegations of law and unwarranted inferences are not 14 sufficient to defeat a motion to dismiss.” Pareto v. FDIC, 139 F.3d 696, 699 (9th 15 Cir. 1998). 16 In determining the propriety of a Rule 12(b)(6) dismissal, generally, a court 17 may not look beyond the complaint for additional facts. United States v. Ritchie, 18 342 F.3d 903, 908 (9th Cir. 2003); Parrino v. FHP, Inc., 146 F.3d 699, 705-06 (9th 19 Cir. 1998). However, Federal Rule of Evidence 201 allows the Court to take judicial 20 notice of certain items without converting the motion to dismiss into one for 21 summary judgment. Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994). The 22 Court may take judicial notice of facts “not subject to reasonable dispute” because 23 they are either: “(1) generally known within the territorial jurisdiction of the trial 24 court or (2) capable of accurate and ready determination by resort to sources whose 25 accuracy cannot reasonably be questioned.” Fed. R. Evid. 201; see also Lee v. City 26 of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (noting that the court may take 27 judicial notice of undisputed “matters of public record”), overruled on other grounds 28 by 307 F.3d 1119, 1125–26 (9th Cir. 2002). The court may disregard allegations in -4- 13cv407 1 a complaint that are contradicted by matters properly subject to judicial notice. 2 Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010). DISCUSSION 3 4 A. Judicial Notice 5 Defendant seeks judicial notice of seven documents: (1) a copy of the Deed of 6 Trust recorded on July 17, 2007 in the official records of the San Diego County 7 Recorder; (2) the July 1, 2007 PSA between IMB and Defendant, which is publically 8 available on the Security Exchange Commission’s website; (3) a July 11, 2008, 9 order from the Office of Thrift Supervision appointing the FDIC as receiver; (4) a 10 Servicing Business Asset Purchase Agreement between the FDIC, the receiver for 11 IMFB, and OneWest available on the FDIC’s website; (5) the Notice of Default 12 recorded February 24, 2011 in the official records of the San Diego County Recorder 13 as instrument no. 2011-0102393; (6) the Assignment of Deed of Trust recorded on 14 June 3, 2011 in the official records of the San Diego County Recorder as instrument 15 no. 2011-0284142; and (7) the Assignment of Deed of Trust recorded on July 20, 16 2012, in the official records of the San Diego County Recorder as instrument 17 number 2012-0421624. 18 Under Federal Rule of Evidence 201(b), a district court may take notice of 19 facts not subject to reasonable dispute that are “capable of accurate and ready 20 determination by resort to sources whose accuracy cannot reasonably be 21 questioned.” Fed. R. Evid. 201(b). Plaintiff objects to Defendant’s request for 22 judicial notice, arguing that this Court should not take judicial notice of the facts 23 stated within the documents, as the statements are hearsay. [See Opp. at 1-2.] 24 However, Plaintiff does not question the authenticity of the documents themselves. 25 The Court overrules Plaintiff’s hearsay objections in light of the fact that all of 26 Defendant’s exhibits are available from public records. For example, Exhibits A 27 (Deed of Trust), E (Notice of Default), F (Assignment of Deed), and G (further 28 Assignment), of which Defendant requests judicial notice, are all records filed with -5- 13cv407 1 the county recorder. Courts routinely take judicial notice of these types of 2 documents. See, e.g., Liebelt v. Quality Loan Serv. Corp., 2011 WL 741056, at *6 3 n.2 (N.D. Cal. 2011); Reynolds v. Applegate, 2011 WL 560757, at *1 n.2 (N.D. Cal. 4 2011); Giordano v. Wachovia Mortg., FSB, 2010 WL 5148428, at * 1 n.2 (N.D. Cal. 5 2011). In addition, RJN Exhibits B, C, and D are documents obtained from 6 administrative agencies and are therefore properly noticed as a public record. See 7 Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994).2 8 9 Thus, the Court finds that the accuracy of these documents cannot reasonably be questioned as they are all either publically recorded documents or publically 10 available government documents. Accordingly, the Court GRANTS Defendant’s 11 requests for judicial notice. 