Lilia Nuno v. Wells Fargo Bank, N.A. et al

Filing 22

ORDER by Judge George H. Wu: IT IS THEREFORE ORDERED: 1. Plaintiff's "Request to Remand" is denied. 2. Wells Fargo's Motion to Dismiss the complaint is dismissed without leave to amend. Please refer to the Court's order for additional information. (cr)

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1 Submitted by: A NGLIN F LEWELLING R ASMUSSEN C AMPBELL & T RYTTEN LLP 2 Scott T. Reigle (# 288515) 3 ANGLIN, FLEWELLING, RASMUSSEN, CAMPBELL & TRYTTEN LLP 4 301 N. Lake Ave, Suite 1100 Pasadena, CA 91101-4158 5 Tel: (626) 535-1900 | Fax: (626) 577-7764 6 Attorneys for Defendant WELLS FARGO BANK, N.A., 7 successor by merger with Wells Fargo Bank Southwest, N.A., f/k/a Wachovia 8 Mortgage, FSB, f/k/a World Savings Bank, FSB (“Wells Fargo”) 9 10 UNITED STATES DISTRICT COURT 11 CENTRAL DISTRICT OF CALIFORNIA – WESTERN DIVISION 12 CASE NO.: CV 17-4809-GW(Ex) 13 LILIA NUNO, an individual; Plaintiff, 14 ORDER v. 15 16 WELLS FARGO BANK, N.A.; ABOUT BUCKLEY MADOLE, P.C.; 17 AND DOES 1 THRU 100; [Assigned to the Hon. George H. Wu] Defendants. 18 19 20 The motion to dismiss plaintiff’s complaint filed by defendant WELLS 21 FARGO BANK, N.A., successor by merger with Wells Fargo Bank Southwest, 22 N.A., f/k/a Wachovia Mortgage, FSB, f/k/a World Savings Bank, FSB (“Wells 23 Fargo”) came on for hearing on August 24, 2017 at 8:30 a.m. in Courtroom 9D, the 24 Hon. George H. Wu presiding. Scott T. Reigle of Anglin, Flewelling, Rasmussen, 25 Campbell & Trytten LLP appeared on behalf of Wells Fargo, and plaintiff 26 appeared, pro se. 27 / / / 28 / / / 93000/FR2313/01842389-3 1 CASE NO.: CV 17-4809-GW(EX) [PROPOSED] ORDER 1 After full consideration of the authorities and written arguments submitted 2 by the parties, the oral arguments of the parties at the hearing, and good cause 3 appearing, the Court adopts its tentative ruling as its final order, which is as 4 follows: 5 On January 30, 2017, Lilia Nuno (“Plaintiff”), in pro per, sued Wells Fargo 6 Bank, N.A. (“Wells”) and “About Buckley Madole, P.C.,”1 asserting six causes of A NGLIN F LEWELLING R ASMUSSEN C AMPBELL & T RYTTEN LLP 7 action: 1) violation of California Business and Professions Code § 17200, 2) 8 injunctive relief, 3) violation of California Civil Code § 1572, 4) fraud, 5) 9 intentional misrepresentation, and 6) violation of California Civil Code §§ 2923.5 10 and 2924. The case concerns Plaintiff’s real property in Los Angeles, California, 11 which she financed on or about October 24, 2006, by virtue of a Deed of Trust and 12 Note. See Complaint ¶¶ 3, 8. Wells was the beneficiary of the property, and NBS 13 was listed on the Notice of Default (“NOD”) and Notice of Trustee’s Sale. See id. 14 ¶¶ 4-5. As best as the Court can tell, Plaintiff alleges, and bases her claims on, the 15 following: 16 Wells and NBS (collectively “Defendants”) asserted that Plaintiff became in 17 default on her loan. See id. ¶ 9. However, the default was occasioned by high 18 payments, the structure of the loan, and the interest rate, and Plaintiff suggests that 19 the terms of her loan were not accurately represented and/or disclosed in some 20 respect. See id. ¶¶ 9, 74. In addition, Plaintiff’s performance was excused by virtue 21 of Defendants’ prior breach of the terms of the Note. See id. ¶ 9. Also, the 22 Declaration of Due Diligence attached to the NOD was invalid, and the NOD itself 23 is void because the required “penalty of perjury” and signature of a person with 24 “actual knowledge” is missing. See id. ¶¶ 9, 11, 24, 98, 100. The NOD also 25 26 1 The Notice of Removal indicates that this defendant’s correct name is NBS 27 Default Services, LLC (“NBS”). See Notice of Removal at 1:12-14. Plaintiff has 28 not argued otherwise in connection with this motion or her “request” for remand. See Footnote 2, infra. 