Nissim v. Wells Fargo Bank, N.A.

Filing 55

ORDER by Judge Claudia WilkenGRANTING WELLS FARGOS 49 MOTION TO DISMISS (ndr, COURT STAFF) (Filed on 4/8/2013)

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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 JACK A. NISSIM, 5 6 7 No. C 12-1201 CW Plaintiff, ORDER GRANTING WELLS FARGO’S MOTION TO DISMISS (Docket No. 49) v. 8 WELLS FARGO BANK, N.A.; FIRST AMERICAN TITLE COMPANY; ATLANTIC BANCORP; and NICHOLAS DUDUM, 9 Defendants. United States District Court For the Northern District of California 10 11 ________________________________/ Plaintiff Jack A. Nissim asserts various mortgage-related 12 claims against Defendant Wells Fargo Bank, N.A.1 13 moves to dismiss Plaintiff’s second amended complaint (2AC). 14 Plaintiff opposes the motion. 15 by the parties, the Court GRANTS Wells Fargo’s motion. 16 17 18 Wells Fargo Having considered the papers filed BACKGROUND The following facts are taken from the 2AC and certain documents of which the Court takes judicial notice.2 19 20 1 21 22 23 24 25 26 27 28 Plaintiff voluntarily dismissed his claims against Defendants Atlantic Bancorp and Nicholas Dudum. Docket No. 43. On January 17, 2013, the Court dismissed Plaintiff’s claims against Defendant First Atlantic Title Company and granted Plaintiff leave to amend to remedy the deficiencies identified by the Court. Docket No. 47. On January 31, 2013, Plaintiff filed his amended pleading, naming only Wells Fargo as a Defendant. Docket No. 48. 2 With its motion and reply, Wells Fargo has asked that the Court take judicial notice of various documents, including documents related to Plaintiff’s mortgage, his prior related state court action and his bankruptcy cases. Plaintiff does not oppose or object to Wells Fargo’s requests and the Court grants them. The Court also takes judicial notice of the dockets of the three bankruptcy cases that Plaintiff has filed in this district. 1 In approximately December 2004, Plaintiff entered into a loan 2 transaction with Wells Fargo for the purchase of property located 3 at 1438 28th Avenue in San Francisco, California. 4 Plaintiff originally sought a loan with a fixed interest rate but 5 was induced to enter a loan agreement with an adjustable interest 6 rate based on promises that he could later refinance the property 7 with a fixed interest rate. 8 early refinancing if he refinanced the property within three 9 years. United States District Court For the Northern District of California 10 Id. 2AC ¶ 12. The loan included a penalty for Id. In approximately December 2005, Plaintiff was assisted by 11 Atlantic Bancorp, a real estate broker, and its representative, 12 Dudum, in investigating loan options to purchase property in New 13 Mexico. 14 Atlantic Bancorp were agents of Wells Fargo and that they could 15 refinance his loan with Wells Fargo to obtain money to purchase 16 the New Mexico property. 17 could not refinance his loan with Wells Fargo because of the early 18 refinancing penalty. 19 an agent of Wells Fargo, it could speak with Wells Fargo about an 20 early refinancing. 21 Atlantic about this any further. 22 Id. at ¶ 13. Dudum represented to Plaintiff that he and Id. Id. Id. Plaintiff told Atlantic that he In response, Atlantic told him that, as Plaintiff did not speak to anyone at Id. “Plaintiff was making regular mortgage payments under his 23 original loan when he began receiving statements with higher 24 payment amounts.” 25 2006, when Plaintiff received his monthly mortgage bill, he “was 26 understandably shocked” to notice that the payment amount had 27 increased and that the “total amount due on the loan was much 28 higher.” 2AC ¶ 34. Id. at ¶ 14. Specifically, in approximately March “At this moment, Plaintiff discovered that 2 1 instead of merely exploring financing options for property in New 2 Mexico, Atlantic Bancorp and Dudum, through Wells Fargo, had 3 actually refinanced Plaintiff’s Property without his knowledge.” 