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)
1
2
3
4
5
6
7
IN THE UNITED STATES DISTRICT COURT
8
FOR THE NORTHERN DISTRICT OF CALIFORNIA
9
SAN FRANCISCO DIVISION
11
For the Northern District of California
United States District Court
10
MARIA PEREZ,
12
13
14
No. C 12-03407 RS
Plaintiff,
ORDER GRANTING MOTION TO
DISMISS
v.
WACHOVIA MORTGAGE, a division of
WELLS FARGO BANK, N.A., et al.,
15
16
Defendants.
____________________________________/
17
18
19
20
Maria Perez took out an adjustable rate “pick a payment” mortgage secured by her home
21
from World Saving Bank, FSB, in March of 2005. World Savings Bank subsequently changed its
22
name to Wachovia Mortgage, FSB. Thereafter, Wachovia Mortgage was merged into Wells Fargo
23
Bank, N.A. Perez, representing herself, filed a complaint in June 2012, alleging that Wachovia
24
violated the Truth in Lending Act (15 U.S.C. §1601, et seq.) and the California Unfair Competition
25
Law (Cal. Bus. & Prof. Code § 17200, et seq.), as well as made fraudulent omissions, breached a
26
contract, and breached the covenant of good faith and fair dealing, in giving her the mortgage.
27
Defendant Wells Fargo has moved to dismiss Perez’s complaint.
28
NO. C 12-03407 RS
ORDER
1
It appears that Perez has abandoned this action. She did not file an opposition to the motion
2
to dismiss, nor did she appear at the hearing on that motion. For this reason alone, defendant’s
3
motion to dismiss may be granted. For the reasons discussed below, going to the merits of Perez’s
4
claims, the motion to dismiss is granted with prejudice.
I.
5
MOTION TO DISMISS
Amended Class Action Complaint in Mandrigues, et al. v. World Savings, Inc., et al., No. C-07-
8
04497-JF (RS), a class action challenging World Savings Bank’s practices in connection with
9
making adjustable rate “pick a payment” residential mortgages between August 1, 2003 and
10
For the Northern District of California
Defendants note that Perez’s complaint is substantially identical to the Corrected Second
7
United States District Court
6
December 1, 2008. See infra II. The Mandrigues case led to In re Wachovia Corp. “Pick-A
11
Payment” Mortgage Marketing and Sales Practice Litigation in which the court certified a class and
12
approved a class action settlement. Plaintiff is included in the definition of the class that was
13
certified in that case, as she concedes in her complaint by alleging that she opted out of the proposed
14
class action settlement. Perez’s allegation that she opted out of the settlement is contradicted by the
15
official court record in that case. Her name does not appear on the opt-out list. See infra II.
16
Therefore, the class action settlement is res judicata to her present individual suit, which makes the
17
same legal claims, arising out of the same factual circumstances, against the same parties, as the
18
Mandrigues case. See Citizens for Open Access to Sand & Tide, Inc.v. Seadrift Ass’n, 60 Cal. App.
19
4th 1053, 1065 (1998).
20
Furthermore, even if Perez’s claims were not barred by the settlement in the prior litigation
21
over Wachovia’s adjustable rate mortgage practices, she has waited too long to bring them. She
22
took out her mortgage in 2005, but did not file her lawsuit until seven years later in June 2012. The
23
applicable statutes of limitations for her claims have long passed. See Truth in Lending Act, 15
24
U.S.C. § 1640(e) (one year statute of limitations for damages claims); Cal. Code of Civ. Proc. §
25
338(a) (three year statute of limitations for fraudulent omissions); Unfair Competition Law, Cal.
26
Bus. & Prof. Code §17208 (four year statute of limitations); Cal. Code of Civ. Proc. § 337 (four year
27
statute of limitations running from February 15, 2008, when she made her last payment under the
28
NO. C 12-03407 RS
ORDER
2
1
contract). There is, therefore, no need to address the remaining arguments advanced by the
2
defendants on the merits, including preemption and failure to state a claim.
3
4
II.
REQUEST FOR JUDICIAL NOTICE
In connection with its motion to dismiss, defendant requests that the Court take judicial
5
notice pursuant to Federal Rule of Evidence 201(b)(2) of certain documents: (1) an adjustable rate
6
mortgage note signed and dated March 31, 2005 by plaintiff; (2) a deed of trust signed and dated
7
March 31, 2005 by plaintiff and recorded in the records of the Contra Costa County Recorder’s
8
Office on April 8, 2005, as DOC-5005-0121802-00, (3) a certificate of corporate existence dated
9
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
10
November 19, 2007, from the Office of Thrift Supervision , Department of the Treasury, (5) the
11
charter of Wachovia Mortgage, FSB, dated December 31, 2007, and signed by the Office of Thrift
12
Supervision, (6) the official certification of the Comptroller of the Currency stating that effective
13
November 1, 2009, Wachovia Mortgage, FSB converted to Wells Fargo Bank Southwest, N.A.,
14
which then merged with and into Wells Fargo Bank, N.A., (7) a notice of default and election to sell
15
under deed of trust dated June 24, 2008, and recorded in the official records of the Contra Costa
16
County Recorder’s Office on June 27, 2008, as DOC-2008-0144977-00, (8) a notice of trustee’s sale
17
dated April 6, 2010, and recorded in the official records of the Contra Costa County Recorder’s
18
Office on April 16, 2010, as DOC-2010-0075688-00, (9) a trustee’s deed upon sale dated October
19
14, 2010 and recorded in the official records of the Contra Costa County Recorder’s Office on
20
November 10, 2010, (10) the Corrected Second Amended Class Action Complaint in Mandrigues,
21
et al. v. World Savings, Inc., et al., No. C-07-04497-JF (RS), (10) the Order Granting Final
22
Approval of Class Settlement in In re Wachovia Corp. “Pick-A-Payment” Mortgage Marketing and
23
Sales Practice Litigation, No. 09-MD-02015-JF, (11) Exhibit C, the exclusion list to Docket No.
24
157-2 in In re Wachovia Corp. “Pick-A-Payment” Mortgage Marketing and Sales Practice
25
Litigation, No. 09-MD-02015-JF, (12) Exhibit A, the signed agreement and stipulation of class
26
action, to Docket No. 112 in In re Wachovia Corp. “Pick-A-Payment” Mortgage Marketing and
27
Sales Practice Litigation, No. 09-MD-02015-JF, and (13) the final judgment in In re Wachovia
28
Corp. “Pick-A-Payment” Mortgage Marketing and Sales Practice Litigation, No. 09-MD-02015-JF.
NO. C 12-03407 RS
ORDER
3
1
The request is granted as to document 1, because it is a true and correct copy of a document
2
referred to in the complaint on which the complaint necessarily relies, as to documents 2 and 7
3
through 9 because they are true and correct copies of official records of the Contra Costa County
4
Recorder’s Office, as to 3 through 6 because they are true and correct copies of documents that
5
reflect official acts of the United States’ executive department, and as to 10 through 13 because they
6
are true and correct copies from the official records of the United States District Court for the
7
Northern District of California in cases involving the same parties as those in this case.
III.
8
9
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
10
with prejudice because Perez has abandoned this action and, given that her claims are res judicata,
11
there is no set of facts that Perez could plead in an amended complaint that would entitle her to
12
recover.
13
IT IS SO ORDERED.
14
15
16
Dated: 11/29/12
RICHARD SEEBORG
UNITED STATES DISTRICT JUDGE
17
18
19
20
21
22
23
24
25
26
27
28
NO. C 12-03407 RS
ORDER
4
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?