93000/FR2313/01842389-3 2 CASE NO.: CV 17-4809-GW(EX) [PROPOSED] ORDER 1 allegedly contains certain unspecified misrepresentations upon which Plaintiff 2 relied. See id. ¶¶ 81-82, 89; see also id. ¶ 87. Defendants also did not have the 3 power to record the NOD, and NBS was not the trustee of record at the time the 4 NOD was recorded. See id. ¶¶ 9, 18. Defendants are also not “holders” of 5 Plaintiff’s Note. See id. ¶¶ 14-16, 22, 25, 46-48, 64-65. Defendants also failed to 6 record an assignment of the Deed of Trust prior to commencing the foreclosure. A NGLIN F LEWELLING R ASMUSSEN C AMPBELL & T RYTTEN LLP 7 See id. ¶ 93. Defendants are attempting to unlawfully foreclose on Plaintiff’s 8 property. See id. ¶¶ 12, 34-35, 48. 9 Wells now moves (joined by NBS, see Docket No. 12) to dismiss Plaintiff’s 10 case, without leave to amend, pursuant to Rule 12(b)(6) of the Federal Rules of 11 Civil Procedure.2 Although Plaintiff responded to that motion (in an untimely 12 manner, see C.D. Cal. L.R. 7-9), with the possible exception of attempting to 13 demonstrate that she has standing to pursue a Section 17200 claim, none of her 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 On August 4, 2017, Plaintiff also “requested” that the Court remand this action to state court, without setting a hearing date. The August 4 filing gave insufficient notice if the intent was for it to be heard along with Defendant’s motion. Defendant filed no papers in opposition to the “request.” In any event, the Court has reviewed the request and finds no basis to remand the action. Plaintiff believes there might be “doubts” about complete diversity because of the possibility of other, not-yetnamed, defendants could be California citizens. But the Court only assesses the citizenship of actual parties to the litigation. Were the case to proceed and Plaintiff named a new party, diversity jurisdiction would then have to be reassessed. But, for reasons addressed above in connection with the motion to dismiss, this case will not likely proceed beyond this hearing. Plaintiff also complains about a lack of “unanimity” in the removal, but – even assuming that she has timely raised this procedural defect – she is wrong, factually. NBS did join in the removal. See Notice of Removal at 8:12-13; see also Docket No. 4. Similarly assuming a timely challenge, the Court also rejects Plaintiff’s assertion that Defendant did not timely remove this case. As Defendant explained in its Notice of Removal, see Notice of Removal at 7:24-8:2, Plaintiff never validly served it with the Summons and Complaint, meaning that the 30-day period in which to remove actually never commenced. Plaintiff has not attempted to argue that service she attempted actually complied with state or federal service provisions. In short, the Court rejects Plaintiff’s “request” that it remand this case. 93000/FR2313/01842389-3 3 CASE NO.: CV 17-4809-GW(EX) [PROPOSED] ORDER 1 opposition actually appears to relate to any of the arguments Wells has raised in 2 attacking her Complaint. At least one such argument would dispose of Plaintiff’s 3 entire case if the Court accepts it – that Plaintiff should be judicially estopped from 4 pursuing any of her causes of action because of her failure to list, in her bankruptcy 5 schedules, her alleged claims against Defendants. Rule 12(b)(6) Standard 7 A NGLIN F LEWELLING R ASMUSSEN C AMPBELL & T RYTTEN LLP 6 Under Rule 12(b)(6), concerning whether a complaint has properly stated a 8 claim, a court is to (1) construe the complaint in the light most favorable to the 9 plaintiff, and (2) accept all well-pleaded factual allegations as true, as well as all 10 reasonable inferences to be drawn from them. See Sprewell v. Golden State 11 Warriors, 266 F.3d 979, 988 (9th Cir.), amended on denial of reh’g, 275 F.3d 1187 12 (9th Cir. 2001); Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th Cir. 1998); see also 13 Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009). The court need not accept 14 as true “legal conclusions merely because they are cast in the form of factual 15 allegations.” Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 16 2003). A complaint does not “suffice if it tenders ‘naked assertion[s]’ devoid of 17 ‘further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 18 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)). 19 Dismissal pursuant to Rule 12(b)(6) is proper only where there is either a 20 “lack of a cognizable legal theory or the absence of sufficient facts alleged under a 21 cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 22 (9th Cir. 1990); Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121-22 23 (9th Cir. 2008); see also Twombly, 550 U.S. at 562-63 (dismissal for failure to state 24 a claim does not require the appearance, beyond a doubt, that the plaintiff can 25 prove “no set of facts” in support of its claim that would entitle it to relief). 26 However, a plaintiff must also “plead ‘enough facts to state a claim to relief that is 27 plausible on its face.’” Johnson, 534 F.3d at 1122 (quoting Twombly, 550 U.S. at 28 570). “A claim has facial plausibility when the plaintiff pleads factual content that 93000/FR2313/01842389-3 4 CASE NO.: CV 17-4809-GW(EX) [PROPOSED] ORDER 1 allows the court to draw the reasonable inference that the defendant is liable for the 2 misconduct alleged.” Iqbal, 556 U.S. at 678. In its consideration of the motion, the 3 court is limited to the allegations on the face of the Complaint (including 4 documents attached thereto), matters which are properly judicially noticeable and 5 “documents whose contents are alleged in a complaint and whose authenticity no 6 party questions, but which are not physically attached to the pleading.” See Lee v. A NGLIN F LEWELLING R ASMUSSEN C AMPBELL & T RYTTEN LLP 7 City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001); Branch v. Tunnell, 8 14 F.3d 449, 453-54 (9th Cir. 1994), overruled on other grounds in Galbraith v. 9 County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002). 10 In addition, pro se filings are construed liberally. See, e.g., Hebbe v. Pliler, 11 627 F.3d 338, 342 (9th Cir. 2010); Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th 12 Cir. 2007). “Dismissal of a pro se complaint without leave to amend is proper only 13 if it is absolutely clear that the deficiencies of the complaint could not be cured by 14 amendment.” Weilburg, 488 F.3d at 1205 (quoting Schucker v. Rockwood, 846 15 F.2d 1202, 1203-04 (9th Cir. 1988)); see also Ramirez v. Galaza, 334 F.3d 850, 16 861 (9th Cir. 2003) (“Leave to amend should be granted unless the pleading ‘could 17 not possibly be cured by the allegation of other facts and should be granted more 18 liberally to pro se plaintiffs.’”) (quoting Lopez v. Smith, 203 F.3d 1122, 1130-31 19 (9th Cir. 2000) (en banc)). 20 Judicial Estoppel 21 “‘[J]udicial estoppel is an equitable doctrine invoked by a court at its 22 discretion.’” Ah Quin v. Cnty. of Kauai Dep’t of Transp., 733 F.3d 267, 270 (9th 23 Cir. 2013) (quoting New Hampshire v. Maine, 532 U.S. 742, 750 (2001)). “‘[I]ts 24 purpose is to protect the integrity of the judicial process by prohibiting parties from 25 deliberately changing positions according to the exigencies of the moment.’” Id. 26 (quoting New Hampshire, 532 U.S. at 749-50); see also Hamilton v. State Farm 27 Fire & Cas. Co., 270 F.3d 778, 782 (9th Cir. 2001) (“Judicial estoppel is an 28 equitable doctrine that precludes a party from gaining an advantage by asserting 93000/FR2313/01842389-3 5 CASE NO.: CV 17-4809-GW(EX) [PROPOSED] ORDER 1 one position, and then later seeking an advantage by taking a clearly inconsistent 2 position.”). 