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

Filing 46

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS; AFFORDING PLAINTIFF LEAVE TO AMEND; CONTINUING CASE MANAGEMENT CONFERENCE. Should plaintiff wish to file a Second Amended Complaint, she shall file such pleading no later than March 13, 2017. The Case Management Conference is hereby continued to April 21, 2017, at 10:30 a.m. A Joint Case Management Statement shall be filed no later than April 14, 2017. Signed by Judge Maxine M. Chesney on 02/24/17. (mmclc2, COURT STAFF) (Filed on 2/24/2017)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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ANNIE G. WEAVER,
Plaintiff,

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v.

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WELLS FARGO BANK, N.A.,
Defendant.

United States District Court
Northern District of California

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Case No. 16-cv-04907-MMC
ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS; AFFORDING
PLAINTIFF LEAVE TO AMEND;
CONTINUING CASE MANAGEMENT
CONFERENCE
Re: Dkt. No. 35

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Before the Court is the “Motion to Dismiss the First Amended Complaint,” filed

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December 2, 2016, by defendant Wells Fargo Bank, N.A. (“Wells Fargo”). 1 Plaintiff Annie

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G. Weaver (“Weaver”) has filed opposition, to which Wells Fargo has replied. Having

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read and considered the papers filed in support of and in opposition to the motion, the

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Court rules as follows.2

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By order filed November 1, 2016, the Court dismissed Weaver’s initial complaint in

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its entirety and granted Weaver leave to amend to allege sufficient facts to support two of

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her four causes of action. Thereafter, on November 18, 2016, Weaver filed her First

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Amended Complaint (“FAC”). By the instant motion, Wells Fargo argues Weaver has

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failed to cure the deficiencies previously identified by the Court. As set forth below, the

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Court agrees.

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In Count I of the FAC, titled “Violation of Cal. Fair Employment and Housing Act,”

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The motion is also filed on behalf of Bank of New York Mellon (“BNYM”). The
operative complaint, however, includes no claims against BNYM.
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By order filed January 20, 2017, the Court took the matter under submission.

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Weaver’s claim is based on the theory that, in 2007, “Wells Fargo defendants

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deliberately, fraudulently and maliciously placed [Weaver], a black woman living in

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Oakland, in a high-cost subprime loan, precisely because she is a member of a minority

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group Wells Fargo targeted for subprime ‘ghetto’ loans.” (See FAC ¶ 22.) The Court

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previously dismissed the claim as pleaded in Weaver’s initial complaint for two reasons:

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(1) Weaver’s failure to “include any factual allegations to support an exception to the

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[two-year] statute of limitations, such as equitable tolling” (see Order, filed Nov. 1, 2016,

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at 2:23-24), and (2) Weaver’s failure to include “facts to support [her] conclusory

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assertion that . . . placement [into such loan] constituted discrimination” (see id. at 2:19-

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United States District Court
Northern District of California

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20).
In her FAC, Weaver now alleges she “did not learn that Wells Fargo’s

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discriminatory actions constituted a violation of her civil rights and property rights until her

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daughter hired a forensic mortgage loan auditor and lawyer earlier this year.” (See FAC

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¶ 33.)3 Without an additional showing, however, such allegations do not suffice to

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support tolling of the statute of limitations. See, e.g., Fox v. Ethicon Endo-Surgery, Inc.,

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35 Cal. 4th 797, 807-08 (2005) (holding discovery rule “only delays accrual until the

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plaintiff has, or should have, inquiry notice of the cause of action”; further holding plaintiff

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“must specifically plead facts to show . . . the inability to have made earlier discovery

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despite reasonable diligence”) (internal quotation and citation omitted).

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Moreover, Weaver has added no new allegations sufficient to support an inference

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of discrimination. In particular, the new allegations to which she cites (see FAC ¶¶ 26-27)

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as well as the earlier allegations on which she relies (see id. at 3:6-4:5; id. ¶¶ 22-25) all

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pertain to Wells Fargo, whereas the lender with whom she alleges she negotiated the

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subject loan in 2007 was not Wells Fargo, but World Savings Bank FSB, a “predecessor-

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in-interest” (see id. at 2:2-9; id. ¶¶ 4-7, 24).

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Weaver’s initial complaint was filed August 25, 2016, and, as noted above, the
FAC was filed November 18, 2016.
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Accordingly, Count I is subject to dismissal.

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In Count II of the FAC, titled “Violation of Cal. Civil Code Sections 2923.6(c), (d)

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and (e),” Weaver’s claim is based on the theory that “Wells Fargo sold [her] home in

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foreclosure” while her “application for a loan modification was pending.” (See FAC ¶ 37.)

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The Court previously dismissed the claim as pleaded in Weaver’s initial complaint, for the

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reason that Weaver had failed to allege that she had submitted a “complete application

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for a first lien loan modification” prior to the foreclosure. (See Order, filed Nov. 1, 2016,

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at 3:13-15.) In her FAC, Weaver now alleges her “complete loan modification package

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was under review” at the time of foreclosure. (See FAC ¶ 37). Without more, Weaver’s
addition of the conclusory term “complete” is insufficient. See Cal. Civ. Code § 2923.6(h)

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United States District Court
Northern District of California

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(providing application is “deemed ‘complete’ when a borrower has supplied the mortgage

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servicer with all documents required by the mortgage servicer within the reasonable

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timeframes specified by the mortgage servicer”); Ashcroft v. Iqbal, 556 U.S. 662, 678-79

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

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support its “legal conclusions”).
In her opposition, Weaver makes reference to various supporting facts,

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specifically, that “Wells Fargo had not denied her . . . application on the ground of

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incompleteness or for any other reason,” had not “asked [her] for additional information at

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the time of the sale,” and had postponed “scheduled foreclosure sales . . . four times

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while the review of her application was pending.” (See Opp. at 8:11-14.) Those facts,

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however, do not appear in the FAC.

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Accordingly, Count II is subject to dismissal.

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Although Wells Fargo seeks dismissal without leave to amend, the Court will again

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afford Weaver an opportunity to amend to cure, if she can do so, the deficiencies noted

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above. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 701 (9th Cir. 1990) (holding

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leave to amend “should be granted if it appears at all possible that the plaintiff can correct

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the defect”) (internal quotation and citation omitted).

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//
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CONCLUSION

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

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and Counts I and II are hereby DISMISSED with leave to amend. Should Weaver wish to

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file a Second Amended Complaint, she shall file such pleading no later than March 13,

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2017.

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

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from March 3, 2017, to April 21, 2017, at 10:30 a.m. A Joint Case Management

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Statement shall be filed no later than April 14, 2017.

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IT IS SO ORDERED.

United States District Court
Northern District of California

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Dated: February 24, 2017
MAXINE M. CHESNEY
United States District Judge

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