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

Filing 87

ORDER by Judge Joseph C. Spero denying 62 Motion to Dismiss; granting 63 Motion to Remand; denying 64 Motion to Dismiss. (jcslc3, COURT STAFF) (Filed on 3/8/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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EUGENE PEREZ, et al.,
Plaintiffs,

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v.

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Case No.: C-11-02279 JCS
ORDER GRANTING PLAINTIFFS’
MOTION TO REMAND; DENYING
DEFENDANTS’ MOTIONS TO
DISMISS

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Northern District of California

United States District Court

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WELLS FARGO BANK, N.A., et al.,
Defendants.

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I.

INTRODUCTION
Plaintiffs Eugene Perez and Herenia Perez (“Mrs. Perez”) (“Plaintiffs”) allege four causes of

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action against Defendants Wells Fargo Bank, N.A. (“Wells Fargo”) and First American Loanstar

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Trustee Services LLC (“Loanstar”) (“Defendants”) arising out of the events surrounding the

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foreclosure sale of Plaintiffs‟ real property located at 95 Monterey Drive, Daly City, California

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(“Property”). Presently before the Court are three Motions: (1) Plaintiffs‟ Motion to Remand Case to

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State Court (“Motion to Remand”); (2) Wells Fargo‟s Motion to Dismiss Plaintiff‟s Second Amended

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Complaint (“Wells Fargo Motion”); and (3) Loanstar‟s Motion to Dismiss Plaintiff‟s Second

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Amended Complaint (“Loanstar Motion”). A hearing on the Motions was held on February 15, 2013

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at 9:30 a.m. For the reasons discussed below, the Court GRANTS Plaintiffs‟ Motion to Remand and

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DENIES both Defendants‟ Motions to Dismiss.1

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II.

REQUESTS FOR JUDICIAL NOTICE
Wells Fargo and Loanstar have each filed a request for judicial notice of various documents

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that they are assert are either matters of public record or directly referenced in Plaintiffs‟ Second

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Amended Complaint (“SAC”). See Docket Nos. 62 & 65 (hereinafter “Wells Fargo RJN” and

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The parties have consented to the jurisdiction of a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).

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“Loanstar RJN”). Plaintiffs have not objected to Defendants‟ requests or challenged the authenticity

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of any of the attached documents. Each of the documents is either a public record or is referenced in

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the SAC. Accordingly, the Court takes judicial notice of all of the documents offered in Defendants‟

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requests for judicial notice pursuant to Rule 201 of the Federal Rule of Evidence. The Court may

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consider the documents of which it takes judicial notice, along with the allegations of Plaintiff‟s

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Complaint, on a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. See

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Catholic League for Religious and Civil Rights v. City and County of San Francisco, 464 F.Supp.2d

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938, 941 (N.D. Cal. 2006).

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III.

BACKGROUND

Northern District of California

A.

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United States District Court

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The Second Amended Complaint

Plaintiffs state that Mrs. Perez refinanced the Property on August 17, 2007 by borrowing

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$525,000.00 from Wells Fargo. SAC, ¶ 10. The 8.5% interest only loan was secured by a deed of

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trust on the Property. Id. The monthly interest only payment was $3,718.75. Id.

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As of October 2008, Mrs. Perez had missed two payments on the note. Id. at ¶ 11. Wells

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Fargo offered her a forbearance agreement under which it would agree to modify the loan if she made

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three monthly payments of $4,917.59 beginning on November 30, 2008, and one payment of

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$8,432.94 on February 28, 2009. Id. Plaintiffs contend that the forbearance agreement, with its

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increased monthly payments, was an unconscionable contract of adhesion. Id. at ¶ 12. Mrs. Perez

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made the first two payments, but was unable to make the last two payments. Id.

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On March 18, 2009, Wells Fargo recorded a notice of default. Id. at ¶ 13. A trustee‟s sale was

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scheduled for July 9, 2009. Id. The sale was postponed after Plaintiffs filed a number of bankruptcy

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petitions beginning in April 2009. Id. At some point, the sale was set for November 24, 2009. Id. at

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¶ 14. In November 2009, Mrs. Perez retained an attorney, John P. Skowronski (“Skowronski”) to

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assist her in applying for a loan modification. Id. Pursuant to Wells Fargo‟s policy, the sale was

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postponed a number of times pending its consideration of Mrs. Perez‟s application. Id. at ¶¶ 14-15.

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The date was pushed back to December 14, 2009, then to January 25, 2010, then to February 24,

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2010. Id. at ¶ 15.

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On February 11, 2010, a Wells Fargo agent named Amanda informed Skowronski that

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Plaintiffs‟ property was out of foreclosure. Id. at ¶ 16. Wells Fargo delayed in processing Mrs.

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Perez‟s application for a loan modification until June 17, 2010. Id. at ¶ 17. At that point, a Wells

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Fargo manager named Jost Farber notified Skowronski that the case was being transferred from

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Amanda to Kelly. Id. That same day, Kelly requested documents from Mrs. Perez. Id. On June 22,

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2010, Dr. Nicholas Agbabiaka (“Agbabiaka”) faxed Wells Fargo the requested documents on Mrs.

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Perez‟s behalf. Id. at ¶ 18. The next day, June 23, 2010, Agbabiaka called Kelly to confirm that he

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had faxed the requested documents to the correct number. Id. at ¶ 19.

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At some point, the foreclosure sale was rescheduled for June 28, 2010. See id. During the

Northern District of California

June 23, 2010 phone call, Kelly confirmed to Agbabiaka that the June 28, 2010 foreclosure sale had

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United States District Court

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been canceled. Id. On June 26, 2010, Agbabiaka called Loanstar‟s status line to check the status of

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the June 28, 2010 foreclosure sale. Id. at ¶ 20. The recorded message stated that the sale had been

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canceled. Id. Agbabiaka, Mrs. Perez, and Agbabiaka‟s associate Alexander Nixon heard the recorded

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message. Id. Even so, the foreclosure sale was held on June 28, 2010. Id. at ¶ 21.

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Plaintiffs allege that there were no bidders at the foreclosure sale, so the property reverted to

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Wells Fargo. Id. A trustee‟s deed was recorded on July 2, 2010. Id. At the time of the sale,

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Plaintiffs allege that Wells Fargo stated that Mrs. Perez owed $617,953.10 on the loan. Id. Plaintiffs

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contend that the fair market value of the house on the date of the sale was $740,000.00. Id. at ¶ 24.

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Wells Fargo ultimately sold the house to a third party on or about March 30, 2011 for approximately

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$645,000.00. Id. at ¶ 25.

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In a letter dated August 10, 2010, Plaintiffs contend that Wells Fargo notified Mrs. Perez that

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intended to modify her loan by reducing the interest rate such that her interest only payment was

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going to be reduced by $1,093.75 to $2,625.00. Id. at ¶ 22. Plaintiffs were evicted from the Property

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in or around December 2010, and were unable to collect all of their personal belongings. Id. at ¶ 23.

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Plaintiffs allege four causes of action:

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(1)

Violation of the Rosenthal Fair Debt Collection Practices Act (“Rosenthal Act”),

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California Civil Code Sections 1788, et seq., by Defendant Wells Fargo: Plaintiffs contend that

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Wells Fargo was a debt collector engaged in debt collection practices within the meaning of the

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Rosenthal Act because it was collecting on a mortgage debt pursuant to the terms of the loan. Id. at ¶

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28. Plaintiffs allege that Wells Fargo knowingly and willfully violated the Rosenthal Act by using

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false, deceptive, and misleading statements in connection with its collection of Plaintiffs‟ debt. Id. at

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¶ 29. Plaintiffs base their claim on the allegation that Wells Fargo falsely told their agent that the sale

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scheduled for June 28, 2010 had been canceled thereby deceiving and misleading them into believing

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that the sale would not proceed. Id. at ¶¶ 30-31. Plaintiffs contend that this statement caused them to

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lose equity in their property, to lose their personal property, and to suffer severe emotional distress.