3 “‘[S]everal factors typically inform the decision whether to apply the 4 doctrine.’” Ah Quin, 733 F.3d at 270 (quoting New Hampshire, 532 U.S. at 750). 5 “‘First, a party’s later position must be clearly inconsistent with its earlier 6 position.’” Id. (omitting internal quotation marks) (quoting New Hampshire, 532 A NGLIN F LEWELLING R ASMUSSEN C AMPBELL & T RYTTEN LLP 7 U.S. at 750). “‘Second, courts regularly inquire whether the party has succeeded in 8 persuading a court to accept that party’s earlier position, so that judicial acceptance 9 of an inconsistent position in a later proceeding would create the perception that 10 either the first or the second court was misled.’” Id. (quoting New Hampshire, 532 11 U.S. at 750). “‘A third consideration is whether the party seeking to assert an 12 inconsistent position would derive an unfair advantage or impose an unfair 13 detriment on the opposing party if not estopped.’” Id. (quoting New Hampshire, 14 532 U.S. at 751). These are not “‘inflexible prerequisites or an exhaustive formula 15 for determining the applicability of judicial estoppel. Additional considerations 16 may inform the doctrine’s application in specific factual contexts.’” Id. at 270-71 17 (quoting New Hampshire, 532 U.S. at 751). 18 The Ninth Circuit has explained further that “[t]his court invokes judicial 19 estoppel not only to prevent a party from gaining an advantage by taking 20 inconsistent positions, but also because of ‘general consideration[s] of the orderly 21 administration of justice and regard for the dignity of judicial proceedings,’ and to 22 ‘protect against a litigant playing fast and loose with the courts.’” Hamilton, 270 23 F.3d at 782 (quoting Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir. 1990)). “This 24 court has restricted the application of judicial estoppel to cases where the court 25 relied on, or ‘accepted,’ the party’s previous inconsistent position.” Id. at 783. 26 Wells has presented evidence, which the Court may consider on this motion, 27 see, e.g., Rosal v. First Fed. Bank of Cal., 671 F.Supp.2d 1111, 1120-21 (N.D. Cal. 28 2009), that Plaintiff voluntarily filed a Chapter 13 bankruptcy case on May 19, 93000/FR2313/01842389-3 6 CASE NO.: CV 17-4809-GW(EX) [PROPOSED] ORDER 1 2017 (i.e., almost four months after Plaintiff filed this lawsuit). See Request for 2 Judicial Notice in Support of Wells Fargo Bank, N.A.’s Motion to Dismiss the 3 Complaint (“RJN”), Docket No. 8, ¶¶ 7-8 & Exhs. G-H.3 It has also argued and 4 presented supporting evidence of the fact that Plaintiff did not schedule any claims 5 against Wells in connection with that bankruptcy. See RJN, ¶ 9 & Exh. I, at 9. 6 “The Bankruptcy Code and Rules ‘impose upon the bankruptcy debtors an A NGLIN F LEWELLING R ASMUSSEN C AMPBELL & T RYTTEN LLP 7 express, affirmative duty to disclose all assets, including contingent and 8 unliquidated claims.’” Hamilton, 270 F.3d at 785 (quoting Browning Mfg. v. Mims 9 (In re Coastal Plains, Inc.), 179 F.3d 197, 207-08 (5th Cir. 1999)); see also id. at 10 783 (“In the bankruptcy context, a party is judicially estopped from asserting a 11 cause of action not raised in a reorganization plan or otherwise mentioned in the 12 debtor’s schedules or disclosure statements.”); id. a 784 (“Hamilton is required to 13 have amended his disclosure statements and schedules to provide the requisite 14 notice, because of the express duties of disclosure imposed on him by 11 U.S.C. 15 [§] 521(1), and because both the court and Hamilton’s creditors base their actions 16 on the disclosure statements and schedules.”). “Judicial estoppel will be imposed 17 when the debtor has knowledge of enough facts to know that a potential cause of 18 action exists during the pendency of the bankruptcy, but fails to amend his 19 schedules or disclosure statements to identify the cause of action as a contingent 20 asset.” Id. at 784. 