Sowinski v. Wells Fargo Bank, N.A.

Filing 49

ORDER by Judge Samuel Conti granting in part and denying in part 39 Motion to Dismiss; granting 41 Motion to Expunge Lis Pendens. (sclc1, COURT STAFF) (Filed on 2/26/2013)

Download PDF
1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 RICHARD SOWINSKI, Plaintiff, 10 For the Northern District of California United States District Court 9 v. 11 12 WELLS FARGO BANK, N.A., and DOES 1-10, 13 Defendants. 14 15 I. 16 ) ) ) ) ) ) ) ) ) ) ) Case No. 11-6431-SC ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS SECOND AMENDED COMPLAINT AND GRANTING MOTION TO EXPUNGE LIS PENDENS INTRODUCTION Plaintiff Richard Sowinski ("Plaintiff") challenges Defendant 17 Wells Fargo Bank, N.A.'s ("Wells Fargo") foreclosure of his 18 residential mortgage and the subsequent trustee sale of his 19 residence. 20 lis pendens against the subject property.1 21 Wells Fargo's motion to dismiss Plaintiff's Second Amended 22 Complaint ("SAC") and motion to expunge the lis pendens. In connection with this action, Plaintiff recorded a Now before the Court is ECF Nos. 23 24 25 26 27 28 1 "A lis pendens is recorded by someone asserting a real property claim, to give notice that a lawsuit has been filed which may, if that person prevails, affect title to or possession of the real property described in the notice." Fed. Deposit Ins. Corp. v. Charlton, 17 Cal. App. 4th 1066, 1069 (Cal. Ct. App. 1993). "Once a lis pendens is filed, it clouds the title and effectively prevents the property's transfer until the litigation is resolved or the lis pendens is expunged." BGJ Associates, LLC v. Superior Court, 75 Cal. App. 4th 952, 966 (Cal. Ct. App. 1999). 1 39 (Motion to Dismiss ("MTD")), 41 (Motion to Expunge ("MTE")). 2 The motions are fully briefed. 3 ISO MTD"); 47 ("Reply ISO MTE"). 4 1(b), the Court finds this matter appropriate for resolution 5 without oral argument. 6 Fargo's motion to dismiss is GRANTED in part and DENIED in part, 7 and its motion to expunge is GRANTED. ECF Nos. 45 ("Opp'n"), 46 ("Reply Pursuant to Civil Local Rule 7- For the reasons set forth below, Wells 8 9 United States District Court For the Northern District of California 10 II. BACKGROUND On February 3, 2006 Plaintiff and his wife, Mary B. Sowinski 11 borrowed $672,000 from World Savings Bank, FSB ("WSB"). 12 (Request for Judicial Notice ("RJN")) Ex. 1. 13 by a deed of trust recorded against Plaintiff's residence in Walnut 14 Creek, California. 15 noticeable correspondence from federal banking regulators, WSB 16 later changed its name to Wachovia Mortgage, FSB, which was 17 subsequently converted to Wells Fargo Bank Southwest, N.A., and 18 then merged into Wells Fargo. 19 RJN Ex. 2 ("DOT"). ECF No. 40 The loan was secured According to judicially RJN Exs. 3, 4. At the time of the loan transaction, Plaintiff was sixty-eight 20 years old and allegedly suffered from "pre-Alzheimers." ECF No. 38 21 ("SAC") ¶ 1. 22 to the terms of the loan transaction. 23 Plaintiff alleges that: (1) WSB falsely represented that the 24 interest rate on the loan was fixed rather than adjustable; (2) WSB 25 falsely stated Plaintiff's income and the value of the property on 26 the loan application; (3) Plaintiff was not permitted to read the 27 loan documents and, "because of his weakened mental state," he 28 could not have understood them if he had. Plaintiff alleges that he was intentionally misled as 2 Id. ¶ 9. Id. Specifically, As a result of 1 these alleged misrepresentations, Plaintiff took out a loan he 2 could not afford. 3 Id. ¶ 12. In January 2008, Plaintiff contacted Wells Fargo about 4 increases to his monthly loan payments. 5 Fargo's agents offered to assist Plaintiff with a loan 6 modification, and, for the next twenty-eight months, Plaintiff 7 submitted and re-submitted loan modification application materials. 