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Id. at ¶ 32.

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(2)

Violation of California Business and Professions Code Sections 17200, et seq.

Northern District of California

(“UCL”), by both Defendants: Plaintiffs allege that Wells Fargo engaged in unfair and fraudulent

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United States District Court

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business practices in violation of the UCL when it induced Mrs. Perez to enter into the forbearance

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agreement as a means of curing a two-month delinquency. Id. at ¶ 35. Plaintiffs contend that Wells

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Fargo knew or should have known that Mrs. Perez could not afford the higher forbearance payments

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so she was bound to default on the arrangement. Id. Plaintiffs also contend that Wells Fargo knew or

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should have known that it would be able to commence foreclosure proceedings as soon as the note

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was three months delinquent. Id.

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Plaintiffs further allege that Wells Fargo engaged in unfair, fraudulent, and unlawful business

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practices in violation of the Rosenthal Act when its agent falsely told Mrs. Perez‟s agent that the

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trustee sale scheduled for June 28, 2010 had been canceled pending a decision on her application for a

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loan modification. Id. at ¶¶ 36, 38. Similarly, Plaintiffs allege that Loanstar engaged in unfair,

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fraudulent, and unlawful business practices in violation of the Rosenthal Act when it falsely notified

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Plaintiffs, via a recorded message, that the June 28, 2010 trustee‟s sale had been canceled. Id. at ¶¶

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37-38.

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Plaintiffs claim that Defendants UCL violations caused them to lose equity in their property,
lose personal property, and suffer severe emotional distress. Id. at ¶ 39.
(3)

Wrongful Foreclosure, California Civil Code Sections 2924, et seq., by both

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Defendants: Plaintiffs allege that Defendants violated the notice provisions of California Civil Code

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section 2924 by proceeding with the foreclosure sale even though they had given notice that the June

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28, 2010 sale had been canceled. Id. at ¶¶ 42-43. Plaintiffs claim that this caused them to lose equity

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in their property, lose personal property, and suffer severe emotional distress. Id. at ¶ 44.

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(4)

Negligence by Wells Fargo: Plaintiffs allege that Wells Fargo had a duty to use

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reasonable care in processing Mrs. Perez‟s application for a loan modification. Id. at ¶ 45.2 Plaintiffs

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allege that Wells Fargo breached that duty by selling Plaintiffs‟ Property at the trustee sale even

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though Wells Fargo was still considering Mrs. Perez‟s application for a loan modification and told her

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agent that the sale had been canceled. Id. at ¶ 46. Plaintiffs claim that, as a proximate result of this

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negligence, they lost equity in their property, lost personal property, and suffered severe emotional

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distress. Id. at ¶ 47.

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B.

Northern District of California

United States District Court

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Motion to Remand
1.

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Motion

Plaintiffs move to remand the proceedings to state court. First, Plaintiffs argue that the Court

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retains no federal question jurisdiction over this case because the Court dismissed Plaintiffs‟ lone

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federal cause of action, a Truth in Lending Act (“TILA”) claim, and that claim is not put forward in

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the SAC. Motion to Remand, 3, 6-7. Second, Plaintiffs contend that no diversity jurisdiction exists

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because Wells Fargo is a citizen of California and South Dakota. Id. at 4. (citing Horton v. Bank One,

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N.A., 387 F.3d 426, 436 (5th Cir. 2004) (national bank is a citizen of the state listed in its articles of

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association and the state where its principal place of business is located); Firstar Bank v. Faul, 253

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F.3d 982, 994 (7th Cir. 2001) (same)).

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Third, Plaintiffs argue that, because the federal claim was dismissed and diversity is lacking,

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the Court must decide whether to exercise supplemental jurisdiction or to remand the case to state

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court. Id. at 7 (citing Millar v. Bay Area Rapid Transit Dist., 236 F.Supp.2d 1110, 1119 (N.D. Cal.

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2002)). Plaintiffs contend that the relevant factors – judicial economy, convenience, fairness, and

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comity – militate in favor or remand. Id. at 8 (citing Millar, 236 F.Supp.2d at 1119). Plaintiffs state

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that the case is about a year from trial because no discovery has been conducted after the filing of the

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SAC, and trial preparation should be conducted in state court as state law will apply. Id. at 8-10.

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Plaintiffs contend that fairness considerations also favor remand, because the federal law for

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The SAC contains two paragraphs numbered 45. This citation refers to the second of those paragraphs.

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facilitating settlements is more favorable to Defendants whereas the state law for facilitating

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settlements is more balanced. Id. at 10-11 (citing Cal. Code Civ. P. § 998; Fed. R. Civ. P. § 68).

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Plaintiffs argue that convenience does not cut either way, as the relevant courthouses are within thirty

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miles of each other. Id. at 11. Finally, Plaintiffs state that they did not engage in forum shopping. Id.

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at 11-12.

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2.

Opposition

Wells Fargo opposes the Motion to Remand for two reasons.3 First, Wells Fargo contends that

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there is complete diversity among the parties.4 Wells Fargo‟s Opposition to Motion to Remand

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(“Opposition to Remand”), 3-17.

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Wells Fargo contends that it is a citizen of South Dakota, not California. Id. at 3, 13-14 (citing

Northern District of California

United States District Court

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a number of District Court opinions in California reaching the same conclusion). Wells Fargo relies

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on Wachovia Bank v. Schmidt, 546 U.S. 303, 317 n.9, 126 S.Ct. 941, 163 L.Ed.2d 797 (2006). Id. In

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Schmidt, the Supreme Court held that a national bank is a citizen of the state in which its main office,

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as set forth in its articles of incorporation, is located. Id. Wells Fargo‟s main office, as set forth in its

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articles of incorporation, is located in Sioux Falls, South Dakota. Id. Wells Fargo acknowledges that

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Schmidt did not decide whether a citizen of a second state wherein its principal place of business is

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located. Id. at 4.

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Wells Fargo argues that Schmidt abrogates American Surety Co. v. Bank of California, 133

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F.2d 160 (9th Cir. 1943). Id. at 5-7. American Surety, Ninth Circuit authority holding that a national

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bank is only a citizen of the state in which its principal place of business is located. Id. Wells Fargo

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argues that this conclusion is irreconcilable with the Schmidt court‟s holding that a national bank is a

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citizen of the state where its main office is located, as identified in its articles of incorporation. Id. at

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7. In addition, Wells Fargo contends that American Surety was abrogated by statute, as 12 U.S.C. §

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36(g)(3)(B) now identifies the term “home State” to mean “the State in which the main office of a

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national bank is located.” Id. at 8. Wells Fargo notes, in particular, that “State” is used in the

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singular. Id. Wells Fargo proceeds to argue that American Surety was wrongly decided because, at

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the time, the principal place of business test was not used for corporations. Id. at 9 (citing Hertz Corp.

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Loanstar did not file an opposition to the Motion to Remand.
Wells Fargo does not argue that federal question jurisdiction exists in this case.

