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

Filing 64

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S SECOND AMENDED COMPLAINT. To the extent Wells Fargo seeks dismissal of Count I, the motion is granted. To the extent Wells Fargo seeks dismissal of Count II, the motion is denied. Signed by Judge Maxine M. Chesney on 05/31/17. (mmclc2, COURT STAFF) (Filed on 5/31/2017)

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1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 ANNIE G. WEAVER, 8 Plaintiff, v. 9 10 WELLS FARGO BANK, N.A., Defendant. United States District Court Northern District of California 11 Case No. 16-cv-04907-MMC ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S SECOND AMENDED COMPLAINT Re: Dkt. No. 52 12 13 Before the Court is the “Motion to Dismiss the Second Amended Complaint,” filed 14 March 27, 2017, by defendant Wells Fargo Bank, N.A. (“Wells Fargo”).1 Plaintiff Annie G. 15 Weaver (“Weaver”) has filed opposition, to which Wells Fargo has replied. Having read 16 and considered the papers filed in support of and in opposition to the motion, the Court 17 rules as follows.2 18 By order filed November 1, 2016, the Court dismissed Weaver’s initial complaint in 19 its entirety and granted Weaver leave to amend to allege sufficient facts to support two of 20 her four causes of action. On November 18, 2016, Weaver filed her First Amended 21 Complaint (“FAC”), which the Court, by order filed February 24, 2017, dismissed in its 22 entirety, again granting Weaver leave to amend to allege sufficient facts to support her 23 two remaining causes of action. Thereafter, on March 13, 2017, Weaver filed her Second 24 Amended Complaint (“SAC”). By the instant motion, Wells Fargo argues Weaver has 25 26 27 1 The motion is also filed on behalf of Bank of New York Mellon (“BNYM”). The operative complaint, however, includes no claims against BNYM. 2 28 By order filed May 9, 2017, the Court took the matter under submission. 1 failed to cure the deficiencies previously identified by the Court. The Court addresses 2 each cause of action in turn. 3 A. Count I 4 In Count I of the SAC, titled “Violation of Cal. Fair Employment and Housing Act,” 5 Weaver’s claim is based on the theory that, in 2007, “Wells Fargo defendants 6 deliberately, fraudulently and maliciously placed [Weaver], a black woman living in 7 Oakland, in a high-cost subprime loan, precisely because she is a member of a minority 8 group Wells Fargo targeted for subprime ‘ghetto’ loans.” (See SAC ¶ 21.) The Court 9 previously dismissed the claim as pleaded in Weaver’s FAC for two reasons: (1) Weaver’s failure to allege facts “to support tolling of the statute of limitations,” (see Order, 11 United States District Court Northern District of California 10 filed Feb. 24, 2017, at 2:14-15),3 and (2) Weaver’s failure to include “allegations sufficient 12 to support an inference of discrimination” (see id. at 2:20-21). 13 As to tolling, Weaver previously alleged she “did not learn that Wells Fargo’s 14 discriminatory actions constituted a violation of her civil rights and property rights until her 15 daughter hired a forensic mortgage loan auditor and lawyer earlier this year” (see FAC 16 ¶ 33),4 an allegation which, as the Court noted in its prior order, did “not suffice to support 17 tolling” (see Order, filed Feb. 24, 2017, at 2:14-15). In the SAC, Weaver has added an 18 allegation that she did not question the legality of Wells Fargo’s conduct until February 19 11, 2013, the date of the foreclosure sale on which Count II is based. That date, 20 however, is beyond the two-year limitations period, and Weaver again has not pleaded 21 “‘facts to show . . . [an] inability to have made earlier discovery despite reasonable 22 diligence,’” a failure the Court specifically identified in its prior order. (See id. at 2:17-19 23 (quoting Fox v. Ethicon Endo-Surgery, Inc., 35 Cal. 4th 797, 807-08 (2005) (internal 24 quotation and citation omitted)).) Nor has Weaver explained why she waited until “2015,” 25 more than two years after the date of her initial suspicion, to “hire[] a forensic mortgage 26 3 27 There is no dispute that the applicable statute of limitations is two years. 4 28 Weaver’s initial complaint was filed June 13, 2016, and, as noted above, her FAC was filed November 18, 2016. 2 1 loan auditor” (see SAC ¶ 34), let alone what information she learned from the auditor as 2 to her discrimination claim that she could not have discovered earlier despite reasonable 3 diligence. 