8 Id. ¶¶ 25-26. 9 decision on his application. United States District Court For the Northern District of California 10 Id. ¶ 25. One of Wells Plaintiff alleges that Wells Fargo never reached a Id. ¶ 26. On August 18, 2011, a notice of default was recorded with the 11 Contra Costa County Recorder's Office, indicating that Plaintiff 12 was over $46,000 in arrears on his loan. 13 23, 2011, a substitution of trustee was recorded, substituting NDeX 14 West, LLC as the new trustee. 15 substitution was recorded by "WELLS FARGO BANK, NA SUCCESSOR BY 16 MERGER TO WELLS FARGO BANK SOUTHWEST, NA F/K/A WACHOVIA MORTGAGE." 17 RJN Ex. 6. 18 "so that it falsely appears as though there was no need for an 19 actual sale/transfer/assignment and that it is the same entity as 20 the originating bank proceeding with foreclosure under the law." 21 SAC ¶ 24. 22 RJN Ex. 5. SAC ¶ 18; RJN Ex. 6. On September The Plaintiff alleges that Defendants concocted this name On December 2, 2011, Plaintiff filed the instant action in 23 California Superior Court, and Wells Fargo timely removed to this 24 Court. 25 action was filed, a trustee's sale was conducted, through which 26 Wells Fargo allegedly sold the property to itself at a below-market 27 price. 28 total debt at the time of sale was $763,042.60. ECF No. 1 Ex A. SAC ¶ 28. On December 12, 2011, a few days after the According to the trustee's deed upon sale, the 3 RJN Ex. 8. 1 On or about December 13, 2011, an unidentified local agent of 2 Wells Fargo allegedly offered Plaintiff $10,000 if he and his wife 3 would vacate the property by January 2, 2012. 4 told the agent that he and his wife needed more time and the agent 5 allegedly agreed to give them until January 20, 2012. 6 Fargo initiated unlawful detainer proceedings on January 4, 2012. 7 RJN Ex. 9. 8 the unlawful detainer complaint. 9 vacated the property on January 15, 2012. SAC ¶ 29. Plaintiff Wells Id. There is no mention of the "cash for keys" agreement in See id. Plaintiff allegedly SAC ¶ 29. After United States District Court For the Northern District of California 10 Plaintiff surrendered his keys, the Wells Fargo agent allegedly 11 revoked the offer because of Plaintiff's pending lawsuit. 12 30. 13 Fargo would only pay the $10,000 if Plaintiff agreed to dismiss 14 this action with prejudice. 15 Id. 16 judgment against Plaintiff, RJN Ex. 11, allegedly destroying 17 Plaintiff's credit rating, SAC ¶ 31. 18 Id. ¶ Wells Fargo's counsel informed Plaintiff's counsel that Wells Id. Plaintiff refused this offer. On March 16, 2012, Wells Fargo obtained an unlawful detainer On February 13, 2012, Wells Fargo moved to dismiss the first 19 complaint. ECF No. 11. On February 27, 2012, the response 20 deadline, Plaintiff filed an amended complaint, asserting claims 21 for: (1) quiet title, (2) declaratory relief, (3) injunctive 22 relief, and (4) violation of the California Unfair Competition Law 23 ("UCL"), Cal. Bus. & Prof. Code § 17200 et seq. 24 Amended Complaint ("FAC")). 25 motion to dismiss the FAC, the Court dismissed Plaintiff's claims 26 for declaratory relief and injunctive relief with prejudice. ECF No. 14 (First After Wells Fargo filed an unopposed 27 28 4 ECF 1 No. 37 ("Nov. 26 Order").2 2 two claims with leave to amend. 3 Plaintiff's quiet title claim failed because Plaintiff had not 4 alleged a valid and viable offer of tender. 5 UCL claim was dismissed because it was supported by nothing more 6 than "legal conclusions and generalities." 