12 B. 13 As a preliminary matter, Defendant argues that the complaint must be 14 dismissed on standing grounds because Plaintiff fails to identify the trust of which 15 Defendant is purportedly the trustee. [Mot. at 8.] Plaintiff acknowledges that this 16 deficiency must be cured in order to prevent dismissal. Accordingly, Plaintiff 17 requests leave to amend her complaint to substitute “INDX Mortgage Loan Trust 18 2007-FLX6, Mortgage Pass-Through Certificates 2007-FLX6” in place and instead 19 of “The Unknown Trust.”3 [Opp. at 7.] 20 Standing As a general rule, a court freely grants leave to amend a complaint which has 21 been dismissed. Fed. R. Civ. P. 15(a). However, leave to amend may be denied 22 when “the court determines that the allegation of other facts consistent with the 23 challenged pleading could not possibly cure the deficiency.” Schreiber Distrib. Co. 24 25 26 27 28 2 Furthermore, to the extent that these exhibits are considered for the truth of the matter asserted, they are either business or public records under Fed. R. Evid. 803(6) and 803(8) and therefore constitute exceptions to the hearsay rule. 3 The Court notes that Federal Rule of Civil Procedure 15(a) afforded Plaintiff the opportunity to amend her complaint as a matter of course within 21 days after service of Defendant’s motion to dismiss. Fed. R. Civ. P. 15(a)(1)(B). As this opportunity has now passed, however, Plaintiff must seek leave of court to amend. -6- 13cv407 1 v. Serv–Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986). To determine 2 whether leave to amend would be futile, the Court assumes for purposes of this order 3 that Plaintiff has properly identified the trust over which Defendant serves as trustee. 4 As will be demonstrated, the Court finds that amendment would be futile, and thus 5 denies Plaintiff’s request to amend her complaint. 6 7 8 9 10 11 C. Individual Claims for Relief The crux of Plaintiff’s complaint is as follows: Plaintiffs allege[] that at NO TIME did MERS affect an assignment, transfer, negotiation, or sale of the Deed of Trust to any Defendant or Doe Defendant, or anyone at any time, and any document, that purports to have effectuated such an assignment, transfer, negotiation, or sale of the Deed of Trust, including the Notice of Default was executed by a stranger to the Lender, and also to MERS, and someone without the legal authority to undertake any act for or on behalf of MERS as agent of the true lender. 12 13 [Compl. ¶ 62.] In opposition, Plaintiff clarifies that “through the instant lawsuit, 14 Plaintiff . . . will establish that Defendant . . . in its capacity as purported assignee of 15 Plaintiff’s Note and Deed of Trust are not and were not her true creditors and as such 16 have and had no legal, equitable, or pecuniary right in the debt obligation secured by 17 the Plaintiff’s real property that is the subject of these proceedings.” [Opp. at 1.] 18 However, the documents submitted by Defendant and which are subject to 19 judicial notice directly refute Plaintiff’s allegation that Defendant is a stranger to the 20 loan. Under these documents, (1) Plaintiff obtained the loan from IMB in 2007 21 secured by a deed of trust; (2) this loan was pooled and placed in the 2007 Trust; and 22 (3) the beneficial interest in the deed of trust was later assigned to Defendant. Thus, 23 there is an unbroken chain of title that supports Defendant’s right to receive 24 payments under the loan. See McLaughlin v. Wells Fargo Bank, N.A., 2012 WL 25 5994924, at *6 (C.D. Cal. 2012) (finding that “[b]ecause there is an unbroken chain 26 of title and Plaintiff has failed to properly allege a claim for fraud so as to invalidate 27 the recorded