21 Given the foregoing, an attempt in this action to assert Plaintiff’s claims 22 would be clearly inconsistent with the assertion, in Plaintiff’s bankruptcy 23 schedules, that she had no such claims. See Dzakula v. McHugh, 746 F.3d 399, 402 24 (9th Cir. 2013). As such, the first New Hampshire factor is satisfied. 25 Unlike most situations where judicial estoppel under New Hampshire is 26 raised, Plaintiff has not obtained a discharge or plan confirmation. However, due to 27 28 3 Plaintiff has not opposed the RJN. 93000/FR2313/01842389-3 7 CASE NO.: CV 17-4809-GW(EX) [PROPOSED] ORDER 1 her having already filed two more bankruptcies in the previous year, Plaintiff was 2 required to move for the bankruptcy court to continue the automatic stay. See RJN, 3 ¶ 10 & Exh. J; 11 U.S.C. § 362(c)(3)(A), (B)4. The bankruptcy court granted the 4 motion with respect to the property at issue in this case. See RJN, ¶ 11 & Exh. K, 5 at 2. 6 In Hamilton, the Ninth Circuit indicated that its holding “does not imply that A NGLIN F LEWELLING R ASMUSSEN C AMPBELL & T RYTTEN LLP 7 the bankruptcy court must actually discharge debts before the judicial acceptance 8 prong may be satisfied,” but instead that “[t]he bankruptcy court may ‘accept’ the 9 debtor’s assertions by relying on the debtor’s nondisclosure of potential claims in 10 many other ways.” Hamilton, 270 F.3d at 784. Specifically, it cited cases finding 11 acceptance where the bankruptcy court had lifted a stay based in part on 12 nondisclosure in bankruptcy schedules and in a lift-stay stipulation and where the 13 14 4 Section 362(c)(3)(A) and (B) read as follows: 15 16 17 18 (3) if a single or joint case is filed by or against a debtor who is an individual in a case under chapter 7, 11, or 13, and if a single or joint case of the debtor was pending within the preceding 1-year period but was dismissed, other than a case refiled under a chapter other than chapter 7 after dismissal under section 707(b)— 19 20 21 22 23 24 25 26 27 28 (A) the stay under subsection (a) with respect to any action taken with respect to a debt or property securing such debt or with respect to any lease shall terminate with respect to the debtor on the 30th day after the filing of the later case; (B) on the motion of a party in interest for continuation of the automatic stay and upon notice and a hearing, the court may extend the stay in particular cases as to any or all creditors (subject to such conditions or limitations as the court may then impose) after notice and a hearing completed before the expiration of the 30-day period only if the party in interest demonstrates that the filing of the later case is in good faith as to the creditors to be stayed;… 11 U.S.C. § 362(c)(3)(A), (B). 