Prescott v. BNC Mortgage, Inc. et al

Filing 10

ORDER by Judge Saundra Brown Armstrong, GRANTING 6 Motion to Dismiss. Plaintiff shall file an Amended Complaint within (20) twenty-days from the date of this Order (lrc, COURT STAFF) (Filed on 4/20/2009) Modified on 4/21/2009 (jlm, COURT STAFF).

1 2 3 4 5 6 7 8 9 10 11

MICHAEL J. STEINER (State Bar No. 112079) JOSHUA E. WHITEHAIR (State Bar No. 244900) SEVERSON & WERSON A Professional Corporation One Embarcadero Center, Suite 2600 San Francisco, CA 94111 Telephone: [phone] Facsimile: [phone] Attorneys for Defendants WELLS FARGO BANK, N.A. d/b/a AMERICA'S SERVICING COMPANY, (also sued herein as ASC COMPANY) UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

12 DUKE PRESCOTT, 13 14 vs. Plaintiff,

Case No.: C 09-00805 SBA ORDER GRANTING WELLS FARGO'S MOTION TO DISMISS

15 BNC MORTGAGE, INC., a Delaware corporation; WELLS FARGO BANK, N.A.; 16 AMERICA'S SERVICING COMPANY, also known as ASC COMPANY, an unknown 17 business entity; NDEX WEST, LLC, a Delaware Limited Liability Company; and 18 DOES 1 through 50, inclusive, 19 20 21 22 23 24 25 26 27 28 The Motion of defendants Wells Fargo Bank, N.A. d/b/a America's Servicing Company ("Wells Fargo") for an order dismissing the Complaint of plaintiff Duke Prescott ("Plaintiff"), having been duly noticed and served on all interested parties All arguments, papers and evidence considered and good cause appearing, the Court hereby FINDS: 1. Under California law, Plaintiff cannot challenge the foreclosure of his property Defendants.

since he fails to allege that he has offered or will offer to tender the full amount outstanding on his mortgage loan with Wells Fargo. United States Cold Storage v. Great W. Sav. & Loans Ass'n,
-107725/0110/715544.1

[Proposed] Order Granting Wells Fargo's Motion to Dismiss Case No. C 09-00805 SBA

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

165 Cal.App.3d 1214, 1225, 212 Cal.Rptr. 232 (1985); 2. California Civil Code section 1632 does not apply since Plaintiff's loan was

secured by real property. Id. § 1632(b)(2). Nor do any of the exemptions in subpart (b)(4) apply since Wells Fargo is a national bank Cal.Bus.&Prof.Code § 10133.1(a)(1); Cal.Fin.Code §§ 22050, 22002. 3. As against defendant Wells Fargo, California Financial Code section 4973 is

preempted by the National Bank Act and its implementing regulations. 12 C.F.R. § 7.4008(d)(2)(i)-(viii); see Evans v. Chase Bank USA, N.A., 267 Fed.Appx. 692, 693, 2008 WL 467801, *1 (9th Cir. 2008); 4. The purported violations of Home Ownership and Equity Protection Act, 15

U.S.C. § 1637, the Truth in Lending Act, 15 U.S.C. §§ 1601-1667f, Regulation Z, 12 Code of Federal Regulations, part 226.23(a)(3), and the Federal Trade Commission Act, 15 U.S.C. §§ 4158 are not sufficiently alleged under Federal Rule of Civil Procedure 8(a); 5. Under California law, possession of the original promissory note is not required to

commence or proceed with non-judicial foreclosure. Putkkuri v. ReconTrust Co., 2009 WL 32567, *2 (S.D. Cal. 2009); Candelo v. NDex West, LLC, 2008 WL 5382259, *4 (E.D. Cal. 2008); Neal v. Juarez, 2007 WL 2140640, *8 (S.D. Cal. 2007) (citing R.G. Hamilton Corp. v. Corum, 218 Cal. 92, 97, 21 P.2d 413 (1933); Cal. Trust Co. v. Smead Inv. Co., 6 Cal.App.2d 432, 435, 44 P.2d 624 (1935)); 6. Plaintiff has not alleged any prejudice as a result of the alleged untimely service of

the foreclosure notices. See Knapp v. Doherty, 123 Cal.App.4th 76, 94, 20 Cal.Rptr.3d 1 (2004); 7. No quiet title claim is pleaded since the complaint is not verified. Cal.Civ.P.Code

§ 761.020; see Lewis v. Superior Court, 30 Cal.App.4th 1850, 1866, 37 Cal.Rptr.2d 63 (1994); 8. Plaintiff has not alleged that he made a written demand for a payoff demand

statement. Cal.Civil Code § 2943(a)(2)(H)(5), (b)(1); 9. Under California law, injunctive relief is not an independent cause of action but a

remedy. MaJor v. Miraverde Homeowners Ass'n, Inc., 7 Cal.App.4th 618, 623, 9 Cal.Rptr.2d 237 (1992);
07725/0110/715544.1

-2[Proposed] Order Granting Wells Fargo's Motion to Dismiss Case No. C09-00805 SBA

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

10.

Plaintiff's claim for "Damages" is not actionable since there is no such cause of

action and Plaintiff alleges no statutory basis for the recovery of damages. WHEREFORE, Wells Fargo's Motion to Dismiss is GRANTED WITH LEAVE TO AMEND as to the declaratory relief claim alleging violations of federal law, and claims to set aside/void or cancel the foreclosure notices, quiet title and accounting. The Motion is GRANTED WITHOUT LEAVE TO AMEND as to the declaratory relief alleging violations of California's Civil Code § 1632 and Financial Code § 4970 et seq. and the injunctive relief and damages claims. Plaintiff shall have 20 days from the date of this Order to file an amended complaint. Plaintiff is required to provide a more definite statement of his claim for violations of federal law. Fed.R.Civ.P. 12(e). IT IS SO ORDERED. DATED: 4/17/09 ____________________________________ United States District Court Judge

-307725/0110/715544.1

[Proposed] Order Granting Wells Fargo's Motion to Dismiss Case No. C09-00805 SBA

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
07725/0110/715544.1

CERTIFICATE OF SERVICE I, the undersigned, declare that I am over the age of 18 and am not a party to this action. I am employed in the City of San Francisco, California; my business address is Severson & Werson, One Embarcadero Center, Suite 2600, San Francisco, CA 94111. On the date below I served a copy, with all exhibits, of the following document(s): [PROPOSED] ORDER GRANTING WELLS FARGO'S MOTION TO DISMISS

on all interested parties in said case addressed as follows: James Curtis, Esq. James Curtis & Associates 7121 Magnolia Avenue Riverside, CA 92504 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff DUKE PRESCOTT Edward A. Treder, Esq. BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP 917 S. Village Oaks Drive, Suite 200 Covina, CA 91724 Telephone: [phone] Fax: [phone] Attorneys for Defendant NDExWEST, LLC

(BY MAIL) By placing the envelope for collection and mailing following our ordinary business practices. I am readily familiar with the firm's practice of collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service in San Francisco, California in sealed envelopes with postage fully prepaid. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. I declare that I am employed in the office of a member of the Bar of this Court at whose direction the service was made. This declaration is executed in San Francisco, California, on March 3, 2009. /s/ Marilyn C. Li Marilyn C. Li

-4[Proposed] Order Granting Wells Fargo's Motion to Dismiss Case No. C09-00805 SBA