Tan et al v. Wells Fargo Bank NA et al

Filing 17

ORDER by Judge Edward M. Chen Granting 9 Defendants' Motion to Dismiss. (emcsec, COURT STAFF) (Filed on 8/4/2011)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 AMIE TAN, et al., 9 Plaintiffs, 10 v. 11 For the Northern District of California United States District Court No. C-11-2874 EMC WELLS FARGO BANK NA, et al., 12 ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS Defendants. ___________________________________/ (Docket No. 9) 13 14 15 Plaintiffs Amie and Allen Tan have filed suit against the following Defendants: Wells Fargo 16 Bank NA; Wells Fargo Bank, as Trustee for the Structured Asset Securities Corp. Mortgage Pass- 17 Through Certificates Series 2006-Opti; American Home Mortgage Servicing Inc. (“AHMSI”); AH 18 Mortgage Acquisition Co., Inc.; AHM SV Inc.; Power Default Services, Inc.; Option One Mortgage 19 Corp.; and Mortgage Electronic Registration Systems (“MERS”). The Tans initiated this suit in 20 state court but the case was subsequently removed to federal court by four of the defendants, i.e., 21 Wells Fargo Bank NA, Wells Fargo Bank as Trustee, AHMSI, and Power Default (collectively 22 “Removing Defendants”). (The other defendants still have yet to make an appearance in the case.) 23 Currently pending before the Court is the Removing Defendants’ motion to dismiss. For the reasons 24 discussed below, the Court hereby GRANTS the motion. 25 /// 26 /// 27 /// 28 /// 1 2 I. DISCUSSION As a preliminary matter, the Court notes that the Tans failed to file an opposition to the so proceeding, the Tans took on the risk that their case would be dismissed for failure to file an 5 opposition as required by the Civil Local Rules or for failure to prosecute under Federal Rule of 6 Civil Procedure 41(b). Notably, Judge Armstrong of this District dismissed a prior lawsuit brought 7 by the Tans – based on largely the same facts – for those very reasons. See Tan v. Wells Fargo 8 Bank, No. C-10-3773 SBA (Docket No. 14). The reasoning of Judge Armstrong is largely 9 applicable here. Moreover, the Court notes that, as a practical matter, a lesser sanction is not really 10 available in this case precisely because the Tans were already aware of the consequences of a failure 11 For the Northern District of California motion to dismiss. In addition, they failed to make an appearance at the hearing on the motion.1 In 4 United States District Court 3 to oppose a motion to dismiss. Cf. Carey v. King, 856 F.2d 1439, 1441 (9th Cir. 1988) (stating that 12 “[a]dditional prior notice of imminent dismissal would be a futile gesture, given that the district 13 court's prior mailing to Carey was returned as undeliverable”). Accordingly, the Court concludes 14 that dismissal of the claims asserted against the Removing Defendants is appropriate based on the 15 Tans’ failure to prosecute. 16 The Court further notes that, even if there were no failure to prosecute, the bulk of the Tans’ 17 claims would be barred by res judicata. See United States v. Liquidators of European Fed. Credit 18 Bank, 630 F.3d 1139, 1150 (9th Cir. 2011) (stating that “[r]es judicata is applicable whenever there 19 is (1) an identity of claims, (2) a final judgment on the merits, and (3) privity between parties”). As 20 indicated above, the Tans previously filed suit against largely the same defendants in a case over 21 which Judge Armstrong was the assigned judge. There is a substantial, indeed nearly complete, 22 overlap in operative facts between that prior lawsuit and the current one. Both cases relate to 23 foreclosure attempts with respect to the Tans’ home. In both complaints, the Tans claim that the 24 defendants cannot foreclose because there is a problem with the “chain of assignment.” In addition, 25 in both complaints, the Tans allege improprieties by the defendants related to their loan – e.g., 26 “adding exorbitant fees, [imposing] undisclosed and hidden charges, and misapplying [loan] 27 28 1 Counsel for the Removing Defendants also represented at the hearing that its attempts to contact the Tans have been unsuccessful. Either the Tans have not responded to messages left with them or the Tans have hung up on defense counsel once he or she identifies himself or herself. 