4 Id. 5 current owner of the loan at issue.” Plaintiff alleges that Wells Fargo “is believed to be the 6 Id. at ¶ 7. The “final loan documents were signed and notarized using 7 Plaintiff’s name, but Plaintiff never signed said documents.” 8 at ¶ 27; see also id. at ¶ 15 (“escrow was closed and recorded 9 without Plaintiff’s knowledge or his signatures on any of the Id. United States District Court For the Northern District of California 10 documents that appear to be notarized”). 11 Atlantic Bancorp forged the documents for the refinancing. 12 ¶ 41. 13 Fargo knew the refinance agreement was forged and that it 14 participated in the forgery by authorizing its agent, Atlantic 15 Bancorp, to forge the documents. 16 Fargo “held a phony escrow which closed based on forged documents” 17 and that he “never agreed to the terms of the loan, never saw or 18 signed the loan documents, never showed up for escrow, and never 19 authorized the refinancing of his Property.” 20 Plaintiff alleges that Id. at He also alleges, upon information and belief, that Wells Id. He also alleges that Wells Id. at ¶ 11. Although he alleges that he never signed the loan documents, 21 Plaintiff also alleges that he was “wrongfully induced into” the 22 refinancing agreement. 23 Id. at ¶ 41. The “terms of the new loan were worse than the original 24 loan.” 25 rate on the forged note was worse than the original note.” 26 “The interest [on] the second loan [was] also excessive.” 27 The monthly payments that he “was asked to make under the new loan 28 were . . . less than the monthly interest accumulations.” Id. at ¶ 17. Specifically, the “principal and interest 3 Id. Id. Id. 1 “Paying this amount caused Plaintiff to amass arrears on every 2 payment he made.” 3 the early refinancing clause of his original loan.” 4 Plaintiff alleges that the unfavorable terms of the new loan are 5 “strong evidence that the new loan was forged since no one would 6 refinance into terms worse than their original loan terms.” 7 at ¶ 17. 8 9 Id. Further, he “was penalized for violating Id. at ¶ 16. Id. The “actual terms of the ‘forged note’” were “concealed from and never released to Plaintiff.” Id. at ¶ 18. “Nevertheless, United States District Court For the Northern District of California 10 Plaintiff attempted to arrange . . . terms that would have been 11 acceptable and was unable to do so.” Id. 12 In his first amended complaint (1AC), Plaintiff alleged that, 13 when he realized “that loan refinancing documents had been forged” 14 in 2006, he “brought suit immediately,” asserting the same causes 15 of action as in the instant case. 16 removed all references to his state court case and bankruptcy 17 proceedings from the 2AC. 18 1AC ¶ 25. Plaintiff has On September 27, 2007, Plaintiff filed a complaint in San 19 Francisco Superior Court against World Savings Bank, which is the 20 predecessor in interest to Wells Fargo here, Dudum, Atlantic 21 Bancorp, Cal State 9 Credit Union and others. 22 his complaint, Plaintiff alleged that Dudum and Atlantic Bancorp 23 had first advised him to refinance his loan with World Savings but 24 later advised him to enter into a second mortgage with Cal State 9 25 Credit Union and that it was the loan agreement with the latter 26 that was forged. 27 overcharged him on the first loan, but did not allege that any 28 mortgage agreement with World Savings had been forged. 1RJN, Ex. K. In He also alleged that World Savings had 4 1 On February 20, 2008, Plaintiff filed for bankruptcy in the 2 Bankruptcy Court in the Northern District of California. 3 No. 1, In re Jack Albert Nissin, Pet. No. 08-30265 (N.D. Cal. 4 Bankr. Ct.). 5 Docket On October 1, 2008, the bankruptcy trustee removed the state 6 court action to bankruptcy court. 7 Nissim v. Cal. State 9 Credit Union, Adversary Proceeding No. 08- 8 3115 (N.D. Cal. Bankr. Ct.). 