93000/FR2313/01842389-3 8 CASE NO.: CV 17-4809-GW(EX) [PROPOSED] ORDER 1 bankruptcy court had approved the debtor’s plan of reorganization. See id. (citing 2 In re Coastal Plains, Inc., 179 F.3d 197, 210 (5th Cir. 1999) and Donaldson v. 3 Bernstein, 104 F.3d 547, 555-56 (3rd Cir. 1997)). “The debtor, once he institutes 4 the bankruptcy process, disrupts the flow of commerce and obtains a stay and the 5 benefits derived by listing all his assets.” Hamilton, 270 F.3d at 785; see also id. 6 (“Hamilton’s failure to list his claims against State Farm as assets on his A NGLIN F LEWELLING R ASMUSSEN C AMPBELL & T RYTTEN LLP 7 bankruptcy schedules deceived the bankruptcy court and Hamilton’s creditors, who 8 relied on the schedules to determine what action, if any, they would take in the 9 matter. Hamilton did enjoy the benefit of both an automatic stay and a discharge of 10 debt in his Chapter 7 bankruptcy proceeding.”). 11 Other courts have found the second New Hampshire factor satisfied when 12 bankruptcy petitioners merely enjoyed the benefit of the automatic stay under 11 13 U.S.C. § 362 in connection with petitions that were later dismissed. See HPG 14 Corp. v. Aurora Loan Servs., LLC, 436 B.R. 569, 577-79 (E.D. Cal. 2010) (“While 15 the bankruptcy petitions were each ultimately dismissed, the individual plaintiffs 16 enjoyed the benefit of these stays, not once, but twice, and, in both instances, failed 17 to comply with the requirement of full, accurate disclosures. Such failure is 18 troubling as to both plaintiffs, but particularly in the case of plaintiff Espinosa, who 19 had filed a lawsuit against defendant Aurora prior to filing his bankruptcy 20 petition.”); see also Sharp v. Nationstar Mortg. LLC, No. 14-CV-00831-LHK, 21 2016 WL 6696134, *2, 4-8 (N.D. Cal. Nov. 15, 2016). But see Boatright v. Aurora 22 Loan Servs., No. C-12-00009 EDL, 2012 WL 2792415, *5-6 (N.D. Cal. July 9, 23 2012) (LaPorte, Mag. J.) (rejecting notion that receipt of automatic stay was 24 sufficient to show plaintiff-debtor successfully caused bankruptcy court to accept 25 his earlier position). Here, Plaintiff actually got the stay extended under 11 U.S.C. 26 § 362(c)(3)(B) when it otherwise would have expired under 11 U.S.C. 27 §362(c)(3)(A). If receipt of the benefit of the automatic stay is sufficient to satisfy 28 the second New Hampshire factor, surely the receipt of an extension of an 93000/FR2313/01842389-3 9 CASE NO.: CV 17-4809-GW(EX) [PROPOSED] ORDER 1 otherwise-expiring automatic stay would suffice. Having not addressed the judicial 2 estoppel issue at all, Plaintiff has neither cited case law, nor given reason, 3 explaining why this analysis is incorrect. 4 Plaintiff gives no indication in her Opposition that she has attempted to 5 amend her bankruptcy schedules, though her bankruptcy case appears to still be 6 pending. See Ah Quin, 733 F.3d at 272, 275-76. “When a plaintiff has not reopened A NGLIN F LEWELLING R ASMUSSEN C AMPBELL & T RYTTEN LLP 7 bankruptcy proceedings, a narrow exception for good faith is consistent with New 8 Hampshire and with the policies animating the doctrine of judicial estoppel.” Id. at 9 272. That “narrow exception for good faith” asks “not whether the debtor’s 10 omission of the pending claim from the bankruptcy schedules was inadvertent or 11 mistaken; instead, [it asks] only whether the debtor knew about the claim when he 12 or she filed the bankruptcy schedules and whether the debtor had a motive to 13 conceal the claim.” Id. at 271. Here, there is absolutely no question Plaintiff knew 14 about the claims she raises in this action – she filed this action several months 15 before she filed her most-recent bankruptcy petition. In Ah Quin, the Ninth Circuit 16 noted that under Circuit law, even where “a plaintiff-debtor corrects the initial 17 mistake and no longer receives a benefit in bankruptcy court, judicial estoppel still 18 applies” (where there is no claim of inadvertence or mistake). Id. at 273; see also 19 Hamilton, 270 F.3d at 784 (holding that an initial “discharge of debt by a 20 bankruptcy court, under these circumstances, is sufficient acceptance to provide a 21 basis for judicial estoppel, even if the discharge is later vacated”); cf. Ah Quin, 733 22 F.3d at 274 n.6 (noting that initial discharge of debt may not be a sufficient 23 advantage to the plaintiff debtor where “the circumstances are materially different” 24 from those present in Hamilton, i.e. where there is a demonstration of inadvertence 25 or mistake). 