2 1 payments.” Compl. ¶ 22; Tan v. Wells Fargo Bank, No. C-10-3773 SBA (Docket No. 1) (Compl. ¶ 2 25). 3 Finally, the Court notes that, res judicata aside, many of the causes of action pled by the Tans 4 do not state a claim for relief. See Fed. R. Civ. P. 12(b)(6) (providing that a claim may be dismissed 5 for failure to state a claim for relief). For example, the Tans maintain that, because of the 6 securitization process, only the individual investors may foreclose on their home, but courts have 7 typically rejected such arguments. See, e.g., Jones v. Countrywide Homeloan, No. CV F 11-0405 8 AWI JLT, 2011 U.S. Dist. LEXIS 64647, at *13-15 (E.D. Cal. June 17, 2011); Zivanic v. 9 Washington Mut. Bank, F.A., No. 10-737 SC, 2010 U.S. Dist. LEXIS 56846, at *18-19 (N.D. Cal. June 9, 2010). The Tans also argue that they are entitled to a loan modification pursuant to 11 For the Northern District of California United States District Court 10 California Civil Code § 2923.6, but courts have routinely rejected those contentions as well, either 12 holding that the statute does not give rise to a private right of action or that the statute does not 13 impose any duty on the lender. See, e.g., Alda v. Wells Fargo Bank, N.A., No. CIV S-11-925 MCE 14 DAD (TEMP) PS, 2011 U.S. Dist. LEXIS 72789, at *9-10 (E.D. Cal. July 7, 2011); Chourp v. 15 Ocwen Loan Serv’g, L.L.C., No. 11cv0159-IEG (JMA), 2011 U.S. Dist. LEXIS 44044, at *5 (S.D. 16 Cal. Apr. 22, 2011); Roberts v. JPMorgan Chase Bank, N.A., No.: 09-CV-01855-LHK, 2011 U.S. 17 Dist. LEXIS 24753, at *14-15 (N.D. Cal. Mar. 11, 2011); see also Mabry v. Superior Court, 185 18 Cal. App. 4th 208, 222 (2010) (noting that “section 2923.6 . . . does not operate substantively” and 19 “merely expresses the hope that lenders will offer loan modifications on certain terms”) (emphasis in 20 original). Finally, as another example, the Tans’ fraud claim is deficient as they have failed to plead 21 in a nonclusory way that they relied on the alleged misrepresentation by the defendants that they had 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 3 1 the authority to foreclose on the Tans’ home. See In re Estate of Young, 160 Cal. App. 4th 62, 79 2 (2008) (noting that one of the required elements for a claim of fraud is justifiable reliance). 3 4 5 6 II. CONCLUSION For the foregoing reasons, the Court hereby grants the Removing Defendants’ motion to dismiss. This order disposes of Docket No. 9. 7 8 IT IS SO ORDERED. 9 Dated: August 4, 2011 11 For the Northern District of California United States District Court 10 _________________________ EDWARD M. CHEN United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 AMIE TAN, et al., 9 Plaintiffs, v. CERTIFICATE OF SERVICE 11 For the Northern District of California United States District Court 10 No. C-11-2874 EMC WELLS FARGO BANK NA, et al., 12 Defendants. ___________________________________/ 13 14 15 I, the undersigned, hereby certify that I am an employee in the U.S. District Court, Northern 16 District of California. On the below date, I served a true and correct copy of the attached, by placing 17 said copy/copies in a postage-paid envelope addressed to the person(s) listed below, by depositing 18 said envelope in the U.S. Mail; or by placing said copy/copies into an inter-office delivery 19 receptacle located in the Office of the Clerk. 20 Amie Tan No 3. Dow Court Alameda, CA 94501 21 Allen Tan No. 3 Dow Court Alameda, CA 94501 22 23 Dated: August 4, 2011 RICHARD W. WIEKING, CLERK 24 25 26 27 28 By: /s/ Leni Doyle Leni Doyle Deputy Clerk

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