Capodiece et al v. Wells Fargo Bank et al

Filing 34

ORDER GRANTING PARTIAL SUMMARY JUDGMENT; GRANTING IN PART REQUEST FOR JUDICIAL NOTICE; GRANTING MOTION TO DISMISS; AND DENYING MOTION TO STRIKE AS MOOT by Judge William Alsup [granting in part and denying in part 6 Motion to Dismiss; finding as moot 7 Motion to Strike]. (whasec, COURT STAFF) (Filed on 5/10/2013)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 11 For the Northern District of California United States District Court 10 MICHAEL CAPODIECE and TERRY L. CAPODIECE, Plaintiffs, 12 13 No. C 13-00032 WHA v. 14 WELLS FARGO BANK and DOES 1–5, 15 Defendants. ORDER GRANTING PARTIAL SUMMARY JUDGMENT; GRANTING IN PART REQUEST FOR JUDICIAL NOTICE; GRANTING MOTION TO DISMISS; AND DENYING MOTION TO STRIKE AS MOOT / 16 17 INTRODUCTION 18 In this wrongful-foreclosure action, defendant filed a motion to dismiss plaintiffs’ 19 complaint. A previous order converted defendant’s motion into one for partial summary 20 judgment. To the extent below, partial summary judgment is GRANTED and defendant’s 21 motion to dismiss is GRANTED. Defendant’s motion to strike portions of plaintiffs’ complaint 22 is DENIED AS MOOT. STATEMENT 23 ALLEGED FACTS. 24 1. 25 In 2005, plaintiffs Michael and Terry Capodiece took out a loan with World Savings 26 Bank to obtain a residential property in Hollister (Dkt. No. 8, Exh. A). They also executed 27 a deed of trust in favor of World Savings Bank, as lender and beneficiary, and Golden West 28 Savings Association Service Company, as trustee (Exh. B). In 2007, World Savings Bank 1 changed its name to Wachovia Mortgage, FSB (Exh. D). In 2009, it again changed its name 2 to Wells Fargo Bank Southwest, N.A. before merging into defendant Wells Fargo Bank, N.A. 3 (Exh. E). Wells Fargo is now the successor-in-interest. In 2011, a notice of default and election 4 to sell under deed of trust was recorded at the San Benito County Recorder’s Office (Exh. H). 5 In 2012, an individual named Ric Juarez allegedly signed and filed a substitution of trustee that 6 swapped out Gold West Savings with NDEX West, LLC (Compl. ¶¶ 10–12). 7 Plaintiffs’ complaint is essentially two-fold. First, plaintiffs allege the substitution of 8 trustee was a fraud because: Ric Juarez was not an authorized agent of Wells Fargo; the notary 9 improperly acknowledged Ric Juarez’s signature without ascertaining Ric Juarez’s identity; or the notary’s signature was a forgery (id. at ¶¶ 13–17). Therefore, according to plaintiffs, NDEX 11 For the Northern District of California United States District Court 10 West was improperly substituted and Golden West Savings is still the deed of trust’s trustee (id. 12 at ¶ 18). Second, plaintiffs allege that Wells Fargo violated California Civil Code Section 2923.5 13 by not properly contacting them about their financial situation and that the notice of default 14 improperly included fraudulent fees and charges (id. at ¶¶ 19–20, 22). The complaint alleges 15 six state-law claims: five against Wells Fargo, and one against the notary. Wells Fargo, a 16 citizen of South Dakota, removed this action from state court on diversity grounds. It then 17 moved to dismiss under FRCP 12(b)(6). 18 2. PROCEDURAL HISTORY AFTER THE FIRST HEARING ON DEFENDANT’S MOTION TO DISMISS. 19 The first hearing on defendant’s motion to dismiss was on April 11, 2013. Plaintiff’s 20 counsel, Emmanuel Fomukong Fobi, failed to appear at the hearing, and instead arranged for 21 another lawyer to make a “special appearance.” This was done without notice and in violation 22 of the local rules. Because of plaintiff’s counsel’s absence and the replacement counsel’s lack 23 of familiarity with this action, this Court was unable to hold a normal hearing on the motion to 24 dismiss. Pursuant to FRCP 12(d), an order dated April 12 converted the motion to dismiss into 25 one for partial summary judgment. At issue was whether Ric Juarez was properly authorized to 26 sign the substitution of trustee. Defendant filed several declarations to establish that Ric Juarez 27 and NDEX West had such authorization. In response, plaintiff filed a declaration generally 28 2 1 claiming further discovery is required. This order now examines the motion for partial summary 2 judgment before proceeding to analyze the motion to dismiss. 