Roger Otero et al v. Federal National Mortgage Association et al
Filing
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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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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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ROGER OTERO, an individual,
et al.,
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Plaintiff,
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v.
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FEDERAL NATIONAL MORTGAGE
ASSOCIATION, et al.,
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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]
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Presently before the court is Defendant Federal National
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Mortgage Association (“Fannie Mae”)’s Motion to Dismiss.
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considered the submissions of the parties
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I.
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Having
Background
In April 2007, Plaintiffs obtained a home loan from Bank of
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America and executed a promissory note in favor of Bank of America,
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secured by a Deed of Trust, under which PRLAP, Inc. was named
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Trustee and Bank of America was the beneficiary.
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7, Ex. A.)1
(Complaint ¶¶ 5-
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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.
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Plaintiffs were unable to make payments on the loan, and on
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June 9, 2009, Defendant NDEX West, LLC (NDEX) recorded a Notice of
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Default as agent for beneficiary Bank of America.
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Judicial Notice, Ex. B).2
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substituted NDEX as Trustee.
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NDEX recorded a Notice of Trustee’s Sale.
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Notice of Trustee’s Sale did not list the beneficiary of the Deed
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of Trust.
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(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,
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which occurred on April 11, 2011.
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three months after the sale but before the recording of the
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Trustee’s Deed Upon Sale, Bank of America assigned its interest in
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the Deed of Trust to Fannie Mae.
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July 21, NDEX recorded a Trustee’s Deed Upon Sale in favor of
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Fannie Mae.
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stated “The Grantee herein WAS the foreclosing beneficiary.”
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(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
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court alleging causes of action for (1) wrongful foreclosure, (2)
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set aside trustee sale, (3) cancel trustee’s deed, (4) quiet title,
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(5) breach of contract, (6) violation of [California] Business and
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Professions Code § 1572, and (7) intentional misrepresentation.
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Fannie Mae subsequently removed to this court, and now moves to
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dismiss the entire complaint.
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to state court.
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II.
Plaintiffs move to remand this case
Legal Standard
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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
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A complaint will survive a motion to dismiss when it contains
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“sufficient factual matter, accepted as true, to state a claim to
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relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
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662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
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570 (2007)).
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“accept as true all allegations of material fact and must construe
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those facts in the light most favorable to the plaintiff.” Resnick
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v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000).
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need not include “detailed factual allegations,” it must offer
When considering a Rule 12(b)(6) motion, a court must
Although a complaint
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“more than an unadorned, the-defendant-unlawfully-harmed-me
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accusation.”
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allegations that are no more than a statement of a legal conclusion
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“are not entitled to the assumption of truth.” Id. at 679.
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other words, a pleading that merely offers “labels and
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conclusions,” a “formulaic recitation of the elements,” or “naked
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assertions” will not be sufficient to state a claim upon which
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relief can be granted.
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quotation marks omitted).
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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
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assume their veracity and then determine whether they plausibly
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give rise to an entitlement of relief.” Id. at 679.
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must allege “plausible grounds to infer” that their claims rise
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“above the speculative level.” Twombly, 550 U.S. at 555.
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“Determining whether a complaint states a plausible claim for
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relief” is a “context-specific task that requires the reviewing
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court to draw on its judicial experience and common sense.”
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556 U.S. at 679.
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Plaintiffs
Iqbal,
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A defendant may remove a case from state court to federal
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court if the case could have originally been filed in federal
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court.
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F.2d 787, 789 (9th Cir. 1977).
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original jurisdiction of all civil actions where the matter in
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controversy exceeds the sum or value of $75,000 . . . and is
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between . . . citizens of different States[.]”
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§ 1332(a)(1).
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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
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any doubt exists as to the propriety of removal.
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Inc., 980 F.2d 564, 566 (9th Cir. 1992).
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III. Discussion
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A.
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This case was properly removed to this court.
Gaus v. Miles,
Plaintiffs’ Motion to Remand
Plaintiffs
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argue that the parties are not diverse because Fannie Mae has
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several different regional offices.
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argument ignores the fact that Fannie Mae is a citizen of
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Washington, D.C., where it maintains its headquarters and “nerve
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center.”
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While Plaintiffs argue that they only seek to cancel the Trustee’s
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Deed Upon Sale, the complaint explicitly seeks to quiet title to
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the property at issue, which is valued far above the jurisdictional
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minimum.
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RMW, 2011 WL 6304152 at *3 (N.D. Cal. Dec. 16, 2011).
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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
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Plaintiffs’
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B.
Defendant’s Motion to Dismiss
Fannie Mae argues that Plaintiffs may not bring any
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foreclosure-related claims absent a viable tender of the amount of
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Plaintiffs’ indebtedness.
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performance made with the intent to extinguish the obligation.”
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Arnolds Mgmt. Corp. v. Eischen, 158 Cal. App.3d 575, 580 (1984)
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(citing Cal. Civ. Code, § 1485). “When a debtor is in default of a
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home mortgage loan, and a foreclosure is either pending or has
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taken place, the debtor must allege a credible tender of the amount
(Mot. at 3.)
“A tender is an offer of
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of the secured debt to maintain any cause of action for wrongful
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foreclosure.”
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Cal. 2009).
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upon to “order a useless act performed” in cases where plaintiffs
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would be unable, even under proper sale procedures, to redeem a
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property.
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Cal.App.3d 1018, 1021-22 (1989).
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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
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rule applies here.
(Opp. at 7-8.)
Indeed, an equitable exception
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may apply where it would be inequitable to require tender.
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v. Rice, 55 Cal. App. 4th 413, 424 (1997).
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equitable exception to the tender rule where plaintiffs contest the
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validity of a foreclosure prior to the foreclosure sale.
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e.g., Tamburri v. Suntrust Mortgage, Inc., 2011 WL 6294472 *3, 5
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(N.D. Cal. December 15, 2011); Sacchi v. Mortgage Electronic
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Registration Systems, Inc., 2011 WL 2533029 *9-10 (C.D. Cal. June
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24, 2011).
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foreclosure situations such as this one.
Onofrio
Courts have applied the
See,
The exception does not apply, however, in post-
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See, e.g., Rowen v. Bank
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of America, N.A., No. CV 12-1762 CAS, 2012 WL 2160632 at *8 (C.D.
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Cal. 2012).
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Plaintiffs further argue that they have sufficiently alleged
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tender.
(Opp. at 7.)
The Complaint alleges that “Plaintiffs are
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ready, willing and able to pay the monthly mortgage payments, given
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but not limited to financing,” and that they have satisfied any
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tender requirement “in that [Plaintiffs] are ready and willing to
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submit an application for a loan modification in order to work out
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some sort of agreement with the bank to allow them to make more
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affordable payments . . . .
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rule, however, requires that Plaintiffs offer to pay the full
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amount of the debt.
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Having offered only to make resumed or reduced monthly payments,
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Plaintiffs have not satisfied the tender rule.
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Plaintiff’s causes of action are related to their wrongful
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disclosure claims, the complaint must be dismissed.3
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IV.
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(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
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DENIED.
Defendant Fannie Mae’s Motion to Dismiss is GRANTED.
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IT IS SO ORDERED.
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Dated:
November 9, 2012
DEAN D. PREGERSON
United States District Judge
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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).
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