9 1RJN, Ex. K; Docket No. 1, On December 9, 2008, the bankruptcy court granted the United States District Court For the Northern District of California 10 trustee’s petition to abandon the claims that were the subject of 11 the state law action. 12 Pet. No. 08-30265. 13 Docket No. 82, In re Jack Albert Nissin, On December 10, 2008, the bankruptcy trustee filed a notice 14 of dismissal in the removed action, which stated, “[H]aving 15 obtained an order authorizing her to abandon the claims set forth 16 in this adversary proceeding, the trustee hereby dismisses this 17 adversary proceeding without prejudice.” 18 7, Nissim v. Cal. State 9 Credit Union, Adversary Proceeding No. 19 08-3115. 20 1RJN, Ex. M; Docket No. On January 29, 2009, the bankruptcy court granted Plaintiff a 21 discharge. 22 Docket No. 87, In re Jack Albert Nissin, Pet. No. 08-30265. 23 Second Request for Judicial Notice (2RJN), Ex. B;3 On November 1, 2011, NDEX West, as agent for Wells Fargo, the 24 beneficiary of the deed of trust on the 28th Avenue property, 25 recorded a notice of default and election to sell, stating that 26 27 28 3 Wells Fargo appears to have inadvertently reversed Exhibits A and B to its 2RJN. The Court uses the lettering that appears in the request for judicial notice itself. 5 1 Plaintiff was in default of the December 2005 note. 2 for Judicial Notice (1RJN), Ex. H. 3 First Request On December 5, 2011, a substitution of trustee was recorded, 4 substituting NDEX West in place of the original trustee. 5 Ex. I. 1RJN, 6 On January 31, 2012, NDEX West recorded a notice of trustee’s 7 sale, stating that the property would be sold on February 22, 2012 8 at 2:00 p.m. 9 1RJN, Ex. J. Plaintiff initiated this case on February 7, 2012 in San United States District Court For the Northern District of California 10 Francisco Superior Court, naming Wells Fargo as the only 11 Defendant. 12 Docket No. 1. On February 22, 2012, the same day for which the trustee’s 13 sale was set, Plaintiff filed his second bankruptcy petition. 14 Docket No. 1, In re Jack Nissim, Pet. No. 12-30558 (N.D. Cal. 15 Bankr. Ct.). 16 due to Plaintiff’s failure to file various required documents, 17 including his bankruptcy schedules. 18 Nissim, Pet. No. 12-30558. 19 20 On March 9, 2012, this bankruptcy case was dismissed Docket No. 8, In re Jack On March 9, 2012, Wells Fargo removed the instant action to federal court. 21 Docket No. 1. On April 6, 2012, Plaintiff filed his 1AC, adding as 22 Defendants First American, Atlantic Bancorp and Dudum. 23 11. 24 (1) quiet title; (2) reformation of contract; (3) wrongful 25 foreclosure in violation of California Civil Code § 2924, et seq.; 26 (4) slander of title; and (5) equitable indemnity. 27 28 Docket No. The 1AC asserted five claims against all Defendants: On April 20, 2012, Wells Fargo filed its first motion to dismiss the 1AC. Docket No. 17. 6 1 On April 23, 2012, Plaintiff filed his third bankruptcy 2 petition. 3 (N.D. Cal. Bankr. Ct.). 4 Docket No. 1, In re Jack Nissim, Pet. No. 12-31226 On June 14, 2012, the Chapter 7 Trustee filed a report of no 5 distribution in Plaintiff’s third bankruptcy case, certifying that 6 his estate has been fully administered and that there were no 7 assets available for distribution. 8 re Jack Nissim, Pet. No. 12-31226. 9 June 14, 2012 Docket Entry, In On July 13, 2012, the United States Trustee filed a motion United States District Court For the Northern District of California 10 for denial of discharge in Plaintiff’s third bankruptcy case, 11 arguing that a debtor cannot receive a discharge under Chapter 7 12 if the debtor has previously obtained a discharge in a case 13 commenced within eight years of the current case. 14 18, In re Jack Nissim, Pet. No. 12-31226. 15 Bankruptcy Court granted the United States Trustee’s unopposed 16 motion and denied Plaintiff’s discharge. 