3 ANALYSIS 4 As a preliminary matter, this order declines to take judicial notice of the declaration 5 appended to the notice of default (Dkt. No. 8, Exh. H, Loney Decl.). Alleged facts sworn to in 6 an extra-file declaration do not become gospel via a request for judicial notice. The facts stated 7 therein can still be subject to dispute. But because the other documents are matters of public 8 record not generally subject to dispute, judicial notice of them is appropriate under FRE 201. 9 Therefore, this order refuses to take judicial notice that “[t]he borrower has surrendered the property as evidenced by either a letter confirming the surrender or delivery of the keys” (ibid.). 11 For the Northern District of California United States District Court 10 Defendant’s request for judicial notice is GRANTED IN PART AND DENIED IN PART. 1. 12 13 LEGAL STANDARD. A. 14 Summary Judgment. Summary judgment is proper when the pleadings and the evidence in the record “show 15 that there is no genuine issue as to any material fact and that the moving party is entitled to 16 judgment as a matter of law.” FRCP 56(c). An issue is genuine only if there is sufficient 17 evidence for a reasonable fact-finder to find for the non-moving party, and material only if the 18 fact may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 19 (1986). 20 21 B. Motion to Dismiss. To survive a FRCP 12(b)(6) motion to dismiss, a complaint must contain sufficient 22 factual matter that, if accepted as true, states a claim for relief plausible on its face. Ashcroft v. 23 Iqbal, 556 U.S. 662, 678 (2009). A facially plausible claim will specify sufficient factual 24 allegations from which reasonable inferences establishing the defendant’s liability can be drawn. 25 Ibid. While a court “must take all of the factual allegations in the complaint as true,” it is “not 26 bound to accept as true a legal conclusion couched as a factual allegation.” Id. at 678 (quoting 27 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (internal quotation marks omitted). 28 This “plausibility standard” is not a probability requirement. Ibid. Still, “it asks more than a 3 1 sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are 2 ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility 3 and plausibility of entitlement to relief.’” Ibid. (quoting Twombly, 550 U.S. at 557) (internal 4 quotations marks omitted). 5 In all averments of fraud, however, the circumstances constituting fraud must be stated 6 with particularity. FRCP 9(b). “Averments of fraud must be accompanied by ‘the who, what, 7 when, where, and how’ of the misconduct charged.” Vess v. Ciba–Geigy Corp. USA, 317 F.3d 8 1097, 1106 (9th Cir. 2001) (citation omitted). A complaint must set forth what is false or 9 misleading about a statement and why it is false — not merely neutral facts identifying the 11 For the Northern District of California United States District Court 10 transaction. Ibid. This order will now consider each claim. 2. RIC JUAREZ WAS PROPERLY AUTHORIZED TO SIGN THE SUBSTITUTION OF TRUSTEE. 