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v. Friend, 559 U.S. 77, 130 S.Ct. 1181, 1187-1190, 175 L.Ed.2d 1029 (2010)). Finally, Wells Fargo

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contends that American Surety merely assumed the principal place of business test was the standard

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for determining a national bank‟s citizenship. Id. at 11.

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Wells Fargo implicitly concedes that Loanstar is a citizen of California. Wells Fargo argues

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that Loanstar‟s citizenship should be disregarded because it was either fraudulently joined or it is a

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nominal defendant. Id. at 14-17. Wells Fargo argues that Loanstar was fraudulently joined because

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(1) there is no possibility Plaintiffs will establish a cause of action in state court against Loanstar; and

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(2) Plaintiffs have little interest in prosecuting a claim against Loanstar but strategically amended

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their First Amended Complaint to bring Loanstar back into the lawsuit to destroy diversity

Northern District of California

jurisdiction. Id. at 14-16 (citing Moreno v. Wells Fargo, 2011 WL 6372637, at *5-*6 (N.D. Cal. Dec.

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United States District Court

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20, 2011)). Wells Fargo alternatively contends that Loanstar is a nominal defendant. Id. at 16-17.

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Wells Fargo states that a nominal defendant is one, such as a trustee, that holds the subject matter of

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the litigation in a subordinate or possessory capacity and is joined to facilitate collection. Id. at 16

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(citing S.E.C. v. Colello, 139 F.3d 674, 676 (9th Cir. 1998)). Wells Fargo concedes that substantive

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allegations against the trustee can mean that the trustee is no longer a nominal party. Id. (citing

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Beiermann v. JP Morgan Chase Bank, N.A., 2012 WL 1377094, at *2 (W.D. Wash. Apr. 19, 2012)).

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Wells Fargo argues that there are insufficient substantive allegations against Loanstar to make it any

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more than a nominal party. Id. at 17.

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Second, Wells Fargo argues that, if the Court finds diversity jurisdiction is lacking, it should

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exercise its supplemental jurisdiction over this case. Id. at 17-18. Wells Fargo states that this is

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proper because (1) the complaint has been amended twice before this Court; (2) there would be a

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significant delay before a demurrer would be heard in state court; and (3) Wells Fargo has put

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substantial effort and resources into litigating this case for a prolonged period of time and remand

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would force them to begin anew. Id. at 18.

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3.

Reply

Plaintiffs contend that the Schmidt court would have held that the principal place of business

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standard applies to national banks if it had been required to reach the issue. Plaintiff‟s Reply in

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Support of Motion to Remand, 1-6. Plaintiffs argue that this result would put national banks on equal

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footing with state banks and other state-incorporated entities. Id. at 4-5. In addition, Plaintiffs

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contend that American Surety remains binding precedent. Id. at 6-10 (citing a number of California

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District Court opinions following American Surety after Schmidt was decided). Plaintiffs state that

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only one other Ninth Circuit case addressed the issue of a national bank‟s citizenship for diversity

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purposes. Id. at 7. That case followed American Surety. Id. at 7 n.1 (citing Bank of California, N.A.

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v. Twin Harbors Lumber Co., 465 F.2d 489 (9th Cir. 1972) (“The Bank, for diversity purposes, is a

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„citizen‟ of California”)).

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Next, Plaintiffs contend that Loanstar was not strategically returned to the case for the

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purposes of defeating diversity. Id. at 12. Plaintiffs argue that their attorney was unaware of

Northern District of California

Loanstar‟s citizenship until it was addressed in Wells Fargo‟s Opposition. Id. Plaintiffs state that

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United States District Court

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they are now aware that Loanstar is a California citizen. Id. at 11 (citing Declaration of Ronald W.

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Carter, ¶¶ 2-3). In addition, Plaintiffs argue that they can state a claim against Loanstar, which is

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more than a nominal defendant, because Loanstar announced that the sale was canceled before

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executing the sale. Id. at 13.

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C.

1.

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Motions to Dismiss

(1)

Wells Fargo Motion

Rosenthal Act: Wells Fargo states that Plaintiffs‟ Rosenthal Act claim is based on the

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allegation that Wells Fargo “falsely told Mrs. Perez‟s agent that the trustee that was scheduled for

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June 28, 2010, had been cancelled pending a decision on her application for a loan modification.”

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Wells Fargo Motion, 7 (citing SAC, ¶ 30). Wells Fargo argues that this claim fails for two reasons.

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First, Wells Fargo contends that the Rosenthal Act claim fails because foreclosure related actions do

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not implicate the Act. Id. (citing Reyes v. Wells Fargo Bank, 2011 WL 30759, at *19 (N.D. Cal. Jan.

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3, 2011) (“the mere allegation that a defendant foreclosed on a deed of trust does not implicate the

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Rosenthal Act”)). Wells Fargo concedes that a remedy may exist under the Rosenthal Act where the

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alleged debt collection activities go “beyond the scope of the ordinary foreclosure process.” Id. at 7-8

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(quoting Walters v. Fidelity Mortg. of Cal., Inc., 720 F.Supp.2d 1185 (E.D. Cal. 2010) (involving a

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“pattern or improper conduct”)). Wells Fargo argues that it has not engaged in debt collection

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activities beyond the scope of the ordinary foreclosure process because its actions amounted to several

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attempts to assist Plaintiffs in avoiding foreclosure. Id. at 8.

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Second, Wells Fargo argues that any statement it made to the effect that the June 28, 2010

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foreclosure sale was canceled amounted to a gratuitous oral promise that is unenforceable under the

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statute of frauds. Id. at 8-10 (citing Mehta v. Wells Fargo Bank, N.A., 737 F.Supp.2d 1185, 1197

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(S.D. Cal. 2010)). Wells Fargo also notes that Plaintiffs have not alleged how they would have

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modified their behavior absent the alleged misinformation. Id. at 9. Wells Fargo contends that

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Plaintiffs would have been unable to do anything to prevent foreclosure, given their financial

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circumstances. Id.

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(2)

UCL: Wells Fargo argues that Plaintiffs failed to state a claim under the UCL for four

Northern District of California

United States District Court

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reasons. Id. at 10-12. First, Wells Fargo argues that Plaintiffs seek damages, but damages are

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unavailable under the statute. Id. at 10 (citing Nat’l Rural Telecomms. Co-op v. DIRECTV, Inc., 319

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F.Supp.2d 1059, 1078 (C.D. Cal. 2003); Bank of the West v. Superior Court, 2 Cal.4th 1254, 1266, 10

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Cal.Rptr.2d 538, 833 P.2d 545 (1992); Oracle Corp. v. DrugLogic, Inc., 2011 WL 5576267, at *9

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(N.D. Cal. Nov. 16, 2011)).

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Second, Wells Fargo contends that any oral representation by Wells Fargo or Loanstar that the

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June 28, 2010 foreclosure sale was canceled constituted an unenforceable gratuitous oral promise. Id.

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at 10-11 (citing Mehta, 737 F.Supp.2d at 1197). In addition, Wells Fargo contends that Plaintiffs have

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not explained how they would have altered their behavior in the absence of this oral misinformation.

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Id. at 11.

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Third, Wells Fargo argues that it was no longer considering Plaintiffs for loan modification at

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the time of foreclosure. Id. Wells Fargo contends that the letter Plaintiffs identify as a modification

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was merely a standard notice of a change in interest rate that would have applied if Mrs. Perez had

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kept up with her original payments. Id. In addition, Wells Fargo contends that it was never under any

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obligation to consider Plaintiffs for a loan modification. Id. at 12 (citing Hamilton v. Greenwich

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Investors XXVI, LLC, 195 Cal.App.4th 1602, 1617, 126 Cal.Rptr.3d 174 (2011)).

