Taylor et al v. Wells Fargo Bank, N.A. et al

Filing 22

ORDER signed by Judge John A. Mendez on 2/12/2015 GRANTING 15 Defendant's motion to dismiss Plaintiffs' First Amended Complaint with prejudice. (Reader, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOHN TAYLOR, an individual;
and ANITA TAYLOR, an
individual,

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Plaintiffs,

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No.

2:14-cv-02007-JAM-CMK

ORDER GRANTING WELLS FARGO’S
MOTION TO DISMISS

v.
WELLS FARGO BANK, N.A.; CALWESTERN RECONVEYANCE CORP.,
and DOES 1-50, inclusive

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Defendants.

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Defendant Wells Fargo Bank, N.A. (“Wells Fargo”) moves to

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dismiss (Doc. #15) Plaintiffs John and Anita Taylor’s

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(collectively “Plaintiffs”) first amended complaint (“FAC”) (Doc.

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#14). 1

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///

The motion is granted for the reasons set forth below.

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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled
for February 11, 2015.
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I.

FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

The factual allegations in the FAC are identical to those in

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the original complaint (Doc. #1, Exh. A) and will not be

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recounted at length here.

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premised on alleged misrepresentations by Wells Fargo that it

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would not foreclose on a property despite Plaintiffs’ default on

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the underlying loan.

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foreclosure and subsequent sale of their property and allege they

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would have reinstated the loan had they known that the

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In brief, Plaintiffs’ claims are

Plaintiffs allege procedural defects in the

foreclosure sale would take place.
The Court dismissed the original complaint in its entirety

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with leave to amend (Doc. #13).

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the FAC, restating causes of action for (1) Wrongful Foreclosure;

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(2) Negligent Misrepresentation; (3) Fraud; and (4) Quiet Title

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and eliminating the cause of action for Breach of the Implied

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Covenant of Good Faith and Fair Dealing. Plaintiffs’ FAC is

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nearly identical to the original complaint, contains only minimal

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and non-substantive changes and fails to cure the defects of the

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original complaint.

Subsequently, Plaintiffs filed

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II.

OPINION

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A.

Request for Judicial Notice

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Wells Fargo requests the Court take judicial notice (Doc.

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#16) of numerous exhibits in support of its motion to dismiss.

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Generally, the Court may not consider material beyond the

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pleadings in ruling on a motion to dismiss for failure to state a

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claim.

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the complaint so long as authenticity is not disputed, or matters

The exceptions are material attached to, or relied on by,

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of public record, provided that they are not subject to

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reasonable dispute.

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2241664, at *2 (C.D. Cal. 2009) (citing Lee v. City of Los

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Angeles, 250 F.3d 668, 688 (9th Cir. 2001) and Fed. R. Evid.

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201).

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E.g., Sherman v. Stryker Corp., 2009 WL

The Court takes judicial notice of Wells Fargo’s exhibits as

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they are all either public or court records not subject to

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reasonable dispute, information obtained from government

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websites, or documents reflecting official acts of the executive

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branch of the United States.

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Wells Fargo Bank, NA, No. SA CV 13-0303-DOC, 2013 WL 2047000, at

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*1 n.3 (C.D. Cal. 2013); Hines v. Wells Fargo Home Mortgage,

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Inc., No. 2:14-CV-01386 JAM-KJN, 2014 WL 5325470, at *3 (E.D.

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Cal. 2014).

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B.

Fed. R. Evid. 201; Williams v.

Discussion
1.

Wrongful Foreclosure

Wells Fargo moves to dismiss Plaintiffs’ cause of action for

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wrongful foreclosure.

MTD at pp. 5-9.

After carefully reviewing

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the FAC, the Court finds Plaintiffs have failed to address any of

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the deficiencies identified by the Court in its previous order

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dismissing the original complaint and have simply restated the

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original factual allegations verbatim.

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The Court therefore grants Wells Fargo’s motion to dismiss

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Plaintiffs’ wrongful foreclosure cause of action for failure to

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allege the ability to tender the full amount of their

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indebtedness or a basis for excusing them from the requirement.

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See Gilliland v. Chase Home Fin., LLC, No. 2:13-CV-02042 JAM-AC,

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2014 WL 325318, at *5 (E.D. Cal. 2014).
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As is clear by

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Plaintiffs’ failure to amend their pleading in any substantive

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manner, the Court finds granting Plaintiffs further leave to

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amend would be futile. See DeSoto v. Yellow Freight Sys., Inc.,

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957 F.2d 655, 658 (9th Cir. 1992); Dick v. Am. Home Mortgage

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Servicing, Inc., CIV. 2:13-00201 WBS, 2013 WL 5299180, at *6

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(E.D. Cal. 2013).

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with prejudice.

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2.

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As a result, the Court dismisses the claim

Negligent Misrepresentation and Fraud

Wells Fargo contends Plaintiffs’ claims for negligent

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misrepresentation and fraud also fail on the merits.

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9-13.

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as fatal to these causes of action in the original complaint.

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stated previously, Plaintiffs were already contractually

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obligated to make loan payments and were aware of the

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consequences of failing to do so, default and foreclosure.

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Zierolf v. Wachovia Mortgage, C-12-3461 EMC, 2012 WL 6161352, at

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*5-7 (N.D. Cal. 2012), appeal dismissed (July 31, 2013) (finding

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“[t]he risk that one's home loan could go into default and one's

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home be sold at a foreclosure auction for nonpayment is a remedy

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provided in the loan agreement itself, not a consequence of

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allegedly relying on promises to process a loan modification”).

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MTD at pp.

Plaintiffs have not addressed the issues the Court cited
As

See

The Court is required to once again grant Defendant’s motion

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to dismiss Plaintiffs’ causes of action for negligent

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misrepresentation and fraud based on Plaintiffs’ failure to

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adequately allege damages as a result of the misrepresentations,

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a necessary element of each claim.

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failure to adequately state claims for negligent

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misrepresentation and fraud, the Court finds granting leave to
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Based on Plaintiffs’ repeated

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amend would be futile.

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WL 5299180, at *6.

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with prejudice.

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See DeSoto, 957 F.2d at 658; Dick, 2013

Both causes of action are therefore dismissed

3. Quiet Title
Finally, Wells Fargo moves to dismiss Plaintiffs’ cause of

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action for quiet title.

MTD at pp. 13-14.

In their opposition,

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Plaintiffs’ consent to the dismissal of this claim but request

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that it be without prejudice.

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Plaintiffs also indicate that if they were allowed to file a

Opp. at pp. 1, f.n. 1, 3-4.

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second amended complaint this claim would be omitted. Given that

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the Court is not granting leave to amend the other causes of

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action and this claim would not have been included in an amended

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complaint, Plaintiff’s request is denied.

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III.

ORDER

Defendant’s motion to dismiss Plaintiffs’ First Amended
Complaint is GRANTED WITH PREJUDICE.
IT IS SO ORDERED.
Dated: February 12, 2015

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