12 The declarations filed by defendant establish that Ric Juarez was properly authorized to 13 execute the substitution of trustee, while plaintiff offers no evidence to the contrary. On April 9, 14 2010, Wells Fargo gave NDEX West limited power of attorney to “execute all documents 15 necessary and appropriate to conduct or vacate customary and reasonably necessary and 16 appropriate for the management and prosecution of foreclosure matters on behalf of Wells 17 Fargo” (Pummill Decl, Exh. B). These responsibilities included the execution of substitutions 18 of trustee and grant deeds (ibid.). The instrument conferring this limited power of attorney was 19 signed by Jaimee Gonzales, a vice president of Wells Fargo, who “overs[aw] the activities of all 20 of Wells Fargo’s vendors providing foreclosure services including those of NDEX” (Gonzales 21 Decl. at ¶ 3). 22 Jaimee Gonzales also stated that Wells Fargo authorized NDEX West to execute and 23 record the substitution of trustee at issue here (ibid.). NDEX West’s president files a declaration 24 attesting that Ric Juarez was authorized to execute and record the substitution of trustee at issue 25 here, on behalf of NDEX West (Pummill Decl. ¶ 7). Finally, Ric Juarez confirms that he signed 26 the substitution of trustee (Juarez Decl. ¶ 4). In contrast, plaintiff’s counsel offers nothing useful 27 to rebut any of defendant’s declaration. Instead, plaintiff’s counsel filed a declaration to insist 28 there “may be varying signatures of Rick [sic] Juarez” (Fobi Decl. ¶ 3, Dkt. No.30) (emphasis 4 1 added). This is insufficient to establish a disputed issue of material fact or to justify a further 2 delay for more discovery. Furthermore, if counsel had wished to present an expert handwriting 3 analysis, as stated at oral argument, then counsel could have and should have done so in 4 opposition to the motion for partial summary judgment. This order finds there is no genuine 5 dispute that Ric Juarez was properly authorized, and to that extent, partial summary judgment 6 is GRANTED. This order now proceeds to the remaining issues raised in defendant’s motion to 7 dismiss. 8 3. PLAINTIFFS’ FIRST CLAIM IS DISMISSED. 9 Wells Fargo does not move to dismiss plaintiffs’ first claim, “notorial misconduct,” presumably because the claim is not alleged against it. Rather, plaintiffs allege that “Brooke L. 11 For the Northern District of California United States District Court 10 Ewing notarized a document without properly ascertaining the identity of the signer[]” (Compl. 12 ¶ 41). The complaint’s caption does not name Brooke L. Ewing as a defendant, and there is 13 no record that Brooke L. Ewing was ever properly served. Therefore, plaintiffs’ first claim 14 is DISMISSED WITHOUT PREJUDICE. Plaintiffs may file another complaint against Brooke L. 15 Ewing in some other court if they so choose, subject to motion practice there. Or, plaintiffs 16 may seek leave to amend this pleading, as set forth below, provided that the amended pleading is 17 promptly served on Ewing together with the summons. This order makes no ruling on whether 18 Ewing would be subject to personal jurisdiction here. 19 4. 20 For their fifth claim, plaintiffs allege that Wells Fargo violated California Civil Code PLAINTIFFS’ FIFTH CLAIM IS PREEMPTED BY HOLA. 21 Section 2923.5, which requires notice of default to borrowers (id. at ¶¶ 20–21, 32). In response, 22 Wells Fargo contends it was exempted from Section 2923.5 compliance because “plaintiffs have 23 agreed to surrender the property[]” and that plaintiffs’ Section 2923.5 claim is preempted by 24 the Home Owners Loan Act (“HOLA”) (Mot. at 7) (citing Cal. Civ. Code § 2923.5(h) (2012)). 25 This order agrees that plaintiffs’ Section 2923.5 claim is preempted here. 26 27 Our court of appeals has held that the Office of Thrift Supervision (“OTS”) and HOLA preempt the entire field of lending regulations for federal savings associations. Silvas v. 28 5 1 E*Trade Mortg. Corp., 514 F.3d 1001, 1005 (9th Cir. 2008) (citing 12 C.F.R. 560.2). The 2 relevant portion of 12 C.F.R. 560.2 reads: 3 4 5 6 7 OTS hereby occupies the entire field of lending regulation for federal savings associations. OTS intends to give federal savings associations maximum flexibility to exercise their lending powers in accordance with a uniform federal scheme of regulation. Accordingly, federal savings associations may extend credit as authorized under federal law, including this part, without regard to state laws purporting to regulate or otherwise affect their credit activities, except to the extent provided in paragraph (c) of this section. 