7 filed an unopposed motion to expunge the lis pendens, which the 8 Court denied in order to "give Plaintiff one last chance to 9 establish the 'probable validity' of a claim concerning the real United States District Court For the Northern District of California 10 estate at issue." The Court dismissed Plaintiff's other Id. at 3. The Court found that Id. at 4. Id. Plaintiff's Wells Fargo also Id. at 6. Plaintiff subsequently amended his complaint a second time. 11 12 Like the FAC, the SAC asserts claims for quiet title and violation 13 of the UCL. 14 oral contract, rescission of written contract due to 15 unconscionability, and elder abuse.3 16 dismiss all five claims pursuant to Federal Rule of Civil Procedure 17 12(b)(6). The SAC also asserts three new claims for breach of Wells Fargo now moves to Wells Fargo also moves to expunge the lis pendens. 18 19 III. DISCUSSION 20 A. Motion Dismiss 21 A motion to dismiss under Federal Rule of Civil Procedure 22 12(b)(6) "tests the legal sufficiency of a claim." 23 Block, 250 F.3d 729, 732 (9th Cir. 2001). Navarro v. "Dismissal can be based 24 25 26 27 28 2 Sowinski v. Wells Fargo Bank, N.A., 2012 WL 5904711, 2012 U.S. Dist. LEXIS 168198 (N.D. Cal. Nov. 26, 2012). 3 In the SAC, Plaintiff numbers his causes of action as follows: (1) quiet title, (2) breach of oral contract, (3) rescission, (5) elder abuse, and (6) UCL. The Court assumes that the omission of claim four was merely a numbering error and refers to Plaintiff's claims for elder abuse and UCL as claims (4) and (5), respectively. 5 1 on the lack of a cognizable legal theory or the absence of 2 sufficient facts alleged under a cognizable legal theory." 3 Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 4 1988). 5 should assume their veracity and then determine whether they 6 plausibly give rise to an entitlement to relief." 7 Iqbal, 556 U.S. 662, 664 (2009). 8 must accept as true all of the allegations contained in a complaint 9 is inapplicable to legal conclusions. "When there are well-pleaded factual allegations, a court Ashcroft v. However, "the tenet that a court Threadbare recitals of the United States District Court For the Northern District of California 10 elements of a cause of action, supported by mere conclusory 11 statements, do not suffice." 12 Twombly, 550 U.S. 544, 555 (2007)). 13 complaint must be both "sufficiently detailed to give fair notice 14 to the opposing party of the nature of the claim so that the party 15 may effectively defend against it" and "sufficiently plausible" 16 such that "it is not unfair to require the opposing party to be 17 subjected to the expense of discovery." 18 1191, 1204 (9th Cir. 2011). 19 20 21 22 Id. at 663 (citing Bell Atl. Corp. v. The allegations made in a Starr v. Baca, 633 F.3d With these principles in mind, the Court turns to each of the claims challenged by Wells Fargo. 1. Quiet Title Defendants move to dismiss Plaintiff's first cause of action 23 for quiet title on the ground that Plaintiff has once again failed 24 to allege a valid and viable offer of tender. 25 responds that the tender requirement only applies in cases where a 26 plaintiff alleges defects in the foreclosure process and Plaintiff 27 has made no such allegation here. 28 authority to support this proposition, and the case law holds MTD at 4. Opp'n at 10. 6 Plaintiff Plaintiff cites no 1 otherwise. 2 2012 WL 4099568, at *3 (N.D. Cal. Sept. 17, 2012). 3 Plaintiff has in fact alleged deficiencies in the foreclosure 4 process. 5 to the property is based on a "fraudulent substitution of trustee." 6 FAC ¶ 34. 7 See Ananiev v. Aurora Loan Services, LLC, C 12-2275 SI, Further, Specifically, Plaintiff alleges that Wells Fargo's claim Plaintiff also argues that he need not tender because he has 8 alleged that the underlying loan transaction was unconscionable. 9 Opp'n at 11. This argument has merit. As the California Court of United States District Court For the Northern District of California 10 Appeal held in Lona v. Citibank, N.A., "if the borrower's action 11 attacks the validity of the underlying debt, a tender is not 12 required since it would constitute an affirmation of the debt." 13 202 Cal. App. 4th 89, 112 (Cal. Ct. App. 2011). 