documents,” defendants had the authority to demand payment on the 28 mortgage loan). -7- 13cv407 1 In response to these facts, Plaintiff states that she “will not dispute that the 2 [assignment document] exists, but will dispute that MERS authorized, signed, or had 3 knowledge of the purported assignment and that the person who signed the 4 assignment was authorized by MERS.” [Opp. at 3.] However, the Court finds that 5 amendment of the complaint to include these allegations would be futile. “[D]istrict 6 courts have held that borrowers who were not parties to the assignment of their 7 deed–and whose rights were not affected by it–lacked standing to challenge the 8 assignment’s validity because they had not alleged a concrete and particularized 9 injury that is fairly traceable to the challenged assignment.” Marques v. Federal 10 Home Loan Mortg. Corp., 2012 WL 6091412, at *4 (S.D. Cal. 2012) (quoting 11 Silving v. Wells Fargo Bank, NA, 2012 WL 135989, at *3 (D. Ariz. 2012); In re 12 MERS Litig., 2011 WL 4550189 (D. Ariz. Oct.3, 2011) (quotations omitted). “[T]he 13 validity of the assignment does not affect whether [the] borrower owes its 14 obligations, but only to whom [the] borrower is obliged.” Id. at *5 (quoting Livonia 15 Prop. Holdings, L.L.C. v. Farmington Road Holdings, L.L.C., 717 F. Supp. 2d 724, 16 735-36 (E.D. Mich. 2010)). Therefore, the Court finds that Plaintiff lacks standing 17 to challenge the assignment of the Deed of Trust. 18 Additionally, Plaintiff contends that the assignment of the Deed of Trust was 19 invalid on the ground that “[t]he parties involved in the alleged Securitization and 20 transfer of Plaintiffs’ Note and Mortgage failed to adhere to section 2.01 of the 21 related PSA . . . .” [Compl. ¶ 53.] “To the extent Plaintiff bases her claims on the 22 theory that [Defendant] allegedly failed to comply with the terms of the PSA, the 23 court finds that she lacks standing to do so because she is neither a party to, nor a 24 third party beneficiary of, that agreement .” McLaughlin, 2012 WL 5994924, at *4 25 (quoting Sami v. Wells Fargo Bank, 2012 WL 967051, at *5 (N.D. Cal. 2012) 26 (dismissing claims based on the allegation that defendant bank transferred or 27 assigned the Deed of Trust after the securitized trust closing date in violation of the 28 PSA)). Thus, Plaintiff does not have standing to challenge the assignment on the -8- 13cv407 1 2 basis of violations of the PSA. Because the Court finds that Plaintiff’s mortgage loan was assigned to 3 Defendant, thereby giving Defendant the right to seek payment, Plaintiff’s claims 4 must be dismissed. Plaintiff requests leave to amend her complaint to provide 5 “plausible factual assertions” in support of her position that MERS did not affect any 6 assignment of the Deed of Trust. [Opp. at 10.] However, the Court finds that 7 dismissal with prejudice is warranted because amendment would be futile absent 8 allegations that the assignment documents were fraudulent. 9 Federal Rule of Civil Procedure 9(b) states that an allegation of “fraud or 10 mistake must state with particularity the circumstances constituting fraud.” Fed. R. 11 Civ. P. 9(b). The “circumstances” required by Rule 9(b) are the “who, what, when, 12 where, and how” of the fraudulent activity. Vess v. Ciba–Geigy Corp. USA, 317 13 F.3d 1097, 1106 (9th Cir. 2003); Neubronner v. Milken, 6 F.3d 666, 672 (9th Cir. 14 1993) (“[Rule 9(b) requires] the times, dates, places, benefits received, and other 15 details of the alleged fraudulent activity.”). In addition, the allegation “must set 16 forth what is false or misleading about a statement, and why it is false.” Vess, 317 17 F.3d at 1106 (quoting In re Glenfed, Inc. Secs. Litig., 42 F.3d 1541, 1548 (9th Cir. 18 1994)). Rule 9(b)’s heightened pleading standard applies not only to federal claims, 19 but also to state law claims brought in federal court. Id. at 1103. This heightened 20 pleading standard ensures that “allegations of fraud are specific enough to give 21 defendants notice of the particular misconduct which is alleged to constitute the 22 fraud charged so that they can defend against the charge and not just deny that they 23 have done anything wrong.” Semegen v. Weidner, 780 F.2d 727, 731 (9th Cir. 24 1985). 