26 As to the third New Hampshire factor, Plaintiff clearly would “derive an 27 unfair advantage or impose an unfair detriment on the opposing party if not 28 estopped.” She would be able to now advance claims against Defendants – with 93000/FR2313/01842389-3 10 CASE NO.: CV 17-4809-GW(EX) [PROPOSED] ORDER 1 Wells being one of the creditors in her bankruptcy – that she had informed the 2 Bankruptcy Court did not exist, permitting her an unfair advantage vis a vis her 3 creditors. 4 Given the foregoing, the Court has no need to consider any of the arguments 5 Wells raises in its motion or that NBS raises in its joinder.5 The Court will grant 6 the motion to dismiss, without leave to amend. A NGLIN F LEWELLING R ASMUSSEN C AMPBELL & T RYTTEN LLP 7 ACCORDINGLY: 8 IT IS THEREFORE ORDERED: 9 1. Plaintiff’s “Request to Remand” is denied. 10 2. Wells Fargo’s Motion to Dismiss the complaint is dismissed without 11 leave to amend. 12 13 DATED: September 13, 2017 14 GEORGE H. WU, U.S. DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 5 In reaching the decision in this matter, the Court is familiar with the decision in 25 Sadlowski v. Michaels Stores, Inc., 672 Fed. Appx. 729 (9th Cir. 2016). However, 26 that decision is “unpublished” and, hence, has no precedential value. See U.S. Ct. of App. 9th Cir. Rule 36-3. Further, the facts of that case are clearly 27 distinguishable from those in this action. Finally, this Court’s application of law 28 pursuant to the New Hampshire case and its progeny are consistent with the analysis in Sadlowski. 93000/FR2313/01842389-3 11 CASE NO.: CV 17-4809-GW(EX) [PROPOSED] ORDER 1 CERTIFICATE OF SERVICE 2 I, the undersigned, declare that I am over the age of 18 and am not a party to 3 this action. I am employed in the City of Pasadena, California; my business address is Anglin, Flewelling, Rasmussen, Campbell & Trytten LLP, 301 N. Lake 4 Ave, Suite 1100 Pasadena, CA 91101-4158 5 On the date below, I served a copy of the foregoing document entitled: 6 [PROPOSED] ORDER A NGLIN F LEWELLING R ASMUSSEN C AMPBELL & T RYTTEN LLP 7 on the interested parties in said case as follows: 8 Served By Means Other than Electronically Via the Court’s CM/ECF System Served Electronically Via the Court’s CM/ECF System Plaintiff, Pro Se Attorneys for Defendant NBS Default Services, LLC: Lilia Nuno 4172 Woodlawn Ave. Los Angeles, CA 90011 Nabeel Zuberi, Esq. BUCKLEY MADOLE, P.C. 301 E. Ocean Dr., Suite 1720 Long Beach, CA 90802 Tel: (323) 273-6437 9 Tel. | Fax: (562) 983-5363 10 11 12 13 14 15 16 17  18 19 20 BY MAIL: I am readily familiar with the firm’s practice of collection and processing correspondence by mailing. Under that same practice it would be deposited with U.S. Postal Service on that same day with postage fully prepaid at Pasadena, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. 21 I declare under penalty of perjury under 22 America that the foregoing is true and correct. the laws of theI United States of I declare that am employed in the office of a member of the Bar of this Court, at whose direction the service 23 was made. This declaration is executed in Pasadena, California on September 12, 24 2017. 25 26 Carol Goodwin (Type or Print Name) /s/ Carol Goodwin (Signature of Declarant) 27 28 93000/FR2313/01842389-3 CASE NO. 2:17-CV-04809-GW-E CERTIFICATE OF SERVICE

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