14 suggests that the Court's November 26 Order somehow precludes 15 Plaintiff from asserting an exception to the tender rule. 16 4; Reply at 1. 17 well-established California law. 18 Lona is inapposite because that case dealt with an equitable cause 19 of action to set aside a trustee's sale, while this case concerns a 20 claim for quiet title. 21 explain why that distinction is significant or why the Court could 22 not construe Plaintiff's claim as an equitable cause of action. 23 Wells Fargo also argues that Lona's discussion of the 24 unconscionability exception should be accorded limited weight since 25 the defendant in that case only lost on the issue because it failed 26 to brief it. 27 line of authority recognizing this particular exception to the 28 tender rule. Wells Fargo Mot. at But nothing in that Order was intended to set aside Id. at 3. Wells Fargo also asserts that Reply at 2. However, Wells Fargo does not But Wells Fargo fails to address the long See, e.g., Shuster v. BAC Home Loans Servicing, LP, 7 1 211 Cal. App. 4th 505, 512 (Cal. Ct. App. 2012); Onofrio v. Rice, 2 55 Cal. App. 4th 413, 424 (Cal. Ct. App. 1997); Stockton v. Newman, 3 148 Cal. App. 2d 558, 564 (Cal. Ct. App. 1957). 4 Wells Fargo also argues that Plaintiff's claims of 5 unconscionability are barred by the Home Owners Loan Act ("HOLA"), 6 12 U.S.C. 1461 et seq. 7 Office of Thrift Supervision ("OTS"), state laws are preempted 8 where they purport to impose requirements regarding "[t]he terms of 9 credit, including amortization of loans and the deferral and Pursuant to regulations promulgated by the United States District Court For the Northern District of California 10 capitalization of interest and adjustments to the interest rate, 11 balance, payments due, or term to maturity of the loan . . . ." 12 C.F.R. § 560.2(b)(4). 13 law," "real property law," and "tort law," among other things, "are 14 not preempted to the extent that they only incidentally affect 15 lending operations . . . or are otherwise consistent with the 16 purpose [of the regulation]." 17 the extent that [a] [p]laintiff's claims are premised on fraud or 18 promises made by [the lender], such claims are not necessarily 19 preempted, because the only 'requirement' they impose on federal 20 savings banks is that they be held responsible for the statements 21 they make to their borrowers." 22 No. 11-1998 SC, 2011 WL 3740828, at *7 (N.D. Cal. Aug. 25, 2011). 23 Such is the case here. 24 he could not afford because WSB -- Wells Fargo's predecessor-in- 25 interest -- misrepresented his income and the value of his property 26 on a loan application and because WSB lied about the terms of the 27 proposed loan. 28 Plaintiff's claim for quiet title does not impose additional 12 However, state "contract and commercial Id. § 560.2(c). Accordingly, "[t]o Rumbaua v. Wells Fargo Bank, N.A., Plaintiff alleges that he was given a loan SAC ¶ 35. Contrary to Wells Fargo's argument, 8 1 requirements on the terms of credit that are included in the the 2 loan agreement. 3 were the result of a series of misrepresentations. 4 not preempted by HOLA. 5 Rather, the claim asserts that the terms of credit Such a claim is Finally, Wells Fargo argues that, under principles of res 6 judicata, the unlawful detainer action precludes Plaintiff from 7 challenging the validity of the foreclosure sale. 8 "subsequent fraud or quiet title suits founded upon allegations of 9 irregularity in a trustee's sale are barred by [a] prior unlawful It is true that Malkoskie v. Option One Mortg. Corp., 188 Cal. United States District Court For the Northern District of California 10 detainer judgment." 