8 12 C.F.R. 560.2(a) (emphasis added). Illustrative examples of state law preempted under 9 paragraph (b) include: 11 For the Northern District of California United States District Court 10 12 (9) Disclosure and advertising, including laws requiring specific statements, information, or other content to be included in credit application forms, credit solicitations, billing statements, credit contracts, or other credit-related documents and laws requiring creditors to supply copies of credit reports to borrowers or applicants; 13 14 (10) Processing, origination, servicing, sale or purchase of, or investment or participation in, mortgages[.] 15 12 C.F.R. 560.2(b)(9)–(10). Areas of state law exempted from preemption under paragraph (c) 16 include contract and commercial law, real property law, and tort law. 12 C.F.R. 560.2(c). 17 Our court of appeals also outlined the proper test as to whether state law is preempted under 18 12 C.F.R. 560.2: 19 20 21 22 23 [T]he first step will be to determine whether the type of law in question is listed in paragraph (b). If so, the analysis will end there; the law is preempted. If the law is not covered by paragraph (b), the next question is whether the law affects lending. If it does, then, in accordance with paragraph (a), the presumption arises that the law is preempted. This presumption can be reversed only if the law can clearly be shown to fit within the confines of paragraph (c). For these purposes, paragraph (c) is intended to be interpreted narrowly. Any doubt should be resolved in favor of preemption. 24 Silvas, 514 F.3d at 1005 (quoting OTS, Final Rule, 61 Fed. Reg. 50951, 50966–67 (Sept. 30, 25 1996)) (emphasis added). 26 Previous orders by the undersigned judge have held, on similar facts, that HOLA 27 applied to a loan which originated with a bank regulated by the Office of Thrift Supervision but 28 subsequently merged with a national bank. Hrdina v. World Sav. Bank, FSB, No. C 11-5173 6 1 WHA, 2012 WL 294447 at *4 (N.D. Cal. Jan. 31, 2012); Johannson v. Wachovia Mortg. FSB, 2 No. C11-2822 WHA, 2011 WL 3443952 at *8 (N.D. Cal. Aug. 5, 2011). 3 Our court of appeals has not yet reached the issue of whether Section 2923.5 is 4 preempted. Previous orders by the undersigned judge have held that HOLA may not preempt 5 claims involving state laws that only incidentally affected lending operations, such as 6 “state-law contract claims [which] . . . challeng[e] [a] defendant’s general conduct of stalling, 7 avoiding . . . requests and refusing to accept payments, [and] not the substance of its lending 8 practices such as terms of credit, disclosures, or advertising[,]” Avila v. Wells Fargo Bank, 9 No. C 12-1237 WHA, 2012 WL 2953117 at *11 (N.D. Cal. July 19, 2012), or claims involving “laws against fraud and unfair business practices [which] apply broadly to all businesses and 11 For the Northern District of California United States District Court 10 their practices,” Rodriguez v. U.S. Bank Nat’l Ass’n, No. C 12-0989 WHA, 2012 WL 1996929 12 at *7 (N.D. Cal. June 4, 2012). 