4 Moreover, even if Weaver had cured the above-discussed deficiency, her claim 5 would fail. In support of her allegation that she was discriminatorily placed in a predatory 6 loan, Weaver again relies on allegations that Wells Fargo, in making such loans, targeted 7 minorities. (See SAC at 4:6-5:5, ¶¶ 21-25.) As previously noted by the Court, however, 8 the lender with whom Weaver alleges she negotiated the subject loan is not Wells Fargo, 9 but World Savings Bank FSP, a “predecessor-in-interest.” (See id. at 3:2-10, id. ¶¶ 4-8, 23.) The allegations Weaver has added to the SAC have not cured that deficiency. 11 United States District Court Northern District of California 10 Weaver’s allegation that Wells Fargo “succeeded to the assets (and the liabilities) of 12 World Savings” (see id. ¶ 6) is unavailing in the absence of facts showing World Savings 13 discriminated against her prior to such succession. To the extent Weaver relies on the 14 conduct of Wells Fargo itself, her allegations that said defendant refused to honor World 15 Savings’ promise to allow her to “refinance” (see id. ¶¶ 23, 26) and foreclosed while her 16 loan modification application “was under review” (see id. ¶¶ 27-28) do not, irrespective of 17 the alleged illegality of those actions, suffice to support her claim of discrimination. 18 Accordingly, Count I is again subject to dismissal, and, as Weaver has not 19 identified any additional facts she could allege to cure the above-discussed deficiencies, 20 such dismissal will be without further leave to amend. 21 B. Count II 22 In Count II of the SAC, titled “Violation of Cal. Civil Code Sections 2923.6(c), (d) 23 and (e),” Weaver’s claim is based on the theory that “Wells Fargo sold [her] home in 24 foreclosure without any advance notice to her” while her “complete loan modification 25 package was under review.” (See SAC ¶ 38.) The Court previously dismissed the count 26 as pleaded in the FAC, for the reason that Weaver failed to include facts to support her 27 conclusory allegation that her loan modification package was “complete” at the time of 28 3 1 foreclosure. (See Order, filed Feb. 24, 2017, at 3:8-10.)5 In the SAC, Weaver now 2 pleads that, as of the time of the foreclosure sale, Wells Fargo “had not asked [her] to 3 provide additional information for its review nor did it deny the application on the ground 4 that it was incomplete or for any other reason,” that Wells Fargo had “postponed the 5 foreclosure sale of [her] property four times during the negotiations,” and that when she 6 asked Wells Fargo why her home was sold in foreclosure despite her pending 7 application, “Wells Fargo told her only that the employee reviewing the application had 8 been fired the day before the sale.” (See SAC ¶ 38.) Weaver’s new factual allegations 9 are sufficient to support an inference that Wells Fargo, at the time of the foreclosure sale, considered Weaver’s application complete. See Cal. Civ. Code § 2923.6(h) (providing 11 United States District Court Northern District of California 10 application is “deemed ‘complete’ when a borrower has supplied the mortgage servicer 12 with all documents required by the mortgage servicer within the reasonable timeframes 13 specified by the mortgage servicer”). 14 Accordingly, Count II is not subject to dismissal. CONCLUSION 15 16 17 For the reasons stated above, Wells Fargo’s motion to dismiss is hereby GRANTED in part and DENIED in part as follows: 18 1. To the extent Wells Fargo seeks dismissal of Count I, the motion is GRANTED. 19 2. To the extent Wells Fargo seeks dismissal of Count II, the motion is DENIED. 20 IT IS SO ORDERED. 21 Dated: May 31, 2017 MAXINE M. CHESNEY United States District Judge 22 23 24 25 26 27 28 5 Although not raised by Wells Fargo, either in the instant motion or earlier, the Court notes that Count II may be barred by the applicable statute of limitations, which, in this instance, appears to be three years. See Cal. Civ. Proc. Code § 338(a) (providing three-year statute of limitations for “[a]n action upon a liability created by statute, other than a penalty or forfeiture”); see, e.g., Gonzalez ex re. Estate of Perez v. JP Morgan Chase Bank, N.A., No. C-14-2558 EMC, 2014 WL 5462550, at *4 (N.D. Cal. Oct. 28, 2014) (finding three-year statute of limitations applicable to claim alleging violation of Cal. Civ. Code § 2923.5). 4

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