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Fourth, Wells Fargo contends that it did not violate the UCL by offering Mrs. Perez a

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forbearance agreement. Id. at 12. Wells Fargo states that the SAC identifies no authority to the

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contrary. Id.

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(3)

Wrongful Foreclosure: Wells Fargo argues that Plaintiffs‟ wrongful foreclosure claim

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fails under the tender rule. Id. at 13 (citing Order Granting Defendants‟ Motion to Dismiss Plaintiffs‟

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Complaint (“Dkt. No. 25”), 26:7-19).

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(4)

Negligence: Wells Fargo states that Plaintiffs‟ negligence claim is premised on the

modification. Id. at 14 (citing SAC, ¶ 46). Wells Fargo contends that it did not owe Plaintiffs any

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duty because it did not exceed its traditional role as a lender of money. Id. (citing Nymark v. Heart

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Northern District of California

completion of the foreclosure sale while Wells Fargo was considering Plaintiffs‟ application for a loan

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United States District Court

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Fed. Sav. & Loan Ass’n, 231 Cal.App.3d 1089, 1095-1096 (1991)).

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2.

Loanstar Motion

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Loanstar contends that it is immune from liability because its acts as a trustee are privileged.

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Loanstar Motion, 4-5 (citing Cal. Civ. Code §§ 47, 2924(d); Kachlon v. Markowitz, 168 Cal.App.4th

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333-334, 85 Cal.Rptr.3d 352 (2008)). Loanstar notes that Plaintiffs‟ only allegation of wrongful

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conduct on the part of Loanstar is that it falsely notified Plaintiffs that the June 28, 2010 foreclosure

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sale had been canceled but proceeded with the sale. Id. at 4. Loanstar contends that this allegation is

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insufficient to break its immunity because Plaintiffs did not allege that Loanstar acted with malice.

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Id. at 5 (citing Kachlon, 168 Cal.App.4th at 333-334, 339-342, 85 Cal.Rptr.3d 352). In addition,

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Loanstar argues that Plaintiffs‟ allegation is incorrect because an automated message cannot serve as

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notice of a sale cancelation. Id. at 7 (citing Cal. Civ. Code § 2924g(c)). Loanstar also states that

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Plaintiffs have not alleged any actions beyond its statutorily protected role of a foreclosure trustee,

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executed in good faith reliance on instructions given in good faith by Wells Fargo. Id. at 5-6.

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(1)

UCL: Loanstar states that a UCL claim must rely on underlying unlawful, unfair, or

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fraudulent conduct. Id. at 8 (citing Bernardo v. Planned Parenthood Federation of America, 115

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Cal.App.4th 322, 9 Cal.Rptr.3d 197 (2004)). First, Loanstar contends that Plaintiffs have not satisfied

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the “fraudulent” prong because they have not alleged the underlying fraud with particularity. Id.

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(citing Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir. 2007)). Next, Loanstar asserts that the UCL

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1

claim fails because Plaintiffs have not alleged how they were damaged by Loanstar‟s putative

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wrongful conduct. Id. at 8-9. Specifically, Loanstar states that Plaintiffs have not explained what

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they could have done to avoid foreclosure in the absence of the information on the automated line. Id.

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In addition, Loanstar argues that Plaintiffs have not alleged any elements of emotional distress, that

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they had any equity in their property to begin with, or that they lost any personal property. Id. at 9.

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Loanstar does not directly address the “unlawful” or “unfair” prongs. Loanstar does note that

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“unlawful” conduct must be alleged in terms of the statute violated, implying that Plaintiffs failed to

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do so. Id. at 8.

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(2)

Wrongful Foreclosure: Loanstar asserts that Plaintiffs‟ wrongful foreclosure claim

Northern District of California

fails under the tender rule. Id. at 6. In addition, Loanstar argues that Plaintiffs have no claim for

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United States District Court

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wrongful foreclosure because they were not given statutory notice that the foreclosure sale had been

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postponed or canceled. Id. at 7 (citing Cal. Civ. Code § 2924g(c)).

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3.

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Opposition to Each Motion

Plaintiffs opposed each motion to dismiss. As a general matter, Plaintiffs argue that Loanstar

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is not immune from liability where it conducted the trustee sale after giving notice that the sale had

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been canceled. Opposition to Loanstar‟s Motion to Dismiss (“Opposition to Loanstar”), 7-9.

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Plaintiffs contend that malice is apparent where the trustee went forward with a sale that it had

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previously canceled. Id. at 9. In addition, Plaintiffs state that there is nothing in the SAC to show that

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Loanstar acted in good faith reliance on any information given to it in good faith by Wells Fargo. Id.

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at 7.

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(1)

Rosenthal Act: Plaintiffs assert that their SAC demonstrates action beyond the scope

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of the ordinary foreclosure process because they alleged that (a) the forbearance agreement required

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Mrs. Perez to make higher monthly payments, driving her into foreclosure, and that (b) Wells Fargo

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delayed in processing Mrs. Perez‟s loan modification application, told Mrs. Perez‟s agent on February

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11, 2010 that her property was out of foreclosure, told Mrs. Perez‟s agent on June 22, 2010 that the

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June 28, 2010 sale had been canceled, and thereafter proceeded with the June 28, 2010 sale.

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Opposition to Wells Fargo‟s Motion to Dismiss (“Opposition to Wells Fargo”), 3-4. Plaintiffs argue

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that Wells Fargo‟s arguments premised on the statute of frauds are inapplicable here because Plaintiffs

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are not attempting to enforce an agreement. Id. at 4-6. Plaintiffs finally note that the use of the word

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“canceled” instead of “postponed” indicated that the entire foreclosure process would have had to be

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initiated from scratch. Id. at 6.

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(2)

UCL: Plaintiffs contend that their SAC contains a viable UCL cause of action. First,

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Plaintiffs assert that they described “unfair” business practices, regardless of whether they established

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“fraudulent” business practices. Opposition to Loanstar, 6. Second, Plaintiffs contend that they

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sufficiently pled “unlawful” business practices by both parties based on violations of the Rosenthal

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Act. Id. Third, Plaintiffs argue that they are permitted to seek money damages under the UCL.

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Opposition to Wells Fargo, 6-7 (citing Cal. Bus. & Prof. Code § 17203). Fourth, Plaintiffs state that

Northern District of California

they alleged loss of equity in their home based on the difference between the market value of the

11
United States District Court

10

home and the outstanding debt they owed Wells Fargo. Opposition to Loanstar, 5; Opposition to

12

Wells Fargo, 7. Plaintiffs contend that they did not need to establish the elements of emotional

13

distress because they did not allege a distinct emotional distress-based cause of action. Opposition to

14

Loanstar, 5. Fifth, Plaintiffs argue that Wells Fargo‟s argument premised on the unenforceable nature

15

of gratuitous oral promises fails for the same reasons as set forth addressing the Rosenthal Act claim.

16

Opposition to Wells Fargo, 7-8. Sixth, Plaintiffs contend that whether the August 10, 2010 letter to

17

Mrs. Perez constituted an attempt to grant her request for a loan modification is a question of fact that

18

cannot be resolved on a motion to dismiss. Id. at 8.