17 Jack Nissim, Pet. No. 12-31226. Docket Nos. 17, On August 7, 2012, the Docket No. 24, In re The bankruptcy case remains open. 18 On November 28, 2012, First American filed a motion to 19 dismiss the 1AC, and Wells Fargo filed a second motion to dismiss 20 the 1AC. 21 Docket Nos. 37 and 39. On December 12, 2012, Plaintiff filed a notice of voluntary 22 dismissal of the claims against Atlantic Bancorp and Dudum, which 23 this Court granted on December 13, 2012. 24 45. 25 See Docket Nos. 43 and On January 17, 2013, the Court granted the motions to dismiss 26 filed by First American and Wells Fargo and granted Plaintiff 27 leave to amend. Docket No. 47. 28 7 1 On January 31, 2013, Plaintiff filed his 2AC. The 2AC 2 asserts three claims against Wells Fargo: (1) quiet title; 3 (2) wrongful foreclosure in violation of California Civil Code 4 § 2924, et seq.; and (3) slander of title. 5 his “Property has not been sold yet and he is still in possession 6 of the Property.” 2AC ¶ 22. 7 8 9 Plaintiff alleges that LEGAL STANDARD A complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. United States District Court For the Northern District of California 10 Civ. P. 8(a). 11 state a claim, dismissal is appropriate only when the complaint 12 does not give the defendant fair notice of a legally cognizable 13 claim and the grounds on which it rests. 14 Twombly, 550 U.S. 544, 555 (2007). 15 complaint is sufficient to state a claim, the court will take all 16 material allegations as true and construe them in the light most 17 favorable to the plaintiff. 18 896, 898 (9th Cir. 1986). 19 to legal conclusions; “threadbare recitals of the elements of a 20 cause of action, supported by mere conclusory statements,” are not 21 taken as true. 22 (citing Twombly, 550 U.S. at 555). On a motion under Rule 12(b)(6) for failure to Bell Atl. Corp. v. In considering whether the NL Indus., Inc. v. Kaplan, 792 F.2d However, this principle is inapplicable Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 23 When granting a motion to dismiss, the court is generally 24 required to grant the plaintiff leave to amend, even if no request 25 to amend the pleading was made, unless amendment would be futile. 26 Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 27 F.2d 242, 246-47 (9th Cir. 1990). 28 amendment would be futile, the court examines whether the In determining whether 8 1 complaint could be amended to cure the defect requiring dismissal 2 “without contradicting any of the allegations of [the] original 3 complaint.” 4 Cir. 1990). Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th 5 DISCUSSION 6 Wells Fargo seeks to dismiss Plaintiff’s 2AC in its entirety. 7 Wells Fargo argues that Plaintiff lacks standing to assert the 8 claims contained in the 2AC because he is currently in bankruptcy, 9 that his allegations are not plausible on their face and that he United States District Court For the Northern District of California 10 is estopped from bringing these claims due to his failure to 11 schedule the claims in his first or third bankruptcy. 12 also contends that Plaintiff has not sufficiently plead the 13 elements of any of his causes of action. 14 I. 15 Wells Fargo Standing “Upon a declaration of bankruptcy, all of a petitioner’s 16 property becomes the property of the bankruptcy estate,” including 17 “‘all legal or equitable interests of the debtor in property,’ 18 which has been interpreted to include causes of action.” 19 v. Wells Fargo Bank, N.A., 2011 U.S. Dist. LEXIS 75429, at *7-8 20 (N.D. Cal.) (citing, among other authority, 11 U.S.C. § 541(a); 21 Sierra Switchboard Co. v. Westinghouse Elec. Corp., 789 F.2d 705, 22 707 (9th Cir. 1986)). 23 standing for any causes of action and the estate becomes the only 24 real party in interest unless the bankruptcy trustee abandons the 25 claims.” 26 Cir. 2002); In re Pace, 146 B.R. 562, 565-66 (9th Cir. 1992)). 27 The petitioner may re-gain standing if the bankruptcy trustee 28 abandons the claims. Flowers “Accordingly, a bankruptcy petitioner loses Id. at *8 (citing In re Lopez, 283 B.R. 22, 28-32 (9th See, e.g., Rowland v. Novus Fin. Corp., 949 9 1 F. Supp. 1447, 1454 (D. Haw. 1996). 