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