19

(3)

Wrongful Foreclosure: Plaintiffs assert that the tender rule is inapplicable here for two

20

reasons. First, Plaintiffs argue that the tender rule does not apply where, as here, they are suing for

21

damages as opposed to equitable relief. Opposition to Loanstar, 1-4 (citing Arnolds Mgmt. Corp. v.

22

Eischen, 158 Cal.App.3d 575, 578-579, 205 Cal.Rptr. 15 (1984) (a cause of action to set aside a

23

trustee sale should be accompanied by an offer to pay the full amount of the debt because equity will

24

not order that a useless act be performed); Karlsen v. American Sav. & Loan Ass’n, 15 Cal.App.3d

25

112, 117, 92 Cal.Rptr. 851 (1971)); Opposition to Wells Fargo, 2. Plaintiffs elaborate that they are

26

not seeking to set aside the foreclosure. Opposition to Loanstar, 4. Rather, they are seeking money

27

damages. Id. Second, Plaintiffs contend that the tender rule does not apply where, as here, it would

28

be inequitable to require the plaintiff to tender the amount due on the loan to the foreclosing

12

1

beneficiary. Opposition to Wells Fargo, 2 (citing Pantoja v. Countrywide Home Loans, 640

2

F.Supp.2d 1177, 1184 (N.D. Cal. 2009)). Plaintiffs explain that it would be inequitable to require

3

them to tender the full amount of the loan to Wells Fargo after the property has been sold to a third

4

party. Id. Thus, Plaintiffs argue that they have a viable wrongful foreclosure cause of action.

5

(4)

Negligence: Plaintiffs contend that they have pled a cause of action for negligence

6

because they alleged that Wells Fargo failed to exercise reasonable care in processing Mrs. Perez‟s

7

application for a loan modification. Id. at 9 (citing Garcia v. Ocwen Loan Servicing, 2010 WL

8

1881098 (N.D. Cal. May 10, 2010)). Plaintiffs state that this activity is outside of Wells Fargo‟s

9

conventional role as a mere lender of money. Id.

10

Northern District of California

United States District Court

11

4.
(1)

Wells Fargo Reply

Rosenthal Act: Wells Fargo argues that it did not violate the Rosenthal Act by

12

reviewing Mrs. Perez for a loan modification and postponing the foreclosure sale because it was under

13

no obligation to take these actions, which were favorable to Plaintiffs. Wells Fargo‟s Reply in

14

Support of Motion to Dismiss (“Wells Fargo Reply”), 2-3. In addition, Wells Fargo contends that

15

these actions are governed by nonjudicial foreclosure statutes and are within the scope of its debt

16

collection efforts. Id. at 3-4 (citing Cal. Civ. Code §§ 2923.5, 2923.6, 2924, 2924.3, 2924.8, 2924b,

17

2924f, 2924g, 2924h; Gomes v. Countrywide Home Loans, Inc., 192 Cal.App.4th 1149, 1154, 121

18

Cal.Rptr.3d 819 (2011); Gardner v. Am. Home Mortgage Serv’g, Inc., 691 F.Supp.2d 1192, 1199

19

(E.D. Cal. 2010)). Finally, Wells Fargo asserts that its alleged misrepresentations are not among the

20

enumerated misrepresentations made actionable by the Rosenthal Act. Id. at 4-5 (citing Cal. Civ.

21

Code § 1788.13(a)).

22

(2)

UCL: Wells Fargo argues that economic injury caused by the challenged business

23

practice is a requirement for standing under the UCL. Id. at 9 (citing Kwikset Corp. v. Superior

24

Court, 51 Cal.4th 310, 323, 120 Cal.Rptr.3d 741, 246 P.3d 877 (2011)). Wells Fargo contends that

25

the only alleged economic injury is the foreclosure sale caused by Plaintiffs‟ default, not its business

26

practices. Id. For that reason, Wells Fargo asserts that Plaintiffs‟ UCL claim fails.

27
28

(3)

Wrongful Foreclosure: Wells Fargo states that the three elements of a wrongful

foreclosure cause of action are “(1) the trustee or mortgagee caused an illegal, fraudulent, or willfully

13

party attacking the sale … was prejudiced or harmed; and (3) in cases where the trustor or mortgagor

3

challenges the sale, the trustor or mortgagor tendered the amount of the secured indebtedness or was

4

excused from tendering.” Id. at 6-7 (quoting Ogilvie v. Select Portfolio Serv’g, 2012 WL 4891583, at

5

*6 (N.D. Cal. Oct. 12, 2012) (quoting Lona v. Citibank, N.A., 202 Cal.App.4th 89, 104, 134

6

Cal.Rptr.3d 622 (2011)). Wells Fargo asserts that Plaintiffs have failed to allege how they were

7

prejudiced by the alleged lack of notice for the foreclosure sale, as they have not alleged any actions

8

they would have taken with proper notice. Id. at 7. In addition, Wells Fargo contends that the tender

9

rule applies “as a precondition to challenging a foreclosure sale, or any cause of action implicitly

10

integrated to the sale, the borrower must make a valid and viable tender of payment to the secured

11
Northern District of California

oppressive sale of real property pursuant to a power of sale in a mortgage or deed of trust; (2) the

2

United States District Court

1

debt.” Id. at 6 (quoting Montoya v. Countrywide Bank, 2009 WL 1813973, at *11-*12 (N.D. Cal.

12

June 25, 2009)) (emphasis omitted).

13

(4)

Negligence: Wells Fargo notes that Garcia, cited by Plaintiffs, contains a six factor

14

test to determine whether a lender or servicer owes a borrower a duty of care: “[1] the extent to which

15

the transaction was intended to benefit the plaintiff, [2] the foreseeability of harm to him, [3] the

16

degree of certainty that the plaintiff suffered injury, [4] the closeness of connection between the

17

defendant‟s conduct and the injury suffered, [5] the moral blame attached to the defendant‟s conduct,

18

and [6] the policy of preventing future harm.” Id. at 7 (quoting Garcia, 2010 WL 1881098 at *3).

19

Wells Fargo argues that factors two through five are missing because Plaintiffs were not harmed by its

20

decision to simultaneously review Mrs. Perez for a loan modification, which it had no obligation to

21

do, while going forward with the foreclosure process. Id. at 8.

22

23

5.

Loanstar Reply

Loanstar asserts that the strict pleading requirements set forth in Federal Rule of Civil

24

Procedure 9(b) apply to Plaintiffs‟ claims against it because are grounded in alleged fraudulent

25

conduct. Loanstar‟s Reply in Support of Motion to Dismiss (“Loanstar Reply”), 3-5. Loanstar

26

contends that Plaintiffs have not satisfied those requirements with respect to its recorded message. Id.

27

at 5. In addition, Loanstar argues the Plaintiffs have failed to allege damage or prejudice resulting

28

14

1

directly from the erroneous message and thus cannot make out a cause of action to set aside a trustee

2

sale. Id. at 5-7 (citing Angell v. Superior Court, 73 Cal.App.4th 691, 700, 86 Cal.Rptr.2d 657 (1999)).

3

IV.

4
5
6
7

ANALYSIS
A.

Motion to Remand
1.

Legal Background
a.

Motion to Remand and Supplemental Jurisdiction

“Except as otherwise expressly provided by Act of Congress, any civil action brought in a

by the defendant or the defendants, to the district court of the United States for the district and

10

division embracing the place where such an action is pending.” 28 U.S.C. § 1441(a). Original

11
Northern District of California

State court of which the district courts of the United States have original jurisdiction, may be removed

9

United States District Court

8

jurisdiction may be based on diversity or the existence of a federal question, as set forth in 28 U.S.C.