25 Here, in taking judicial notice of the aforementioned documents, the Court has 26 conclusively determined that the accuracy of these documents cannot reasonably be 27 questioned. Further, Plaintiff does not indicate what additional plausible facts she 28 might include, or otherwise indicate an ability to satisfy the stringent pleading -9- 13cv407 1 requirements for claims of fraud. Thus, the Court is convinced that this complaint 2 cannot be saved by any amendment. 3 4 In light of the determination that Plaintiff’s claims should be dismissed with prejudice, the Court only briefly addresses each specific claim. 5 1. Declaratory Relief 6 Plaintiff’s claim for declaratory relief is directly tied to the allegation that 7 Defendant was a stranger to the loan, and thus did not have the authority to collect 8 mortgage payments from Plaintiff. Thus, for the reasons above, and also because 9 none of Plaintiff’s substantive claims survive Defendant’s motion to dismiss, this 10 claim necessarily fails. See Glue–Fold, Inc. v. Slautterback Corp., 82 Cal. App. 4th 11 1018, 1023 n.3, 98 Cal. Rptr. 2d 661 (2000) (noting that equitable forms of remedy 12 “have no separate viability” if plaintiff’s other causes of action fail). 13 2. Negligence 14 Plaintiff alleges that Defendant breached its duty of care not to collect 15 mortgage payments where Defendant lacked the right to enforce the underlying 16 obligation. [Compl. ¶ 106.] In addition to the reasons stated above, this claim fails 17 because financial institutions generally do not owe a duty of care to a borrower when 18 its activities do not exceed those of a conventional money lender. Nymark v. Heart 19 Fed. Sav. & Loan Ass’n, 231 Cal. App. 3d 1089, 1095-96 (Ct. App. 1991). 20 “Furthermore, a trustee under a deed of trust owes Plaintiff no duty beyond its duties 21 contained in Cal. Civ. Code §§ 2924, et seq.” Id. (citations omitted). 22 While Plaintiff alleges that Defendant owes her a duty of care because of their 23 “unconventional relationship,” Plaintiff bases her negligence claim on allegations 24 that Defendant was a stranger to the loan and did not have the right to enforce it. 25 [Compl. ¶ 106.] For the reasons stated above, these allegations are insufficient to 26 establish an unconventional relationship necessary to compel the Court to deviate 27 from the general rule that financial institutions do not owe a duty of care to 28 borrowers. Nymark, 231 Cal. App. 3d at 1096. As Plaintiff is unable to establish a - 10 - 13cv407 1 duty, and for the reasons stated previously with respect to Defendant’s right to 2 collect payment, the cause of action for negligence is dismissed with prejudice. 3 3. Quasi Contract 4 Plaintiff’s claim for breach of quasi contract is based on the theory that 5 Defendant had no interest in the note or deed of trust when it attempted to 6 improperly collect on the loan. [Compl. ¶ 112.] For the reasons set forth above, this 7 claim fails and is dismissed. 8 4. FDCPA 9 Plaintiff asserts violations of the FDCPA against Defendant, which moves to 10 dismiss the claim on grounds that they are not debt collectors as defined by the 11 FDCPA, and foreclosure-related activity conducted pursuant to a deed of trust does 12 not constitute debt collection within the meaning of the FDCPA. 13 The declared purpose of the FDCPA is to “eliminate abusive debt collection 14 practices by debt collectors . . . and to promote consistent state action to protect 15 consumers against debt collection abuses.” 