11 App. 4th 968, 974 (Cal. Ct. App. 2010) (quoting Vella v. Hudgins, 12 20 Cal. 3d 251, 256 (Cal. 1977)). 13 is, in part, predicated on irregularities in the foreclosure sale. 14 See FAC ¶ 34. 15 allegations that Wells Fargo's predecessor-in-interest made a 16 number of misrepresentations during loan origination. 17 to the extent that Plaintiff's claim for quiet title is not 18 predicated on alleged deficiencies in the foreclosure process, it 19 is not precluded by the unlawful detainer judgment. 20 21 22 Plaintiff's quiet title claim However, as noted above, it is also based on Accordingly, For these reasons, Wells Fargo's Motion to Dismiss is DENIED as to Plaintiff's first claim for quiet title. 2. Breach of Oral Contract 23 Plaintiff's second cause of action for breach of oral 24 contract, along with his third and fourth causes of action, were 25 not raised in either of his two prior complaints. 26 neglected to respond to Wells Fargo's last motion to dismiss, the 27 Court dismissed Plaintiff's first amended complaint with leave to 28 amend so that Plaintiff could cure certain pleading deficiencies. 9 After Plaintiff 1 The Court did not grant Plaintiff leave to amend to plead three 2 additional causes of action, nor is there any indication that Wells 3 Fargo consented to these amendments. 4 are procedurally improper. 5 amend once as a matter of course and any other amendments require 6 opposing party's written consent or court's leave). 7 leave to amend should be freely given, id. 15(a)(1)(B)(3), the 8 Court declines to dismiss these new causes of action. 9 amendments which would add new causes of action should be made in United States District Court For the Northern District of California 10 Accordingly, the amendments See Fed. R. Civ. P. 15 (plaintiff may However, as Any future accordance with Rule 15. Plaintiff's second cause of action is predicated on 11 12 Defendants' alleged breach of an oral agreement to pay Plaintiff 13 $10,000 if he and his wife moved out of the subject property by a 14 certain date. 15 it argues that the claim is barred by the statute of frauds. 16 at 5. 17 clearly applies to agreements for the sale of real property and 18 agreements to pay an indebtedness secured by mortgage upon the 19 property purchased, Cal. Civ. Code § 1624(a)(3), (6), Wells Fargo 20 cites no authority suggesting that it also applies to the type of 21 cash-for-keys agreement at issue here. 22 Wells Fargo moves to dismiss on two grounds. This argument lacks merit. First, MTD While the statute of frauds Wells Fargo's second argument, that Plaintiff has failed to 23 plead the elements of an oral contract, MTD at 5-6, is more 24 persuasive. 25 Plaintiff $10,000 to move out of the property by January 2, 2012. 26 SAC ¶ 38. 27 allegedly agreed to a January 20, 2012 move-out date. 28 However, it is unclear from the SAC -- and Plaintiff's opposition According to the SAC, Wells Fargo's agent offered Plaintiff counter-offered, and Wells Fargo's agent 10 Id. i.e., whether the parties agreed that Plaintiff would be 3 compensated for moving out by January 20. 4 failed to plead whether the unidentified agent mentioned in the SAC 5 had the authority to make such a deal on behalf of Wells Fargo. 6 Plaintiff's opposition papers aver that Plaintiff confirmed the 7 agent's authority, but the Court cannot consider facts asserted in 8 the opposition without converting Wells Fargo's 12(b)(6) motion 9 into a motion for summary judgment. 10 United States District Court -- whether there was a meeting of the minds over the counter-offer, 2 For the Northern District of California 1 342 F.3d 903, 909 (9th Cir. 2003). 