2 estate can be abandoned by three methods: (1) after notice and 3 hearing, the trustee may unilaterally abandon property that is 4 ‘burdensome . . . or . . . of inconsequential value’ (11 U.S.C. 5 § 554(a)); (2) after notice and hearing, the court may order the 6 trustee to abandon such property (11 U.S.C. § 554(b)); (3) any 7 property which has been scheduled, but which has not been 8 administered by the trustee at the time of closing of a case, is 9 abandoned by operation of law. (11 U.S.C. § 554(c).)” United States District Court For the Northern District of California 10 11 “Property of a bankruptcy Cloud v. Northrop Grumman Corp., 67 Cal. App. 4th 995, 1003 (1998). Plaintiff does not dispute that the ongoing bankruptcy case 12 divests him of standing to assert these claims. 13 argues that, if he amends his bankruptcy filings to add these 14 claims to his schedules, “there is no reason to believe that this 15 case will not be abandoned by the Trustee.” Opp. at 4. However, 16 there has not yet been any abandonment of these claims. Thus, it 17 is not disputed that, at the present time, Plaintiff does not have 18 standing to prosecute these claims. 19 Instead, he Plaintiff responds that, “it would be improper to dismiss 20 Plaintiff for lack of standing, because an amendment will fix any 21 standing issue.” 22 proposition that dismissal of a complaint without leave to amend 23 is improper, absent unusual circumstances, unless it is clear that 24 it could not be saved by any amendment. 25 Chen, 80 F.3d 1293, 1296 (9th Cir. 1996)). 26 of his complaint could remedy this standing deficiency. 27 extent that Plaintiff argues that amendment of the schedules in 28 his bankruptcy case could save the instant case, this doctrine is Id. Plaintiff cites a case that stands for the 10 Id. (citing Chang v. However, no amendment To the inapplicable, because it refers to amendment of the pleadings in 2 the instant case. 3 alone would not “fix any standing issue.” 4 would also have to abandon the claims but might not do so. 5 Finally, it is not clear that Plaintiff will be permitted to amend 6 his bankruptcy filings to schedule these claims. 7 court approval is required for amendment of a bankruptcy petition 8 or schedule before the case is closed and amendment is “liberally 9 allowed,” the bankruptcy court may deny leave to amend in certain 10 United States District Court For the Northern District of California 1 circumstances, including upon “a showing of a debtor’s bad faith 11 or of prejudice to creditors.” 12 (9th Cir. 1998) (internal quotation marks and citations omitted). 13 Further, amendment of his bankruptcy schedules The bankruptcy trustee Although no In re Michael, 163 F.3d 526, 529 Accordingly, the Court GRANTS Wells Fargo’s motion to dismiss 14 this case for lack of standing. 15 Plaintiff’s case in its entirety for lack of standing, the Court 16 need not reach Wells Fargo’s alternative arguments. 17 the Court addresses certain other arguments made by Wells Fargo. 18 II. 19 Because the Court dismisses Nevertheless, Quiet Title “The purpose of a quiet title action is to finally settle and 20 determine, as between the parties, all conflicting claims to the 21 property in controversy, and to decree to each such interest or 22 estate therein as he may be entitled to.” 23 Chase Bank, N.A., 732 F. Supp. 2d 952, 974 (N.D. Cal. 2010) 24 (internal quotation marks and citations omitted). 25 action must include in a verified complaint: “(1) a description of 26 the property in question; (2) the basis for plaintiff’s title; and 27 (3) the adverse claims to plaintiff’s title.” 28 11 Rosenfeld v. JPMorgan A quiet title Ananiev v. Aurora 1 Loan Servs., LLC, 2012 U.S. Dist. LEXIS 132489, at *9-10 (N.D. 2 Cal.); Cal. Civ. Proc. Code § 760.020. 