Ortiz v. Wells Fargo Bank, National Association, Successor By Merger to Wachovia et al

Filing 18

ORDER GRANTING DEFENDANTS WELLS FARGO AND GOLDEN WEST SAVINGS ASSOCIATION SERVICE CO.'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT by Judge Phyllis J. Hamilton granting 5 Motion to Dismiss (Attachments: # 1 Certificate/Proof of Service) (nah, COURT STAFF) (Filed on 10/14/2011)

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 NORTHERN DISTRICT OF CALIFORNIA – OAKLAND DIVISION 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Case No.: 4:11-CV-02401-PJH JANET ORTIZ, [Assigned to the Hon. Phyllis J. Hamilton in Courtroom 3] Plaintiff, vs. WELLS FARGO BANK, NATIONAL ASSOCIATION, SUCCESSOR BY MERGER TO WACHOVIA FKA AS WORLD SAVINGS BANK, FSB; GOLDEN WEST SAVINGS ASSOCIATION SERVICE CO.; WACHOVIA BANK NA/AMERICAN MORTGAGE NETWORK, INC.; WACHOVIA MORTGAGE LOAN TRUST LLC; US BANK NATIONAL ASSOCIATION AS TRUSTEE FOR WACHOVIA MORTGAGE LOAN TRUST, SERIES 1006-AMN1; AND DOES 1 THROUGH 100, INCLUSIVE; ORDER GRANTING DEFENDANTS WELLS FARGO AND GOLDEN WEST SAVINGS ASSOCIATION SERVICE CO.’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT Date: Time: Ctrm: October 5, 2011 9:00 a.m. 3 Defendants. The Motion to Dismiss of defendant Wachovia Mortgage, a division of Wells Fargo 25 Bank, N.A., formerly known as World Savings Bank, FSB and Wachovia Mortgage, FSB, as 26 successor in interest to American Mortgage Network, Inc. (“Wells Fargo”) (erroneously sued as 27 “Wells Fargo Bank, National Association, successor by merger to Wachovia fka as World 28 Savings Bank, FSB;” “Wachovia Bank NA/American Mortgage Network, Inc.;” “Wachovia 95451/000926/00208273-2 1 CASE NO.: 4:11-cv-02401-PJH ORDER RE: MOTION TO DISMISS COMPLAINT 1 Mortgage Loan Trust LLC”) and Golden West Savings Association Service Co. (collectively 2 “Defendants”) came on regularly for hearing before the Honorable Phyllis J. Hamilton, Judge, 3 presiding, on October 5, 2011 at 9:00 a.m. in Courtroom 3 of the above-captioned Court. 4 5 The Court, having read and considered the motion, the accompanying request for judicial notice and for good cause appearing, finds as follows: 6 (1) Plaintiff fails to state a claim for Lack of Standing to Foreclose (first) because: (i) 7 plaintiff has failed to allege a tender of the amount borrowed to set aside a Deed of Trust; (ii) 8 plaintiff fails to plead facts sufficient to constitute a claim for relief; and (iii) this state law claim 9 is preempted by 12 Code of Federal Regulations § 560.2 (regulatory codification of preemption of 10 the Home Owners’ Loan Act of 1933 (“HOLA”)), as an interference with the federal savings 11 bank’s lending operations; 12 (2) Plaintiff fails to state a claim for Violation of California Business & Professions 13 Code § 17200 (Fraudulently Procured Documents) (second) because: (i) plaintiff has failed to 14 allege a tender of the amount borrowed to set aside a Deed of Trust; (ii) plaintiff fails to plead 15 facts sufficient to constitute a claim for relief; (iii) plaintiff fails to properly plead the required 16 elements with the required specificity; and (iv) the claim as plead is preempted by the HOLA; 17 (3) Plaintiff fails to state a claim for Unfair Business Practices, California Business 18 and Professions Code § 17200 (Fairness Doctrine) (third) because: (i) plaintiff has failed to 19 allege a tender of the amount borrowed to set aside a Deed of Trust; (ii) plaintiff fails to plead 20 facts sufficient to constitute a claim for relief; (iv) plaintiff fails to properly plead the required 21 elements with the required specificity; and (v) the claim as plead is preempted by the HOLA; 22 (4) Plaintiff fails to state a claim for Quiet Title because: (i) plaintiff has not alleged 23 tender to satisfy the underlying debt; (ii) plaintiff fails to plead facts sufficient to constitute a 24 claim for relief; and (iii) the claim is preempted by the HOLA. 25 /// 26 /// 27 /// 28 /// 95451/000926/00208273-2 2 CASE NO.: 4:11-cv-02401-PJH ORDER RE: MOTION TO DISMISS COMPLAINT 1 IT IS HEREBY ORDERED: 2 1. Defendants’ request for judicial notice is granted; 3 2. Defendants’ motion to dismiss is granted with prejudice as to the first and fourth 4 5 claims; 3. Defendants’ motion to dismiss is granted with prejudice as to the second and third 6 causes of action to the extent that the allegations are based on claims preempted by 7 HOLA (claims relating to imposition of requirements on federal savings banks 8 regarding loan-related fees, disclosure and advertising, and processing, origination, 9 and servicing mortgages). Otherwise, the motion is granted with leave to amend to 10 allege facts sufficient to support the statutory elements of a claim under Business 11 & Professions Code § 17200 (the identification of some business practice that is 12 forbidden by law; and the “who, what, where, and when” of any allegedly 13 fraudulent conduct). 14 15 4. The amended complaint shall be filed within twenty-eight (28) days of October 5, 2011. 16 17 Dated: October 14, 2011 HONORABLE PHYLLIS J. HAMILTON UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 95451/000926/00208273-2 3 CASE NO.: 4:11-cv-02401-PJH ORDER RE: MOTION TO DISMISS COMPLAINT 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

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