11 Plaintiff has also See United States v. Ritchie, Accordingly, the Court DISMISSES Plaintiff's claim for breach 12 of oral contract, but GRANTS Plaintiff leave to amend so as to 13 plead the exact terms of the oral contract and the purported 14 agent's authority to enter into the alleged contract. 3. 15 16 Rescission Wells Fargo argues that Plaintiff's third cause of action for 17 "rescission of written contract due to uncons[c]ionability pursuant 18 to [California] Civil Code § 1670.5" fails because 19 unconscionability is an affirmative defense, not a cause of action. 20 The Court agrees. 21 may refuse to enforce a contract if it finds "the contract or any 22 clause of the contract to have been unconscionable at the time it 23 was made." 24 provides for an independent cause of action. 25 is in accord. 26 (9th Cir. 2010). 27 for the contrary proposition, but nothing in that decision suggests 28 that a plaintiff can state an independent claim for Civil Code section 1670.5 provides that a court Cal. Civ. Code § 2670.5(a). Nothing in the statute Prevailing case law See Rubio v. Capital One Bank, 613 F.3d 1195, 1206 Plaintiff cites Lona, 202 Cal. App. 4th at 101, 11 1 unconscionability. 2 largely, if not entirely, duplicative of his first cause of action. 3 Compare FAC ¶¶ 45-47 with id. ¶ 35. 4 rescission claim is DISMISSED WITH PREJUDICE. 4. 5 In any event, Plaintiff's rescission claim is For these reasons, Plaintiff's Elder Abuse Wells Fargo argues that Plaintiff's fourth claim for elder 6 elder abuse is four years, Cal. Wel. & Inst. Code § 15657.7, and 9 Plaintiff alleges that he entered into the loan transaction in 10 United States District Court abuse is time barred. 8 For the Northern District of California 7 The statute of limitations for financial 2006, see SAC ¶ 10, over five years before he filed the instant 11 action. Plaintiff counters that the statute of limitations has not run 12 13 because his elder abuse claim relates to ongoing conduct over a 14 series of years, culminating in the breach of the cash-for-keys 15 agreement in January 2011. 16 yet to allege any actionable conduct beyond the misrepresentations 17 Defendants allegedly made in connection with the loan transaction. 18 Plaintiff's allegation that Wells Fargo's actions somehow violated 19 a February 2012 agreement with the Department of Justice is 20 implausible, as all of the events involved in this case pre-date 21 2012. 22 "h[eld] out the possibility of a loan modification and ke[pt] 23 Plaintiff in the process for over 28 months," Opp'n at 16, but 24 fails to explain how this conduct amounted to elder abuse. 25 extent that Plaintiff means to plead that Wells Fargo engaged in 26 double-tracking, i.e., purporting to review a loan modification 27 request while at the very same time foreclosing on the property, 28 his allegations amount to little more than legal conclusions. See SAC ¶ 53. Opp'n at 16. However, Plaintiff has Plaintiff also asserts that Wells Fargo 12 To the 1 Further, as noted in Section III.A.2 supra, Plaintiff's claim for 2 breach of an oral contract is implausible as pled. 3 4 Accordingly, Plaintiff's claim for elder abuse is DISMISSED with leave to amend. 5. 5 UCL 6 In its November 13 Order granting Wells Fargo's motion to 7 dismiss the first amended complaint, the Court identified a number 8 of defects in Plaintiff's UCL claim, including Plaintiff's failure 9 to (1) identify the prong on which his UCL claim rests, (2) plead United States District Court For the Northern District of California 10 fraud with specificity, and (3) specify how his allegations support 11 his UCL claim. 12 the third deficiency by copying and pasting allegations from other 13 parts of the SAC into the UCL section (rather than incorporating 14 the allegations by reference as he did last time), and largely 15 ignores the rest of the Court's guidance. 