3 “In order to satisfy the second requirement, plaintiff must 4 allege that he has discharged his debt, regardless to whom it is 5 owed.” 6 642 F. Supp. 2d 1048, 1057 (N.D. Cal. 2009)); see also Miller v. 7 Provost, 26 Cal. App. 4th 1703, 1707 (1994) (“This rule was based 8 on the equitable principle that a mortgagor of real property 9 cannot, without paying his debt, quiet his title against the Id. (citing Kelley v. Mort. Elec. Registration Sys., Inc., United States District Court For the Northern District of California 10 mortgagee.”). 11 valid and viable offer of tender.” 12 N.A., 2012 U.S. Dist. LEXIS 168198, at *4-5 (N.D. Cal.) (citing 13 Chancellor v. OneWest Bank, 2012 U.S. Dist. LEXIS 125249, at *10 14 (N.D. Cal.)). 15 “That is, to state a claim, Plaintiff must allege a Sowinski v. Wells Fargo Bank, Wells Fargo argues that Plaintiff has failed to state a claim 16 to quiet title because he has failed to allege tender 17 sufficiently. 18 sufficient because he “is only seeking that the refinance 19 agreement be invalidated and the original agreement be restored” 20 and he “has offered to tender the reinstatement amount to bring 21 the original loan agreement current.” 22 ¶ 21 (“If the 2005 refinance agreement is deemed void, and the 23 original 2004 agreement becomes the operative Deed of Trust, 24 Plaintiff hereby will and does tender each and every monthly 25 payment under the original loan, including any fees and interests 26 incurred due to any late payments.”). 27 28 Plaintiff responds that his tender allegation is Opp. at 6-7; see also 2AC Plaintiff made a similar argument when opposing the motions to dismiss his 1AC. In the prior order resolving those motions, 12 1 the Court noted that, in his quiet title claim as plead in the 2 1AC, Plaintiff sought to remove all clouds from his title and 3 requested a determination that he holds title to the property, 4 free from all claims of Defendants, apparently including the 5 original promissory note and deed of trust. 6 (“Plaintiff seeks to quiet title against the claims of Defendants, 7 and each of them. . . . Defendants and each of them, has no valid, 8 lawful, or equitable title, estate, lien or interest in the 9 Property. See 1AC ¶¶ 36, 37 Defendants do not . . . own or have a legal interest in United States District Court For the Northern District of California 10 the pertinent notes secured by the corresponding deeds of 11 trust.”). 12 that he had paid the full amount of the original loan, Plaintiff 13 has not stated a claim to quiet title. The Court found that, as a result, absent an allegation 14 In his 2AC, in addition to requesting that “title be restored 15 to him under the same terms of the original Deed of Trust executed 16 between Plaintiff and Defendant on or around December 2004,” 17 Plaintiff also continues to demand “a judgment determining that 18 the title claims by Defendants to Plaintiff’s Property are without 19 any right whatever and such Defendants have no right, title, 20 estate, lien, or interest in the above-described property or any 21 part thereof.” 22 still requests that title be quieted in his favor free from all 23 claims of Wells Fargo, including those rights under the original 24 agreement. 25 the original loan, Plaintiff has not remedied the deficiencies as 26 to his quiet title claim. 27 28 2AC ¶ 28 & Prayer for Relief ¶ 8. Thus, Plaintiff Thus, absent an offer of tender of the full amount of To the extent that Plaintiff contends that, “under the Civil Code,” he is required to tender only the amount required to 13 1 reinstate his original loan and not the full amount of 2 indebtedness, Plaintiff’s arguments are unavailing. 3 appears to base this argument on provisions in California Civil 4 Code section 2924c that allow a mortgagor to cure a default and 5 reinstate a mortgage by paying the amounts in default and costs 6 and expenses incurred in enforcing the obligation within a 7 particular time period. 