Weaver v. Wells Fargo Bank, N.A. et al

Filing 31

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS; AFFORDING PLAINTIFF LIMITED LEAVE TO AMEND; CONTINUING CASE MANAGEMENT CONFERENCE. Counts I and III are dismissed without leave to amend and Counts II and IV are dismissed with leave to amend. Should Weaver wish to file a First Amended Complaint, Weaver shall file such pleading no later than November 18, 2016. The Case Management Conference is continued from December 2, 2016, to January 27, 2017, at 10:30 a.m.; a Joint Case Management Statement shall be filed no later than January 20, 2017. Signed by Judge Maxine M. Chesney on November 1, 2016. (mmclc1, COURT STAFF) (Filed on 11/1/2016)

1
2
3
4
5
6
7

IN THE UNITED STATES DISTRICT COURT

8

FOR THE NORTHERN DISTRICT OF CALIFORNIA

9
10

ANNIE G. WEAVER,
Plaintiff,

United States District Court
Northern District of California

11
v.

12
13

WELLS FARGO BANK, N.A., et al.,
Defendants.

14

Case No. 16-cv-04907-MMC
ORDER GRANTING DEFENDANTS'
MOTION TO DISMISS; AFFORDING
PLAINTIFF LIMITED LEAVE TO
AMEND; CONTINUING CASE
MANAGEMENT CONFERENCE
Re: Dkt. No. 7

15
16

Before the Court is the "Motion to Dismiss the Complaint," jointly filed September

17

1, 2015, by defendants Wells Fargo Bank, N.A. ("Wells Fargo") and Bank of New York

18

Mellon ("BNYM"), in which defendant NDeX West, LLC ("NDeX") has joined. Plaintiff

19

Annie G. Weaver ("Weaver") has filed opposition, to which Wells Fargo and BNYM have

20

replied. Having read and considered the papers filed in support of and in opposition to

21

the motion, the Court rules as follows.1

22

1. Count I, titled "Wrongful Foreclosure," is subject to dismissal without leave to

23

amend. The claim is based on the theory that, at the time Wells Fargo foreclosed on

24

Weaver's real property, it held no interest in Weaver's loan, because Wells Fargo's

25

predecessor in interest had "securitized substantially all of its residential mortgage loans,"

26

including Weaver's loan, by "sell[ing]" the loans to a trust that operated as a "real estate

27
1

28

By order filed October 31, 2016, the Court took the matter under submission.

mortgage investment conduit ('REMIC')" and receiving in return from the trust "securities

2

certificates." (See Compl. ¶¶ 11, 13-15, 25.) Said claim, however, fails as a matter of

3

law, as securitization "merely creates a separate contract, distinct from plaintiff's debt

4

obligations under the note, and does not change the relationship of the parties in any

5

way." See Logvinov v. Wells Fargo Bank, 2011 WL 6140995, at *3 (N.D. Cal. December

6

9, 2011) (internal quotation, alteration and citation omitted). Consequently, "[t]he

7

argument that parties lose their interest in a loan when it is assigned to a trust pool or

8

REMIC has been rejected by numerous courts." See id. (citing cases); Lane v. Vitek

9

Real Estate Industries Group, 713 F. Supp. 2d 1092, 1099 (E.D. Cal. 2010 (same) (citing

10

cases); see also Permito v. Wells Fargo Bank, N.A., 2012 WL 1380322, at *5 (N.D. April

11
United States District Court
Northern District of California

1

20, 2012) (rejecting "as a matter of law" argument that beneficiary "loses its interest in a

12

deed of trust when the loan is securitized and sold on the secondary market").2

13

2. Count II, titled "Violation of Cal. Fair Employment and Housing Act," is subject

14

to dismissal, with leave to amend. The claim is based on the theory that, in 2007, Wells

15

Fargo's predecessor "placed [Weaver] in the insidious, pick-a-pay mortgage," rather than

16

in a "conventional mortgage" (see Compl. ¶ 45), and that such placement constituted

17

"discrimination" on the basis of marital status, race, gender and/or age (see Compl.

18

¶¶ 43) (identifying Weaver as "a single black woman" who was "sixty-six" years of age in

19

2007). Weaver, however, fails to allege facts to support her conclusory assertion that

20

said placement constituted discrimination. See Ashcroft v. Iqbal, 556 U.S. 662, 678-79

21

(2009) (holding complaint subject to dismissal where it lacks “sufficient factual matter” to

22

support its “legal conclusions”). Moreover, the complaint was filed more than two years

23

after 2007 and fails to include any factual allegations to support an exception to the

24

statute of limitations, such as equitable tolling. See Cal. Gov. Code § 12989.1 (providing

25
2

26
27
28

Weaver also alleges that "the securitization of [Weaver's] mortgage failed." (See
Compl. ¶ 18.) Weaver fails to explain how such allegation supports her claim. In any
event, the securitization, whether successful or not, has no bearing on Weaver's
obligations to Wells Fargo. See Logvinov, 2011 WL 6140995, at *3; Lane, 713 F. Supp.
2d at 1099.
2

1

"aggrieved person may commence a civil action in an appropriate court not later than two

2

years after the occurrence or the termination of an alleged discriminatory housing

3

practice"); Udom v. Fonseca, 846 F.2d 1236, 1238 (9th Cir. 1988) (holding that "to invoke

4

the benefit of tolling, the plaintiff must allege facts that, if believed, would provide a basis

5

for tolling").
3. Count III, titled "Unjust Enrichment," is subject to dismissal without leave to

6
7

amend for the reasons stated above with respect to Count I, as the claim is based on the

8

theory that Wells Fargo, as a result of the above-referenced securitization, does not have

9

an interest in Weaver's loan. (See Compl. ¶¶ 52, 56.)
4. Count IV, titled "Violation of Cal. Civil Code Sections 2923.6(c), (d) and (e)," is

10

United States District Court
Northern District of California

11

subject to dismissal, with leave to amend. The claim is based on the theory that, at the

12

time of the foreclosure, Weaver, through a "third party," was in "[n]egotiations" with Wells

13

Fargo to modify her loan. (See Compl. ¶ 62.) Weaver, however, fails to allege that, prior

14

to the foreclosure, she or a third party acting on her behalf had submitted to Wells Fargo

15

"a complete application for a first lien loan modification." See Cal. Civ. Code § 2923.6(c)

16

(prohibiting foreclosure "while [a] complete first lien loan modification application is

17

pending"); Cal. Civ. Code §§ 2923.6(d), (e) (setting forth restrictions as to timing of

18

foreclosure where loan modification application has been denied).
CONCLUSION

19

For the reasons stated above, defendants' motion to dismiss is hereby GRANTED,

20
21

as follows:

22

1. Counts I and III are DISMISSED without leave to amend; and

23

2. Counts II and IV are DISMISSED with leave to amend. Should Weaver wish to

24

file a First Amended Complaint, Weaver shall file such pleading no later than November

25

18, 2016.

26

//

27

//

28

//
3

1

In light of the above, the Case Management Conference is hereby CONTINUED

2

from December 2, 2016, to January 27, 2017, at 10:30 a.m. A Joint Case Management

3

Statement shall be filed no later than January 20, 2017.

4

IT IS SO ORDERED.

5
6

Dated: November 1, 2016
MAXINE M. CHESNEY
United States District Judge

7
8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4