Perez v. Wachovia Mortgage

Filing 24

ORDER GRANTING MOTION TO DISMISS. Signed by Judge Richard Seeborg on 11/29/12. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 11/29/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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For the Northern District of California

United States District Court

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MARIA PEREZ,

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No. C 12-03407 RS

Plaintiff,
ORDER GRANTING MOTION TO
DISMISS

v.
WACHOVIA MORTGAGE, a division of
WELLS FARGO BANK, N.A., et al.,

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Defendants.
____________________________________/

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Maria Perez took out an adjustable rate “pick a payment” mortgage secured by her home

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from World Saving Bank, FSB, in March of 2005. World Savings Bank subsequently changed its

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name to Wachovia Mortgage, FSB. Thereafter, Wachovia Mortgage was merged into Wells Fargo

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Bank, N.A. Perez, representing herself, filed a complaint in June 2012, alleging that Wachovia

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violated the Truth in Lending Act (15 U.S.C. §1601, et seq.) and the California Unfair Competition

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Law (Cal. Bus. & Prof. Code § 17200, et seq.), as well as made fraudulent omissions, breached a

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contract, and breached the covenant of good faith and fair dealing, in giving her the mortgage.

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Defendant Wells Fargo has moved to dismiss Perez’s complaint.

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NO. C 12-03407 RS
ORDER

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It appears that Perez has abandoned this action. She did not file an opposition to the motion

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to dismiss, nor did she appear at the hearing on that motion. For this reason alone, defendant’s

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motion to dismiss may be granted. For the reasons discussed below, going to the merits of Perez’s

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claims, the motion to dismiss is granted with prejudice.
I.

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MOTION TO DISMISS

Amended Class Action Complaint in Mandrigues, et al. v. World Savings, Inc., et al., No. C-07-

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04497-JF (RS), a class action challenging World Savings Bank’s practices in connection with

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making adjustable rate “pick a payment” residential mortgages between August 1, 2003 and

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For the Northern District of California

Defendants note that Perez’s complaint is substantially identical to the Corrected Second

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United States District Court

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December 1, 2008. See infra II. The Mandrigues case led to In re Wachovia Corp. “Pick-A

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Payment” Mortgage Marketing and Sales Practice Litigation in which the court certified a class and

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approved a class action settlement. Plaintiff is included in the definition of the class that was

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certified in that case, as she concedes in her complaint by alleging that she opted out of the proposed

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class action settlement. Perez’s allegation that she opted out of the settlement is contradicted by the

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official court record in that case. Her name does not appear on the opt-out list. See infra II.

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Therefore, the class action settlement is res judicata to her present individual suit, which makes the

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same legal claims, arising out of the same factual circumstances, against the same parties, as the

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Mandrigues case. See Citizens for Open Access to Sand & Tide, Inc.v. Seadrift Ass’n, 60 Cal. App.

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4th 1053, 1065 (1998).

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Furthermore, even if Perez’s claims were not barred by the settlement in the prior litigation

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over Wachovia’s adjustable rate mortgage practices, she has waited too long to bring them. She

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took out her mortgage in 2005, but did not file her lawsuit until seven years later in June 2012. The

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applicable statutes of limitations for her claims have long passed. See Truth in Lending Act, 15

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U.S.C. § 1640(e) (one year statute of limitations for damages claims); Cal. Code of Civ. Proc. §

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338(a) (three year statute of limitations for fraudulent omissions); Unfair Competition Law, Cal.

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Bus. & Prof. Code §17208 (four year statute of limitations); Cal. Code of Civ. Proc. § 337 (four year

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statute of limitations running from February 15, 2008, when she made her last payment under the

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NO. C 12-03407 RS
ORDER

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contract). There is, therefore, no need to address the remaining arguments advanced by the

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defendants on the merits, including preemption and failure to state a claim.

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II.

REQUEST FOR JUDICIAL NOTICE

In connection with its motion to dismiss, defendant requests that the Court take judicial

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notice pursuant to Federal Rule of Evidence 201(b)(2) of certain documents: (1) an adjustable rate

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mortgage note signed and dated March 31, 2005 by plaintiff; (2) a deed of trust signed and dated

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March 31, 2005 by plaintiff and recorded in the records of the Contra Costa County Recorder’s

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Office on April 8, 2005, as DOC-5005-0121802-00, (3) a certificate of corporate existence dated

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April 21, 2006, from the Office of Thrift Supervision, Department of the Treasury, (4) a letter dated

For the Northern District of California

United States District Court

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November 19, 2007, from the Office of Thrift Supervision , Department of the Treasury, (5) the

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charter of Wachovia Mortgage, FSB, dated December 31, 2007, and signed by the Office of Thrift

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Supervision, (6) the official certification of the Comptroller of the Currency stating that effective

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November 1, 2009, Wachovia Mortgage, FSB converted to Wells Fargo Bank Southwest, N.A.,

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which then merged with and into Wells Fargo Bank, N.A., (7) a notice of default and election to sell

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under deed of trust dated June 24, 2008, and recorded in the official records of the Contra Costa

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County Recorder’s Office on June 27, 2008, as DOC-2008-0144977-00, (8) a notice of trustee’s sale

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dated April 6, 2010, and recorded in the official records of the Contra Costa County Recorder’s

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Office on April 16, 2010, as DOC-2010-0075688-00, (9) a trustee’s deed upon sale dated October

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14, 2010 and recorded in the official records of the Contra Costa County Recorder’s Office on

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November 10, 2010, (10) the Corrected Second Amended Class Action Complaint in Mandrigues,

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et al. v. World Savings, Inc., et al., No. C-07-04497-JF (RS), (10) the Order Granting Final

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Approval of Class Settlement in In re Wachovia Corp. “Pick-A-Payment” Mortgage Marketing and

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Sales Practice Litigation, No. 09-MD-02015-JF, (11) Exhibit C, the exclusion list to Docket No.

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157-2 in In re Wachovia Corp. “Pick-A-Payment” Mortgage Marketing and Sales Practice

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Litigation, No. 09-MD-02015-JF, (12) Exhibit A, the signed agreement and stipulation of class

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action, to Docket No. 112 in In re Wachovia Corp. “Pick-A-Payment” Mortgage Marketing and

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Sales Practice Litigation, No. 09-MD-02015-JF, and (13) the final judgment in In re Wachovia

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Corp. “Pick-A-Payment” Mortgage Marketing and Sales Practice Litigation, No. 09-MD-02015-JF.
NO. C 12-03407 RS
ORDER

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The request is granted as to document 1, because it is a true and correct copy of a document

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referred to in the complaint on which the complaint necessarily relies, as to documents 2 and 7

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through 9 because they are true and correct copies of official records of the Contra Costa County

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Recorder’s Office, as to 3 through 6 because they are true and correct copies of documents that

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reflect official acts of the United States’ executive department, and as to 10 through 13 because they

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are true and correct copies from the official records of the United States District Court for the

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Northern District of California in cases involving the same parties as those in this case.
III.

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CONCLUSION

For all of the reasons set forth in this order, Perez’s case must be dismissed. Dismissal is

For the Northern District of California

United States District Court

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with prejudice because Perez has abandoned this action and, given that her claims are res judicata,

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there is no set of facts that Perez could plead in an amended complaint that would entitle her to

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recover.

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IT IS SO ORDERED.

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Dated: 11/29/12
RICHARD SEEBORG
UNITED STATES DISTRICT JUDGE

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NO. C 12-03407 RS
ORDER

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