12

sections 1331 and 1332. “A motion to remand a case on the basis of any defect other than lack of

13

subject matter jurisdiction must be made within 30 days of the filing of the notice of removal under

14

section 1446(a). If at any time before final judgment it appears that the district court lacks subject

15

matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c).

16

“If a case is improperly removed, the federal court must remand the action because it has no

17

subject-matter jurisdiction to decide the case.” ARCO Envtl. Remediation v. Dep’t of Health &

18

Quality, 213 F.3d 1108, 1113 (9th Cir. 2000). If the case was properly removed on the basis of

19

federal question jurisdiction the state law claims arising out of a “common nucleus of operative fact”

20

fall within the federal court‟s supplemental jurisdiction. See 28 U.S.C. § 1367(a); United Mine

21

Workers of America v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). If the federal

22

claims that served as the basis for removal are eliminated, the district court has discretion to decline to

23

exercise its supplemental jurisdiction and to remand the remaining state law claims to state court. 28

24

U.S.C. § 1367(a); Harrell v. 20th Century Ins. Co., 934 F.2d 203, 205 (9th Cir. 1991); Albingia

25

Verischerungs A.G. v. Schenker Intern. Inc., 244 F.3d 931, 938 (9th Cir. 2003), amended on other

26

grounds, 350 F.3d 916 (9th Cir. 2003), cert denied, 541 U.S. 1041, 124 S.Ct. 2162, 158 L.Ed.2d 730

27

(2004) (“section 1447(c) does not mean that if the federal claim drops out, the district court must

28

remand … section 1447(c) means that if it is discovered at any time in the litigation that there is no

15

1

federal jurisdiction, a removed case must be remanded … rather than dismissed[;] … [o]nce

2

supplemental jurisdiction exists, it remains, subject to the discretionary provision for remand”);

3

Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639, 129 S.Ct. 1862, 173 L.Ed.2d 843 (2009)

4

(where a district court dismisses every claim over which it had original jurisdiction, it retains pure

5

discretion in deciding whether to exercise supplemental jurisdiction over the remaining claims).

6

“[T]here is a distinction between the power to hear state law claims and the discretionary

7

exercise of that power.” Nishimoto v. Federman-Bachrach & Assocs., 903 F.2d 709, 715 (9th Cir.

8

1990) (citing Carnegie-Mellon University v. Cohill, 484 U.S. 343, 349-350, 108 S.Ct. 614, 98 L.Ed.2d

9

720 (1988)). To decide whether to exercise jurisdiction over pendent state law claims, a district court

Northern District of California

should “consider and weigh in each case, and at every stage of litigation, the values of judicial

11
United States District Court

10

economy, convenience, fairness, and comity…” Cohill, 484 U.S. at 349-350, 108 S.Ct. 614, 98

12

L.Ed.2d 720); City of Chicago v. Int’l College of Surgeons, 522 U.S. 156, 172-173, 118 S.Ct. 523,

13

139 L.Ed.2d 525 (1997). “[I]n the usual case in which all federal law claims are eliminated before

14

trial, the balance of the factors to be considered … will point toward declining to exercise jurisdiction

15

over the remaining state-law claims.” Satey v. JPMorgan Chase & Co., 521 F.3d 1087, 1091 (9th Cir.

16

2008) (quoting Cohill, 484 U.S. at 351, 108 S.Ct. 614, 98 L.Ed.2d 720).

17

b.

Federal Question Jurisdiction

18

“The district courts shall have original jurisdiction of all civil actions arising under the

19

Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Federal question jurisdiction

20

is found only where a federal question appears on the face of a properly pleaded complaint.

21

Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987).

22

23

c.

Diversity Jurisdiction

Federal subject matter jurisdiction based on diversity requires complete diversity of citizenship

24

and an amount in controversy in excess of $75,000. 28 U.S.C. § 1332(a). “[O]ne exception to the

25

requirement of complete diversity is where a non-diverse defendant has been „fraudulently joined.‟”

26

Hunter v. Philip Morris USA, 582 F.3d 1039, 1043 (9th Cir. 2009) (quoting Morris v. Princess

27

Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001)). Fraudulent joinder is a term of art. Morris, 236

28

F.3d at 1067 (citing McCabe v. General Foods Corp., 811 F.2d 1336, 1339 (9th Cir. 1987)). “Joinder

16

1

of a non-diverse defendant is deemed fraudulent, and the defendant‟s presence in the lawsuit is

2

ignored for the purposes of determining diversity, „[i]f the plaintiff fails to state a cause of action

3

against a resident defendant, and the failure is obvious according to the settled rules of the state.‟” Id.

4

(quoting McCabe, 811 F.2d at 1339); Hunter, 582 F.3d at 1043. In construing this standard, district

5

courts have held that remand is improper where a complaint can be amended to state a cause of action

6

against the purportedly fraudulently joined defendant. Padilla v. AT & T Corp., 697 F.Supp.2d 1156,

7

1159 (C.D. Cal. 2009); Morrow v. Wells Fargo Bank, 2012 WL 5471133, at *6 (N.D. Cal. Nov. 9,

8

2012). “The defendant „is entitled to present facts showing the joinder is fraudulent.‟” Morris, 236

9

F.3d at 1067 (quoting McCabe, 811 F.2d at 1339).
In assessing diversity, “[a] federal court must disregard nominal or formal parties and rest

10

Northern District of California

United States District Court

11

jurisdiction only upon the citizenship of real parties to the controversy.” Kuntz v. Lamar Corp., 385

12

F.3d 1177, 1183 (9th Cir. 2004). A nominal party is one “who has no interest in the action” and is

13

merely joined to “perform a ministerial act.” Prudential Real Estate Affiliates, Inc. v. PPR Realty,

14

Inc., 204 F.3d 867, 873 (9th Cir. 2000). “The paradigmatic nominal defendant is a trustee, agent, or

15

depository who is joined merely as a means of facilitating collection.” Colello, 139 F.3d at 676

16

(internal quotations omitted); see also Hafiz v. Greenpoint Mortg. Funding, Inc., 652 F.Supp.2d.

17

1050, 1052 (N.D. Cal. 2009) (trustee defendant named in the complaint solely in its capacity as a

18

trustee and not because of any wrongdoing was a nominal defendant, where trustee filed declaration

19

of nonmonetary status pursuant to California Civil Code section 2924l). However, courts have found

20

that trustees are more than nominal defendants where the complaint includes substantive allegations

21

and asserts claims for money damages against the trustee. See Silva v. Wells Fargo Bank NA, 2011

22

WL 2437514, at *5 (C.D. Cal. June 6, 2011) (trustee defendant not a nominal defendant where the

23

plaintiffs assert in their complaint claims against all defendants for money damages, including

24

damages to their credit rating and home value, and emotional and physical distress); Couture v. Wells

25

Fargo Bank, N.A., 2011 WL 3489955, at *3 (S.D. Cal. Aug 9, 2011) (trustee defendant not a nominal

26

defendant where the plaintiff‟s complaint contains substantive allegations and claims for money

27

damages against trustee defendant).

28

//

17

1

d.

2

Relevant Substantive Law
i.

Trustee Liability

3

The court in Kachlon v. Markowitz explained that California Civil Code section 2924(d)

4

makes the trustee‟s fulfillment of its statutory duties privileged communications, subject to a qualified

5

common interest privilege, under section 47. 168 Cal.App.4th at 339-340, 85 Cal.Rptr.3d 532.