15 U.S.C. § 1692. The FDCPA defines 16 “debt” as “any obligation or alleged obligation of a consumer to pay money arising 17 out of a transaction in which the money, property, insurance, or services which are 18 the subject of the transaction are primarily for personal, family, or household 19 purposes, whether or not such obligation has been reduced to judgment.” 15 U.S.C. 20 § 1692a(5). It is well-established that the activity of foreclosing on property 21 pursuant to a deed of trust is not “collection of a debt” within the meaning of the 22 FDCPA. See, e.g., Izenberg v. ETS Servs., LLC, 589 F. Supp. 2d 1193, 1199 (C.D. 23 Cal. 2008) (citing Ines v. Countrywide Home Loans, 2008 WL 4791863, at *2 (S.D. 24 Cal. 2008)). As one district court explained, 25 26 27 Foreclosing on a trust deed is distinct from the collection of the obligation to pay money. The FDCPA is intended to curtail objectionable acts occurring in the process of collecting funds from a debtor. But, foreclosing on a trust deed is an entirely different path. Payment of funds is not the object of the foreclosure action. Rather, the lender is foreclosing its interest in the property. 28 - 11 - 13cv407 1 Hulse v. Ocwen Fed. Bank, 195 F. Supp. 2d 1188, 1204 (D. Or. 2002). Plaintiff’s FDCPA claim cannot be based on the allegation that Defendant 2 3 recorded the notice of default, as such activity does not qualify as “debt collecting” 4 under the FDCPA. Furthermore, this claim fails because it is based on Defendant 5 not having the legal right to collect loan payments. Thus, this claim is dismissed. 6 5. 7 Plaintiff next alleges that Defendant engaged in unlawful, unfair, and 8 fraudulent business practices in violation of California’s Unfair Competition Law, 9 Cal. Bus. and Prof. Code § 17200 et seq. (“UCL”). Defendant asserts that Plaintiff 10 California Business and Professions Code fails to state a claim under this statutory provision. California’s UCL prohibits unlawful, unfair, and fraudulent business acts or 11 12 practices. Cal. Bus. & Prof. Code § 17200 et seq.; Wolfe v. State Farm Fire & 13 Casualty Ins. Co., 46 Cal. App. 554, 558 (1996). The law is “sweeping, embracing 14 anything that can properly be called a business practice and at the same time is 15 forbidden by law.” Cel-Tech Communs., Inc. v. L.A. Cellular Tel. Co., 20 Cal. 4th 16 163, 180 (1999). The UCL “borrows violations of other laws and treats them as 17 unlawful practices that the [UCL] makes independently actionable.” Id. Plaintiff alleges that Defendant engage in fraudulent business practices with 18 19 respect to mortgage loan servicing by: executing and recording false and misleading 20 documents; executing and recording documents without the legal authority to do so; 21 failing to disclose the principal for which documents were being executed and 22 recorded; demanding and accepting payments for debts that were non-existent; 23 violating the security first rule; and acting as a beneficiary without the legal 24 authority to do so. [Compl. ¶ 116.] The Court finds that this claim is directly derivative of the previous claims 25 26 which the Court has determined to be without merit. Thus, this claim also 27 necessarily fails. 28 /// - 12 - 13cv407 1 6. 2 As Plaintiff “tethers” her claim for an accounting to the previously asserted 3 Accounting causes of action [see Compl. ¶ 125], this claim fails. 4 7. Cancellation of Instruments 5 Plaintiff seeks the cancellation of the Notice of Default recorded with the San 6 Diego County Recorder’s Office on February 23, 2011. However, as discussed 7 previously, Plaintiff has failed to allege facts to demonstrate such notice was 8 unlawful. The Court dismisses this claim. CONCLUSION 9 10 For the foregoing reasons, the Court GRANTS Defendant’s motion to dismiss 11 and DISMISSES Plaintiff’s Complaint with prejudice. The Clerk of Court shall 12 terminate the case. 13 14 IT IS SO ORDERED. DATED: July 1, 2013 15 16 17 Hon. Michael M. Anello United States District Judge 18 19 20 21 22 23 24 25 26 27 28 - 13 - 13cv407
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