Zierolf v. Wachovia Mortgage et al

Filing 17

ORDER by Judge Edward M. Chen Granting 4 Defendants' Motion to Dismiss. (emcsec, COURT STAFF) (Filed on 9/11/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JAMES ZIEROLF,

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Plaintiff,
v.

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For the Northern District of California

United States District Court

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No. C-12-3461 EMC

WACHOVIA MORTGAGE, et al.,

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ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS COMPLAINT

Defendants.
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(Docket No. 4)

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Plaintiff James Zierolf filed this action against Wachovia Mortgage, et. al., on April 26,

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2012, in the Superior Court of the State of California, County of Contra Costa. See Docket No. 1.

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Defendants subsequently removed to federal court pursuant to 28 U.S.C. § 1332, and moved to

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dismiss this action on July 9, 2012. See Docket No. 4. Plaintiff did not file an opposition to this

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motion within the time required under this Court’s Civil Local Rules, but did participate in this

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Court’s September 7, 2012, hearing on the motion. For the reasons stated on the record,

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Defendants’ Motion to Dismiss is GRANTED.

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As stated more fully on the record, the Court finds that Plaintiff’s claims regarding the

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origination of his home loan are either preempted by the Home Owners’ Loan Act, 12 U.S.C. §§

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1461, et. seq., and its implementing regulations, or barred from being relitigated here under the

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doctrine of res judicata. Defendants aver that Plaintiff was a class member of In Re: Wachovia

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Corp, in which his loan origination claims regarding Defendant World Savings Bank’s “Pick-A-

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Payment” loans were settled. See In Re: Wachovia Corp, MD-09-02015-JF, 2011 WL 1877630

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(N.D. Cal. May 17, 2011), Order Granting Final Approval of Class Action Settlement (Docket No.

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207). Plaintiff has produced no evidence to show that he was not a member of the class, nor that his

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claims somehow survived the settlement of that matter. As such, his claims regarding the

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origination of his home loan are DISMISSED with prejudice.

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Plaintiff’s remaining post-origination claims are likewise defective. As stated more fully on

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the record, this Court finds that Plaintiff has failed to state his fraud claims with the specificity

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required under Fed. R. Civ. P. 9(b), he has failed to allege that he suffered damages as a result of

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Defendants’ alleged promises to process his application for a home loan modification, and has failed

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to allege causation linking Defendants’ alleged wrongdoing to any damages suffered. Plaintiff

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conceded at the hearing that his complaint must also allege tender or the ability to tender to be
cognizable under Fed. R. Civ. P. 12(b)(6). As such, Plaintiff’s post-origination claims are

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For the Northern District of California

United States District Court

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DISMISSED without prejudice. Plaintiff will have 30 days from the date of this order to file an

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amended complaint.

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This order disposes of Docket No. 4.

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IT IS SO ORDERED.

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Dated: September 11, 2012

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_________________________
EDWARD M. CHEN
United States District Judge

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