6

Section 47, in turn, creates a privilege for “a communication, without malice, to a person interested

7

therein.” Cal. Civ. Code § 47(c)(1). For this purpose, malice is defined as actual malice, meaning

8

“that the publication was motivated by hatred or ill will towards the plaintiff or by a showing that the

9

defendant lacked reasonable grounds for belief in the truth of the publication and therefore acted in

10

reckless disregard of the plaintiff‟s rights.” Kachlon, 168 Cal.App.4th at 336, 85 Cal.Rptr.3d 532.

Northern District of California

United States District Court

11
12
13
14

Section 2924(b) also creates the following privilege for trustees:
In performing acts required by this article, the trustee shall incur no liability for any good
faith error resulting from reliance on information provided in good faith by the
beneficiary regarding the nature and the amount of the default under the secured
obligation, deed of trust, or mortgage.

15

Cal. Civ. Code Section 2924(b).

16

ii.

UCL

17

The UCL prohibits “unfair competition,” which is defined as any “unlawful, unfair or

18

fraudulent business act or practice.” Cal. Bus. & Prof. Code § 17200. A claim may be brought under

19

the UCL “by a person who has suffered injury in fact and has lost money or property as a result of

20

unfair competition.” Cal. Bus. & Prof. Code § 17204. Therefore, to establish standing under the UCL

21

a plaintiff must “(1) establish a loss or deprivation of money sufficient to qualify as injury in fact, i.e.,

22

economic injury, and (2) show that the economic injury was the result of, i.e., caused by, the unfair

23

business practice … that is the gravamen of the claim.” Lawther v. OneWest Bank, FSB, 2012 WL

24

298110, at *23 (N.D. Cal. Feb. 1, 2012) (quoting Kwikset Corp., 51 Cal.4th 310, 337, 120

25

Cal.Rptr.741, 246 P.3d 877).

26

To establish a violation of Section 17200, a plaintiff may establish a violation under any one

27

of three prongs. To state a cause of action based on an “unlawful” business act or practice under the

28

UCL, a plaintiff must allege facts sufficient to show a violation of some underlying law. People v.

18

1

McKale, 25 Cal.3d 626, 635, 159 Cal.Rptr. 811, 602 P.2d 731 (1979). A “fraudulent” business act or

2

practice is one in which members of the public are likely to be deceived. Weinstat v. Dentsply Intern.,

3

Inc., 180 Cal.App. 4th 1213, 1223 n.8, 103 Cal.Rptr.3d 614 (2010)(citations omitted). “„Fraudulent,‟

4

as used in the statute, does not refer to the common law tort of fraud but only requires a showing that

5

members of the public „are likely to be deceived.‟” Olsen v. Breeze, 48 Cal.App.4th 608, 618, 55

6

Cal.Rptr.2d 818 (1996). UCL claims premised on fraudulent conduct trigger the heightened pleading

7

standard of Rule 9(b) of the Federal Rules of Civil Procedure. Kearns v. Ford Motor Co., 567 F.3d

8

1120, 1125 (9th Cir.2009).

“unfair” business practices, three tests have been applied, as the court in Phipps v. Wells Fargo

11
Northern District of California

Finally, while there is disagreement among California courts regarding the definition of

10

United States District Court

9

explains:

12
13
14
15
16
17
18
19
20

In consumer cases, such as this, the California Supreme Court has not established a
definitive test to determine whether a business practice is unfair. Drum v. San Fernando
Valley Bar Ass’n, 182 Cal.App.4th 247, 256, 106 Cal.Rptr.3d 46 (2010). A split of
authority has developed among the California Courts of Appeal, which have applied three
tests for unfairness in consumer cases. Drum, 182 Cal.App.4th at 256, 106 Cal.Rptr.3d
46.
The test applied in one line of cases requires “that the public policy which is a predicate
to a consumer unfair competition action under the „unfair‟ prong of the UCL must be
tethered to specific constitutional, statutory, or regulatory provisions.” Drum, 182
Cal.App.4th at 256, 106 Cal.Rptr.3d 46 (citing Bardin v. Daimlerchrysler Corp., 136
Cal.App.4th 1255, 1260–1261, 39 Cal.Rptr.3d 634 (2006); Davis v. Ford Motor Credit
Co., 179 Cal.App.4th at 581, 595–596, 101 Cal.Rptr.3d 697 (2009); Gregory v.
Albertson's Inc., 104 Cal.App.4th 845, 854, 128 Cal.Rptr.2d 389 (2002).

21

...

22

25

A second line of cases applies a test to determine whether the alleged business practice “is
immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers and
requires the court to weigh the utility of the defendant's conduct against the gravity of the
harm to the alleged victim.” Drum, 182 Cal.App.4th at 257, 106 Cal.Rptr.3d 46 (citing
Bardin, 136 Cal.App.4th at 1260, 39 Cal.Rptr.3d 634; Davis, 179 Cal.App.4th at 594–
595, 101 Cal.Rptr.3d 697)).

26

...

23
24

27
28

The test applied in a third line of cases draws on the definition of “unfair” in section 5 of
the Federal Trade Commission Act (15 U.S.C. § 45, subd. (n)), and requires that “(1) the

19

consumer injury must be substantial; (2) the injury must not be outweighed by any
countervailing benefits to consumers or competition; and (3) it must be an injury that
consumers themselves could not reasonably have avoided.” Drum, 182 Cal.App.4th at
257, 106 Cal.Rptr.3d 46 (citing Davis, 179 Cal.App.4th 597–598, 101 Cal.Rptr.3d 697;
Camacho v. Automobile Club of Southern California, 142 Cal.App.4th 1394, 1403, 48
Cal.Rptr.3d 770 (2006)).

1
2
3
4
5

2011 WL 302803, at *16 (E.D.Cal., Jan. 27, 2011).

6

The relief provided under the UCL is equitable in nature. Aryeh v. Canon Business Solutions,

7

Inc., __ Cal.4th __, 2013 WL 263509, at *6 n.5 (2013). Damages cannot be recovered. Korea Supply

8

Co. v. Lockheed Martin Corp., 29 Cal.4th 1134, 1144, 131 Cal.Rptr.2d 29, 63 P.3d 937 (2003).
2.

9

Application of Law to Facts

This Court had subject matter jurisdiction over the case at the time of removal because

10

Northern District of California

United States District Court

11

Plaintiffs‟ initial complaint asserted a cause of action under the TILA. See 15 U.S.C. § 1601. The

12

remaining state law claims fell within this Court‟s supplemental jurisdiction because each claim arose

13

out of the facts surrounding the inception of Plaintiffs‟ mortgage loan and their subsequent default.

14

This Court dismissed Plaintiffs‟ TILA claim, along with all of Plaintiffs‟ other claims, with leave to

15

amend. Plaintiffs did not raise the TILA claim, or any other federal claim, in either of their two

16

amended complaints. Therefore, this action no longer falls within the Court‟s federal question

17

jurisdiction. The parties dispute whether supplemental jurisdiction is the only remaining basis for

18

jurisdiction and, if it is, whether the Court should decline to exercise its supplemental jurisdiction. As

19

explained below, complete diversity is lacking. Thus, supplemental jurisdiction is the only remaining

20

basis for jurisdiction. The Court declines to exercise its supplemental jurisdiction over Plaintiffs‟

21

remaining state law claims. Plaintiffs‟ Motion for Remand is granted.
a.

