Singh v. Deutsche Bank National Trust Company et al

Filing 28

ORDER granting with prejudice 20 Motion to Dismiss signed by Judge John A. Mendez on 9/29/10. (Kaminski, H)

Singh v. Deutsche Bank National Trust Company et al

Doc. 28

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

SASHI L. SINGH,

) ) Plaintiff, ) ) v. ) ) AMERICA'S SERVICING COMPANY; NEW ) CENTURY MORTGAGE CORPORATION; ) FIRST AMERICAN LOANSTAR TRUSTEE ) SERVICES; DEUTSCHE BANK NATIONAL ) TRUST COMPANY; MFN MORTGAGE; ) GREGORY LYNN NICHOLS; and DOES ) 1-20, inclusive, ) ) Defendants. ) )

Case No. 2:10-CV-0836-JAM-GGH ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

This matter comes before the Court on Defendants Deutsche Bank National Trust Company and Wells Fargo Bank, N.A. d/b/a America's Servicing Company's ("Defendants'") Motion to Dismiss (Doc. 20) Plaintiff Sashi Singh's First Amended Complaint ("FAC") (Doc. 15). Defendants move to dismiss the three claims

against them in the FAC, for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff opposes

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dismissal of one of the claims.1

For the reasons set forth

below, Defendants' motion is granted.

I.

FACTUAL AND PROCEDURAL BACKGROUND

In March 2006, Plaintiff obtained a $344,149.00 first and $64,528.00 second mortgage ("the Loans") secured by deeds of trust on the property located at 5454 Knotty Pine Way, Sacramento, California ("the property"). The deeds of trust

identified New Century Mortgage Corporation as lender and North American Title Company as trustee. Subsequently, Defendant

America's Servicing Company ("ASC") began servicing the Loans. Plaintiff defaulted on the loans, and a Notice of Default was recorded on June 3, 2009. First American Loanstar Trustee On July

Services was substituted in as trustee on July 9, 2009.

24, 2009, an assignment of the deeds of trust to Deutsche Bank National Trust Company as Trustee for Morgan Stanley ABS Capital 1, Inc. ("Deutsche") was recorded. was recorded on September 24, 2009. A Notice of Trustee's Sale The property was purchased

by Deutsche at a foreclosure sale on January 20, 2010. Plaintiff alleges that prior to the closing of the loan, the mortgage broker Gregory Nichols made numerous misrepresentations to Plaintiff regarding the terms of the loan. Plaintiff brought claims of fraud, negligent misrepresentation and wrongful foreclosure against Defendants. Plaintiff also

brought additional claims against other defendants who are not parties to this motion.
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Plaintiff has voluntarily dismissed

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This motion was determined to suitable for decision without oral argument. E.D. Cal. L.R. 230(g). 2

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defendant First American Loanstar Trustee Services (not a party to this motion), and has voluntarily dismissed all but one of the claims against Defendants. Accordingly, the only remaining

claim against Defendants is a claim for wrongful foreclosure.

II. A. Legal Standard

OPINION

A party may move to dismiss an action for failure to state a claim upon which relief can be granted. 12(b)(6). Fed. R. Civ. P.

In considering a motion to dismiss, the court must

accept the allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Scheur v.

Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Schere, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322 (1972). "Notwithstanding this deference, it is

improper for a court to assume the plaintiff can prove facts which he or she has not alleged." Ozuna v. Home Capital

Funding, 2009 WL 2496804, at *1 (S.D. Cal. Aug. 13, 2009). Assertions that are mere "legal conclusions," are not entitled to the assumption of truth. Ashcroft v. Iqbal, 129 S.Ct. 1937,

1949-50 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To survive a motion to dismiss, a plaintiff needs

to plead "enough facts to state a claim to relief that is plausible on its face." 544, 555, 570 (2007). Bell Atl. Corp. v. Twombly, 550 U.S. Dismissal is appropriate where the

plaintiff fails to state a claim supportable by a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d

696, 699 (9th Cir. 1990). 3

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Upon granting a motion to dismiss, a court has discretion to allow leave to amend the complaint. 15(a). See Fed. R. Civ. Pro.

"Absent prejudice, or a strong showing of any [other

relevant] factor[], there exists a presumption under Rule 15(a) in favor of granting leave to amend." Eminence Capital, L.L.C.

v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (emphasis in original). "Dismissal with prejudice and without leave to

amend is not appropriate unless . . . it is clear that the complaint could not be saved by amendment." Id.

Generally, the court may not consider material beyond the pleadings in ruling on a motion to dismiss for failure to state a claim. Sherman v. Stryker Corp., 2009 WL 2241664, at *2 (C.D. There are two

Cal. Mar. 30, 2009) (internal citations omitted).

exceptions: when material is attached to the complaint or relied on by the complaint, or when the court takes judicial notice of matters of public record, provided the facts are not subject to reasonable dispute. Id. Defendants have requested that the

Court take judicial notice of several of the loan documents which are matters of public record and relied on in the FAC. (Doc. 18, ex. 2). as requested. B. Wrongful Foreclosure The FAC alleges that Defendants wrongfully foreclosed on the property because Defendants are not persons entitled to enforce a security interest in the property pursuant to California Commercial Code §3301. Plaintiff alleges Defendants However, Accordingly, the Court takes judicial notice

cannot produce the Note as required by Section 3301.

as Defendants correctly note, nonjudicial foreclosures are not 4

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governed by California Commercial Code §3301.

See e.g. Pok v.

American Home Mortg. Servicing, Inc., 2010 WL 476674, *7 (E.D. Cal. Feb. 3, 2010). Furthermore, Plaintiff has not alleged tender, which is required under California law to challenge a foreclosure sale. Montoya v. Countrywide Bank, FSB, 2009 WL 1813973, *11 (N.D. Cal. June 25, 2009). ("Under California law, the tender rule

requires that as a precondition to challenging a foreclosure sale, or any cause of action implicitly integrated to the sale, the borrower must make a valid and viable tender of payment of the secured debt.") Lastly, Plaintiff's opposition brief raises new allegations that the cause of action for wrongful foreclosure arises from California Civil Code §2923.5. The Court will not consider new

allegations raised for the first time in the opposition. Moreover, Section 2923.5 does not create a private right of action. Zendejas v. GMAC Wholesale Mortg. Corp., 2010 WL

2629899, *4 (E.D. Cal. June 29, 2010). Accordingly, Plaintiff's FAC has failed to state a claim against Defendants for wrongful foreclosure, and further amendment would be futile. to Dismiss, with prejudice. III. ORDER For the reasons set forth above, Defendants' Motion to Dismiss is GRANTED, WITH PREJUDICE. IT IS SO ORDERED. Dated: September 29, 2010
____________________________ JOHN A. MENDEZ, UNITED STATES DISTRICT JUDGE

The Court grants Defendant's Motion

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