Almogela v. World Savings Bank et al

Filing 21

ORDER by Judge Edward M. Chen Granting 5 Defendants' Motion to Dismiss. (emcsec, COURT STAFF) (Filed on 9/6/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SEGUNDO ALMOGELA,

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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-12-3644 EMC

WORLD SAVINGS BANK, et al.,

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ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS

Defendants.
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(Docket No. 5)
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At the hearing on August 31, 2012, the Court granted Defendants’ motion to dismiss and

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gave Plaintiff leave to file an amended complaint. The reasons were stated on the record. This

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order briefly summarizes the primary reasons for the Court’s ruling, but is intended as a supplement

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to the reasons stated on the record.

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Plaintiff’s complaint as pled does not meet the plausibility requirement of Bell Atlantic Corp.

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v. Twombly, 550 U.S. 544, 556 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). There

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are insufficient allegations about the chain-of-ownership defect. See Sacchi v. Mortgage Elec.

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Registration Sys., No. CV 11-1658 AHM (CWx), 2011 U.S. Dist. LEXIS 68007, at *23 (C.D. Cal.

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June 24, 2011) (noting that “a cause of action for wrongful foreclosure might survive if ‘the

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plaintiff’s complaint identified a specific factual basis for alleging that the foreclosure was not

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initiated by the correct party’”). For example, Plaintiff does not even identify the name of the

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alleged trust or the alleged trustee. In addition, courts have typically rejected “[t]heories that

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securitization undermines the lender’s right to foreclose on a property,” McGough v. Wells Fargo

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Bank, N.A., C12-0050 TEH, 2012 U.S. Dist. LEXIS 84327, at *11 (N.D. Cal. June 18, 2012); courts

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have further rejected challenges to a foreclosure based on a violation of a pooling and service

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agreement, see Sami v. Wells Fargo Bank, No. C 12-00108 DMR, 2012 U.S. Dist. LEXIS 38466, at

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*15 (N.D. Cal. Mar. 21, 2012) (stating that, “[t]o the extent Plaintiff bases her claims on the theory

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that Wells Fargo allegedly failed to comply with the terms of the PSA, the court finds that she lacks

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standing to do so because she is neither a party to, nor a third party beneficiary of, that agreement”);

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and the Ninth Circuit has indicated that only where a promissory note and deed of trust are

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“irreparably split” will a mortgage be rendered unenforceable. Cervantes v. Countrywide Home

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Loans, Inc., 656 F.3d 1034, 1044 (9th Cir. 2011). Finally, the RESPA claim appears to be time

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barred, at least based on the allegations in the complaint as pled.
This order disposes of Docket No. 5.

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For the Northern District of California

United States District Court

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IT IS SO ORDERED.

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Dated: September 6, 2012

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_________________________
EDWARD M. CHEN
United States District Judge

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