22

Lack of Diversity Jurisdiction

23

Complete diversity of the parties is lacking. Plaintiffs are citizens of California. SAC, ¶ 1.

24

Loanstar is a citizen of California. See Supplemental Declaration of Glenn H. Wechsler, ¶ 4.5 The

25

Court must consider Loanstar‟s citizenship because Loanstar is not a nominal party and Loanstar was

26

not fraudulently joined.

27
5

28

LLC‟s are “citizen[s] of every state in which [their] owners/members are citizens.” Johnson v. Columbia Props.
Anchorage, LP, 437 F.3d 894, 899 (9th Cir. 2006). Loanstar‟s sole member is First American Title Company, a California
corporation.

20

1

Loanstar is not a nominal party in this action. In their SAC, Plaintiffs make two substantive

2

claims – violation of the UCL and wrongful foreclosure – against Loanstar. SAC, ¶¶ 33-44. Plaintiffs

3

seek money damages for lost equity in their property, lost personal property, and severe emotional

4

distress. Id. Both claims are premised on Plaintiffs‟ allegation that, on June 26, 2010, Loanstar‟s

5

status line contained a recorded message stating that the June 28, 2010 sale had been canceled but the

6

sale went forward. Id. at ¶¶ 20-21, 37, 43. It is clear that Loanstar was not joined purely to perform a

7

ministerial act. Rather, Plaintiffs seek damages from Loanstar based on its conduct, which they allege

8

has caused them to lose equity in their home, suffer emotional distress, and lose personal property.

9

Loanstar was not fraudulently joined. Plaintiffs did not “obvious[ly]” fail to state a claim

Northern District of California

against Loanstar. First, Loanstar is not obviously shielded from liability by the privileges set forth in

11
United States District Court

10

California Civil Code sections 2924(b) and 2924(d). Assuming the common interest privilege

12

incorporated by section 2924(d) applies, Plaintiffs have pleaded facts – that on June 26, 2010

13

Loanstar‟s automated message “falsely” reported that the June 28, 2010 sale had been canceled – that

14

may demonstrate malice. That is, these facts tend to show that Loanstar lacked reasonable grounds to

15

believe that the sale had been canceled. To the extent that the SAC arguably would be subject to

16

dismissal on the basis of these privileges, Wells Fargo has not shown that Plaintiffs would be unable

17

to re-allege their allegations to survive dismissal. See Morrow, 2012 WL at 5471133 *6. Moreover,

18

to the extent the claims in the SAC arguably sound in fraud and fail to meet the heightened pleading

19

standard in Rule 9(b), Wells Fargo has not shown Plaintiffs would be unable to file an amended

20

pleading to do so. See id.

21

Second, Plaintiffs‟ cause of action against Loanstar for violation of the UCL is not obviously

22

deficient. Plaintiffs alleged that Loanstar had an outgoing recorded message on its status line that

23

notified Plaintiffs, on June 26, 2010, that the June 28, 2010 sale of the Property had been canceled.

24

Plaintiffs also alleged that Wells Fargo acquired the property for far less than its market value. Wells

25

Fargo paid $617,053.01 to obtain the property at the sale. At that time, Wells Fargo claimed that

26

Plaintiffs owed $618,243.01 on the mortgage loan. Plaintiffs allege that the fair market value of their

27

home at that time was $740,000.

28

21

1

There is no obvious lack of standing. It is plausible that Loanstar, by maintaining a status line

2

with an outgoing message stating that the pending sale had been canceled, dissuaded interested buyers

3

from attending the June 28, 2010 foreclosure sale. It is possible that this would have depressed the

4

sale price of the home causing Plaintiffs to lose a quantifiable amount of equity in their home upon

5

sale, one item of damages Plaintiffs alleged. Thus, there is no obvious absence of an economic injury.

6

In addition, Loanstar‟s actions do not obviously fail to meet, at least, the second test for

7

unfairness. Placing an outgoing message on the foreclosure status line that inaccurately states that a

8

pending sale has been canceled is, at a minimum, arguably unfair and substantially injurious to

9

consumers. Moreover, there is no utility to such conduct as it serves only to allow the foreclosing

Northern District of California

parties to obtain foreclosed properties at a lesser price. Indeed, the conduct appears to undermine the

11
United States District Court

10

notice requirement set forth in California Civil Code section 2924f because it prevents the public from

12

being notified of the pending foreclosure sale. See Cal. Civ. Code § 2924f (2010). Finally, Plaintiffs

13

seek injunctive relief against Loanstar, which is available to remedy a violation of the UCL.
Wells Fargo has not met the high standard of demonstrating Plaintiffs‟ obvious failure to state

14
15

a claim against Loanstar.6 Moreover, Wells Fargo has not demonstrated Loanstar is a nominal

16

defendant. Loanstar and Plaintiffs are both California citizens for the purposes of diversity. There is

17

no complete diversity in this case.

18

b.

19
20

Supplemental Jurisdiction

The Court finds that the factors of judicial economy, convenience, fairness, and comity, taken
together, weigh in favor of remand.

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The case has been before this Court for over one and one half years. During that time period,

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the Court dismissed Plaintiffs‟ initial complaint. Plaintiffs thereafter amended their complaint, and

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the parties conducted some discovery. During discovery, Plaintiffs moved to amend their complaint

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once more. This Court granted the motion, and Plaintiffs filed their SAC on October 26, 2012. The

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SAC contains factual allegations that are substantially different from those raised in either of

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Plaintiffs‟ previous complaints. In addition, the SAC alleges different causes of action, or causes of

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6

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Wells Fargo draws attention to the short time period between the filing of the SAC and the pending Motion to Remand.
Supplemental Declaration of Thomas N. Abbott, ¶ 7. Wells Fargo also points out that Loanstar was not named as a
defendant in the first amended complaint. Id. at ¶ 6. This inquiry is beside the point. In any event, the SAC was filed by
different counsel and alleges new facts as to Loanstar‟s culpability.

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1

action based on different theories than those raised in the previous complaints. Defendants have each

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filed motions to dismiss the SAC, but the Court has not yet ruled on either motion. The trial date is

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not imminent and, given the novelty of the SAC, this Court has not performed a substantial amount of

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legal analysis that would need to be repeated by the state court. There would be no significant loss of

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judicial economy if this action were remanded. In addition, the SAC relies entirely on California law,

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so considerations of comity weigh in favor of granting remand. Moreover, Wells Fargo has not

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argued that the shifting the forum to San Mateo County Superior Court, located 26.5 miles from this

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courthouse, would cause them any inconvenience.

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Wells Fargo argues that allowing remand, as opposed to deciding the motions to dismiss, will

Northern District of California

prolong the life of the case because they will be forced to demur in state court. However, this

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United States District Court

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straightforward calculation seems to assume that the motions will be granted. Moreover, the state

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forum will provide just as fair a proceeding as the federal one. Thus, the fairness factor does not

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weigh strongly against remand.

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Balancing the factors, the Court concludes that the interests of judicial economy, comity,

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fairness, and convenience will be best served by remanding this case to state court. Plaintiffs Motion

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to Remand is granted.

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B.

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Because the Motion to Remand is granted, the Court does not reach the Motions to Dismiss.

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V.

Motions to Dismiss

CONCLUSION
For the foregoing reasons, Plaintiffs‟ Motion to Remand is granted and Defendants‟ Motions

to Dismiss are denied without prejudice.
IT IS SO ORDERED.
Dated: March 8, 2013

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_________________________________
JOSEPH C. SPERO
United States Magistrate Judge

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