8 only that the original agreement be reinstated; he also seeks a 9 determination that Wells Fargo has no right, title or interest in United States District Court For the Northern District of California 10 11 Plaintiff However, here, Plaintiff does not demand the property whatsoever. Accordingly, Wells Fargo’s motion to dismiss Plaintiff’s 12 quiet title claim is granted. 13 opportunity to remedy the deficiencies in his claim and was unable 14 to do so, dismissal is with prejudice. 15 III. Wrongful Foreclosure 16 Because Plaintiff was given a prior Plaintiff alleges that Wells Fargo’s conduct violated 17 California Civil Code section 2924, because the notice of default 18 did not specify the nature of the breach actually known to Wells 19 Fargo or an accurate amount of arrears due to its inclusion of 20 penalties and fees related to the forged refinancing agreement. 21 Plaintiff alleges that, as a result of the statutory violations, 22 Wells Fargo should be precluded from foreclosing on his property 23 and selling it in a trustee’s sale. 24 that Wells Fargo’s actions have caused him “substantial injury” 25 and that he is entitled to recover actual damages based on, among 26 other things, “a loss of reputation and goodwill, destruction of 27 credit, severe emotional distress, loss of appetite, frustration, 28 14 2AC ¶ 36. He also alleges 1 fear, anger, helplessness, nervousness, anxiety, sleeplessness, 2 sadness, and depression.” 3 Id. at ¶ 37. In the order granting the earlier motions to dismiss, the 4 Court noted, “Under California law, a ‘lender or foreclosure 5 trustee may only be liable to the mortgagor or trustor for 6 wrongful foreclosure if the property was wrongfully or illegally 7 sold under a power of sale contained in a mortgage or deed of 8 trust.’” 9 Wells Fargo Bank, N.A., 2012 U.S. Dist. LEXIS 55977, at *9 (N.D. Docket No. 47, 19 (citing, among others, Permito v. United States District Court For the Northern District of California 10 Cal.) (“The first element for a wrongful foreclosure claim is that 11 the property was illegally or fraudulently sold under a power of 12 sale in a deed of trust.”); Chancellor v. OneWest Bank, 2012 U.S. 13 Dist. LEXIS 71992, at *24-26 (N.D. Cal.) (dismissing without 14 prejudice a wrongful foreclosure claim as “premature” where the 15 plaintiff alleged that a foreclosure sale was scheduled but not 16 that it had already occurred)). 17 trustee’s sale has not yet taken place, Plaintiff’s claim for 18 damages as a result of the wrongful foreclosure is premature.” 19 Id. at 19-20. 20 The Court stated that, “if a Plaintiff has now clarified that a trustee’s sale has not yet 21 taken place. 22 wrongful foreclosure in order to enjoin the foreclosure sale. 23 However, as in his 1AC, in addition to seeking to stop the 24 foreclosure process, Plaintiff alleges that he has suffered 25 “substantial injury” and requests that he be awarded “actual 26 damages” that he suffered from the purportedly wrongful 27 foreclosure. 28 dismiss Plaintiff’s claim for damages as a result of a wrongful He argues that he can nevertheless bring a claim for 2AC ¶ 37. Accordingly, Wells Fargo’s motion to 15 1 foreclosure that has not taken place is granted, without leave to 2 amend. 3 4 CONCLUSION For the reasons set forth above, the Court GRANTS Wells 5 Fargo’s motion to dismiss (Docket No. 49). 6 prejudice to refiling if Plaintiff schedules his claims and they 7 are abandoned by the bankruptcy trustee, except that Plaintiff may 8 not renew the quiet title claim and, prior to any foreclosure 9 sale, may not renew his claim for damages for wrongful United States District Court For the Northern District of California 10 11 12 13 Dismissal is without foreclosure. The Clerk shall enter judgment and close the file. Defendants shall recover their costs from Plaintiff. IT IS SO ORDERED. 14 15 16 Dated: 4/8/2013 CLAUDIA WILKEN United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 16

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