16 Plaintiff assures the Court that he is able to plead more facts. 17 Opp'n at 17. 18 amended complaints, three motions to dismiss, and one Court order 19 providing specific guidance on this very point. 20 failed to follow that guidance, the Court DISMISSES his UCL claim 21 WITH PREJUDICE. Nov. 13 Order at 4-5. Plaintiff attempts to cure In his opposition brief, But Plaintiff has already had the benefit of two As Plaintiff has 22 B. Motion to Expunge Lis Pendens 23 Plaintiff bears the burden of proving that the lis pendens 24 should not be expunged, notwithstanding Wells Fargo being the 25 moving party. 26 Registration Sys., Inc., No. C 09-01605 SBA, 2012 WL 2792437, at *1 27 (N.D. Cal. July 9, 2012). 28 court finds either that the pleading on which the notice is based Cal. Civ. Proc. Code § 405.30; Cua v. Mortgage Elec. "A lis pendens shall be expunged if the 13 1 does not contain a real property claim, or that the claimant failed 2 to establish by a preponderance of the evidence the probable 3 validity of the real property claim." Cua, 2012 WL 2792437, at *1. 4 Wells Fargo's current motion to expunge the lis pendens is 5 almost identical to its last motion to expunge the lis pendens. 6 Compare MTE with ECF No. 19. 7 (1) Plaintiff is incapable of bringing a claim that affects title 8 since he cannot tender his debt, and (2) the lis pendens is void 9 because it was not properly served and recorded. Once again, Wells Fargo argues that As Plaintiff's United States District Court For the Northern District of California 10 quiet title claim remains undisturbed, he is clearly capable of 11 bringing a claim that affects the title to the property. 12 Section III.A.1 supra. 13 Wells Fargo's argument concerning the service and recordation of 14 the lis pendens. 15 Fargo's motion to expunge altogether. 16 not reference the motion, other than in the caption. 17 Plaintiff bears the burden of proof in opposing the motion, his 18 failure to respond is fatal to his lis pendens. 19 was previously inclined to give Plaintiff another chance to 20 establish the "probable validity" of a claim concerning the real 21 estate at issue, Nov. 26 Order at 6, this is now the second time 22 Plaintiff has failed to respond to a motion to expunge. However, Plaintiff has failed to respond to In fact, Plaintiff appears to have ignored Wells His opposition brief does Since While the Court Accordingly, Wells Fargo's motion to expunge the lis pendens 23 24 See is GRANTED. 25 26 27 28 V. CONCLUSION For the reasons set forth above, Defendant Wells Fargo Bank, N.A.'s motion to dismiss Plaintiff Richard Sowinski's second 14 1 2 amended complaint is GRANTED in part and DENIED in part. • Plaintiff's first claim for quiet title remains undisturbed to 3 the extent it is not premised on deficiencies in the 4 foreclosure process. 5 • DISMISSED with leave to amend. 6 7 • • United States District Court For the Northern District of California 12 Plaintiff's fourth claim for elder abuse is DISMISSED with leave to amend. 10 11 Plaintiff's third claim for rescission is DISMISSED WITH PREJUDICE. 8 9 Plaintiff's second claim for breach of oral contract is • Plaintiff's fifth claim for violation of the UCL is DISMISSED WITH PREJUDICE. 13 The Court also GRANTS Defendants' motion to expunge the lis 14 pendens. 15 (30) days of the signature date of this Order. 16 may result in dismissal with prejudice of his causes of action for 17 breach of oral contract and elder abuse. 18 with Rule 15 prior to asserting any previously unpled causes of 19 action. Plaintiff shall file an amended complaint within thirty Failure to do so Plaintiff shall comply 20 21 IT IS SO ORDERED. 22 23 24 Dated: February 26, 2013 UNITED STATES DISTRICT JUDGE 25 26 27 28 15

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?