Exline v. Citibank, N.A. et al

Filing 19

Order by Hon. Samuel Conti granting 5 Motion to Dismiss.(sclc2, COURT STAFF) (Filed on 11/26/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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NORMAN JOHN EXLINE,

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Plaintiff,

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v.

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For the Northern District of California

United States District Court

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CITIBANK, N.A., as Trustee for
American Home Mortgage Assets
Trust 2006-3, Mortgage-Backed
Pass-Through Certificates 2006-3;
POWER DEFAULT SERVICES, INC.,

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Defendants.

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) Case No. 12-4308-SC
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) ORDER DISMISSING CASE
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On or about March 28, 2012, Plaintiff Norman John Exline

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("Plaintiff") instituted this wrongful foreclosure action by filing

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a Complaint in California Superior Court against Defendants

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Citibank, N.A., as Trustee for American Home Mortgage Assets Trust

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2006-3, Mortgage-Backed Pass-Through Certificates 2006-3

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("Citibank") and Power Default Services, Inc. ("Power")

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(collectively, "Defendants").

RJN Ex. 2 ("Compl.").1

The

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Citibank submitted a request for judicial notice. ECF No. 9
("RJN"). Plaintiff did not oppose the RJN, and the documents
contained therein are judicially noticeable public records. See
Fed. R. Ev. 201. Accordingly, the Court takes judicial notice of
them. The Court may consider judicially noticed documents in the
context of a Rule 12(b)(6) motion to dismiss. See, e.g., Bonner v.
Redwood Mortg. Corp., C 10-00479 WHA, 2010 WL 1267069, at *1 (N.D.
Cal. Mar. 29, 2010) (collecting authorities).

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Complaint included a request for a temporary restraining order

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("TRO"), preliminary injunction, or permanent injunction barring

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the pending foreclosure of Plaintiff's residence.

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July 24, 2012, Plaintiff filed a First Amended Complaint and

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another TRO application before the same state court.

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3 ("FAC").

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2012.

Citibank removed the action to this Court on August 15,

ECF No. 1 ("NOR").2

No. 5 ("MTD").

The motion is fully briefed.

United States District Court

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For the Northern District of California

On

ECF No. 9 Ex.

On August 22, 2012, Citibank moved to dismiss the FAC.

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Id. at 6.

("Opp'n"), 15 ("Reply").

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without oral argument.

ECF

ECF Nos. 11

The motion is suitable for determination

Civ. L.R. 7-1(b).

Plaintiff's FAC asserts two claims: (1) quiet title and (2)

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declaratory relief.

As a preliminary matter, the Court notes that

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"declaratory relief" is a type of relief, not a claim to relief.

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Declaratory relief is only available where a viable legal claim

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entitles the plaintiff to such relief.

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relief claim therefore fails to articulate a "cognizable legal

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theory," Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699

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(9th Cir. 1988), and is DISMISSED WITH PREJUDICE.

Plaintiff's declaratory

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Citibank's removal was timely. A defendant must remove, if at
all, within thirty days of receipt of the complaint "through
service or otherwise." 28 U.S.C. § 1446(b)(1). Citibank states,
and Plaintiff has not disputed, that neither Defendant has been
served with process or entered an appearance before the state
court, NOR ¶ 5, but that Citibank received a copy of the FAC on
July 27, 2012 as part of Plaintiff's July TRO application, id. ¶ 2.
Citibank removed on August 15, well within the thirty-day removal
window. Moreover, because Power has not been served, its consent
is not required. See 28 U.S.C. § 1446(b)(2)(A). The other
requisites of removal jurisdiction under 28 U.S.C. §§ 1332 and 1441
are also present here. See NOR ¶¶ 3 (amount in controversy), 4
(diverse citizenship).

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The gravamen of Plaintiff's quiet title claim is that some,

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though not all, of Plaintiff's loan documents display a different

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loan number than those appearing on the publically recorded notices

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of default and sale.

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argues that California law does not provide a cause of action for

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mismatched loan numbers.

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meaningfully respond to this argument.

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FAC ¶ 10; see also Opp'n at 5-6.

MTD at 3-5.

The Court agrees with Citibank.

Citibank

Plaintiff does not
See Opp'n at 5-6.
Plaintiff cites no authority

for the proposition that a mismatch between the loan numbers on

United States District Court

For the Northern District of California

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some loan documents and those on the publically recorded

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foreclosure notices can halt an otherwise valid foreclosure sale.

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Conspicuously absent from the FAC, as well as Plaintiff's

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opposition, is any averment that Plaintiff is not in default, that

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Defendants lack the right to foreclose, or that the nonjudicial

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foreclosure of his property suffers from any defect other than the

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mismatched loan numbers.

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California's nonjudicial foreclosure scheme does not require loan

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numbers to appear on the foreclosure-related notice documents, let

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alone require that they match.

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et seq.

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him to the relief he seeks.

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alleges the facts underlying his claim, the allegations do not

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state a claim upon which relief can be granted.

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title claim, therefore, is DISMISSED.

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fails as a matter of law, it cannot be saved by further amendment.

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The dismissal is therefore WITH PREJUDICE.

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Vittorio, 658 F.3d 1090, 1105 (9th Cir. 2011) (though leave to

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amend should be liberally granted, even when leave is not

Moreover, as Citibank points out,

See generally Cal. Civ. Code § 2924

Plaintiff fails to identify any legal authority entitling
Thus, though Plaintiff adequately

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Plaintiff's quiet

Moreover, because the claim

See Silva v. Di

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requested, dismissal with prejudice is warranted when claim cannot

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be saved by amendment).

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For the foregoing reasons, the Court GRANTS Defendant

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Citibank, N.A.'s motion to dismiss.

Plaintiff Norman John Exline's

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First Amended Complaint is DISMISSED WITH PREJUDICE as to all

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Defendants.

This dismissal terminates the above-captioned case.

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IT IS SO ORDERED.

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United States District Court

For the Northern District of California

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Dated:

November 26, 2012
UNITED STATES DISTRICT JUDGE

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