13 In our circuit, other judges have ruled that Section 2923.5 is preempted by HOLA. 14 See, e.g., Rodriguez v. JP Morgan Chase & Co., 809 F. Supp. 2d 1291 (S.D. Cal. 2011) 15 (Judge Marilyn Huff); Ahmed v. Wells Fargo Bank & Co., No. C 11-0436 SI, 2011 WL 1751415 16 (N.D. Cal. May 9, 2011) (Judge Susan Illston); Taguinod v. World Sav. Bank, FSB, 755 F. Supp. 17 2d 1064 (C.D. Cal. 2010) (Judge Stephen Wilson); DeLeon v. Wells Fargo Bank, N.A., 729 F. 18 Supp. 2d 1119 (N.D. Cal. 2010) (Judge Jeremy Fogel); Parcray v. Shea Mortg. Inc., No. 09- 19 1942, 2010 WL 1659369 (E.D. Cal. Apr. 23, 2010) (Judge Oliver Wanger). This order will 20 follow that body of precedent. In doing so, this order recognizes that the argument that HOLA 21 preempts any state statute which “affects lending” goes too far. Under that test, California’s 22 entire traditional regime within its civil code for regulating deeds of trusts and trustee sales 23 would be preempted. No court has ever so held, and indeed thrifts as well as national banks have 24 sought to reap the benefits of California’s traditional system. Nonetheless, this order shall 25 follow the overwhelming body of case law in this circuit as to the preemption of Section 2923.5. 26 As in Taguinod, plaintiffs here cite Mabry v. Superior Court, 185 Cal. App. 4th 208 27 (2010), for the proposition that Section 2923.5 is not preempted by HOLA. Taguinod, 28 755 F. Supp at 1073–74. But as Judge Stephen Wilson aptly noted, not only is Mabry the 7 1 only California court to explicitly hold that Section 2923.5 is not preempted, “[t]his is not a 2 question of interpreting state law, but rather a question of federal preemption[,]” so the Mabry 3 holding is not binding. Id. at 1074. 4 Therefore, plaintiffs’ fifth claim is DISMISSED. This order also notes that even the Mabry 5 decision recognized that relief under Section 2923.5 cannot include damages as plaintiffs request 6 here; the sole available remedy under Section 2923.5 is postponement of a foreclosure sale. 7 Mabry, 185 Cal. App. 4th at 226. If the sale already occurred, no remedy is available. Stebley v. 8 Litton Loan Servicing LLP, 202 Cal. App. 4th 522, 526 (2011) (citing Mabry, 185 Cal. App 4th 9 at 235–236). Plaintiffs do not disclose the status of any such sale. According to defendant, however, a trustee’s sale of the property was set for January 18, 2012, but that date was 11 For the Northern District of California United States District Court 10 continued pursuant to plaintiffs filing for bankruptcy (Mot. at 2). 12 5. 13 Plaintiffs’s second claim is an alleged violation of California Business and Professional 14 Code Section 17200. Section 17200 “prohibits unfair competition, including unlawful, unfair, 15 and fraudulent business acts.” Korea Supply Co. v. Lockheed Martin Corp., 29 Cal.4th 1134, 16 1143 (2003) (citations omitted). “Each prong of . . . [Section 17200] is a separate and distinct 17 theory of liability.” Birdsong v. Apple, Inc., 590 F.3d 955, 959 (9th Cir. 2009). Section 17200 18 “covers a wide range of conduct. It embraces anything that can properly be called a business 19 practice and that at the same time is forbidden by law.” Korea Supply, 29 Cal.4th at 1143 20 (citations omitted). The statute “borrows violations from other laws by making them 21 independently actionable as unfair competitive practices. In addition, under Section 17200, a 22 practice may be deemed unfair even if not specifically proscribed by some other law.” Ibid. 23 (citations omitted). 24 PLAINTIFFS’ SECOND CLAIM MUST BE DISMISSED. According to plaintiffs, relief under Section 17200 would be proper because Wells Fargo 25 failed to comply with California Civil Code Sections 2924 and 2923.5, “among other laws” 26 (Compl. ¶ 52). Their Section 17200 claim, however, fails for two reasons. First, plaintiffs only 27 provide details regarding Wells Fargo’s alleged Section 2923.5 violation. Since plaintiffs’ 28 Section 2923.5 claim is preempted by HOLA here, a Section 17200 claim based on a Section 8 1 2923.5 violation cannot survive. This order finds that plaintiffs do not adequately plead any 2 other grounds for a Section 17200 claim. Second, “[t]o have standing to bring a claim under 3 [Section 17200], a private plaintiff must show that it ‘has suffered injury in fact and has lost 4 money or property as a result of’ unfair competition.” Pom Wonderful LLC v. Coca-Cola Co., 5 679 F.3d 1170, 1178 (9th Cir. 2012) (quoting Cal. Bus. & Prof. Code § 17204). While plaintiffs 6 do allege in a conclusory manner that they “suffered injury in fact” (Compl. ¶ 56), they do not 7 allege how they lost any money or property as a result of any Section 17200 violation, or even 8 what money or property they lost. Therefore, plaintiffs’ second claim is DISMISSED. In any 9 amended complaint, plaintiffs must (if true) adequately plead in non-conclusory terms a Section 17200 claim based on grounds other than Section 2923.5, as well as what injury they 11 For the Northern District of California United States District Court 10 suffered. 12 6. 13 For their fourth claim, plaintiffs allege slander of title. “Slander or disparagement of PLAINTIFFS’ FOURTH CLAIM MUST BE DISMISSED. 14 title occurs when a person, without a privilege to do so, publishes a false statement that 15 disparages title to property and causes the owner thereof some special pecuniary loss or 16 damage.” Barrionuevo v. Chase Bank, N.A., 885 F. Supp. 2d 964, 975 (N.D. Cal. 2012) (Judge 17 Edward M. Chen) (quoting Sumner Hill Homeowners’ Ass’n, Inc. v. Rio Mesa Holdings, LLC, 18 205 Cal. App. 4th 999, 1030 (2012)) (internal quotation marks omitted). The tort’s elements 19 include: “(1) a publication, (2) without privilege or justification, (3) falsity, and (4) direct 20 pecuniary loss.” Id. (citing Sumner Hill, 205 Cal. App. 4th at 999). 21 Here, plaintiffs allege many, but not all, of the elements necessary for slander of title. 22 Plaintiffs allege that the substitution of trustee was false because the signatory, Ric Juarez, 23 was not authorized to sign it. This then “rendered Plaintiffs’ title to the Subject Property as 24 unmarketable[]” (Compl. ¶ 68). Putting aside for the moment that partial summary judgment 25 was granted, establishing Ric Juarez’s authorization, plaintiffs offer no well-pleaded, 26 non-conclusory allegations as to what direct pecuniary loss they suffered (if any) from the 27 alleged slander of title. Plaintiffs do not even allege whether their home was foreclosed on. 28 Therefore, plaintiffs’ fourth claim is DISMISSED. In any amended complaint, plaintiffs must 9 1 allege (if true) what pecuniary harm they suffered in non-conclusory terms and what other basis 2 (if any) exists for this claim. 3 7. PLAINTIFFS INCORRECTLY FRAME PRAYERS FOR RELIEF AS INDEPENDENT CLAIMS. 4 Finally, plaintiffs characterize their request for declaratory and injunctive relief as 5 their third independent claim (id. at ¶¶ 57–65), and refer to their request for an order “vacating 6 and setting aside the Notice of Trustee’s Sale” as their sixth independent claim (id. at ¶ 83). 7 These cannot be independent claims — they are types of remedies. If and when plaintiffs seek 8 leave to amend their complaint, declaratory and injunctive relief may be sought as part of their 9 prayer for relief — not as independent claims for relief. 10 To the extent above, partial summary judgment is GRANTED and Wells Fargo’s motion For the Northern District of California United States District Court CONCLUSION 11 12 to dismiss is GRANTED. Wells Fargo’s motion to strike is DENIED AS MOOT. Plaintiffs may 13 seek leave to amend their complaint and will have until MAY 30, 2013, to file a motion, noticed 14 on the normal 35-day track, for leave to file an amended complaint. Plaintiffs should plead their 15 best case. The motion should clearly explain how the amendments cure the deficiencies 16 identified herein, and should include as an exhibit a redline or highlighted version of the new 17 complaint identifying all changes. If such motion is not filed by the deadline, this case will be 18 closed and judgment entered. 19 20 IT IS SO ORDERED. 21 22 Dated: May 9, 2013. 23 WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 24 25 26 27 28 10

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