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

Filing 29

ORDER by Judge Yvonne Gonzalez Rogers dismissing with Leave to Amend 7 Motion to Dismiss (fs, COURT STAFF) (Filed on 11/26/2012)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 8 9 SUSAN AGUIAR and ROBERTO AGUIAR, 10 United States District Court Northern District of California 11 12 13 14 15 Plaintiffs, vs. Case No.: 12-CV-03653 YGR ORDER GRANTING MOTION OF DEFENDANTS WELLS FARGO BANK, N.A. AND REGIONAL SERVICE CORPORATION TO DISMISS WITH LEAVE TO AMEND WELLS FARGO BANK, N.A. and REGIONAL SERVICE CORPORATION, Defendants. Plaintiffs Susan and Roberto Aguiar filed a Verified Complaint for Equitable Relief to Set 16 Aside Trustee Sale and Damages against Defendants Wells Fargo Bank, N.A. (“Wells Fargo”) and 17 Regional Service Corporation (“Regional Service”) (collectively “Defendants”). Plaintiffs allege 18 three claims: (1) Wrongful Trustee Sale against both Defendants; (2) Quiet Title against Wells 19 Fargo; and (3) violation of the Federal Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. 20 §§ 1692 et seq. against both Defendants. Fundamentally, they allege that Wells Fargo violated the 21 National Housing Act (“NHA”), 12 U.S.C. §§ 1701 et seq. because it did not meet with Plaintiffs 22 in-person to discuss alternatives to foreclosure or secure the approval of the Secretary of the 23 Department of Housing and Urban Development prior to initiating foreclosure proceedings. 24 Plaintiffs claim further that both Defendants violated the FDCPA because Regional Service failed 25 to provide Plaintiffs with a Debt Validation Notice. 26 Wells Fargo has filed a Motion to Dismiss all three claims alleged in the Complaint on the 27 grounds that judicially noticeable documents demonstrate that Wells Fargo had the right to conduct 28 a non-judicial foreclosure and complied with the statutory requirements for non-judicial 1 fore eclosures; the NHA does not apply to Plaintiffs’ mortgage or create a pri e s o r ivate right of action; and f d 2 Wel Fargo is exempt from the FDCPA (See Dkt. No. 7.) Defendant Reg lls e m A. gional Servic ces 3 Corp poration file a joinder of Wells Far ed o rgo’s motion (See Dkt. No. 16.) n. Having carefully con c nsidered the papers subm mitted and th pleadings in this actio for the he on, 4 5 reas sons set forth below, the Court hereb GRANTS t Motion to Dismiss WITH LEAVE TO h by the o E 6 AME .1 END 7 I. In Decem mber 2010, Plaintiff Rob P berto Aguiar who is Pla r, aintiffs’ sole source of in ncome, was 8 9 BACKG GROUND serio ously injured at work. (Complaint ¶ 9.) He had back surger in Septem d d ry mber 2011 bu was ut unab to return to work unt March 2012. (Id.) Hi claim for worker’s compensation insurance ble n til is 11 United States District Court Northern District of California 10 was approved, but has not yet received money for th claim. (Id While M Aguiar w unable to b y m he d.) Mr. was o 12 wor a notice of default and a notice of trustee’s sa were filed and three weeks befor Mr. rk, o d f ale d, re 13 Agu returned to work, De uiar d efendants sold Plaintiffs ’ home in a t trustee’s sale. (Id.) 14 A. NONJUDICIA FORECLO AL OSURE PROC CEEDINGS 15 On Marc 30, 2006, Plaintiffs ex ch xecuted an A Adjustable R Note (“N Rate Note”) in the amount of e 16 $840 0,000, secur by a Deed of Trust ag red gainst real p roperty loca at 50 Ra ated anch Drive, N Novato, 17 Cali ifornia (the “Property”), in favor of Wells Fargo predecess in interes World Sa “ W o’s sor st, avings Bank, 18 FSB (Id. ¶¶ 1, 3, 5.) B. 19 fs o n n arch 7, 2011, Plaintiff defaulted on their loan payment in November 2010. (Id. ¶ 8.) On Ma 20 Reg gional Servic filed a no ces otice of defau which w recorded with the Ma County Recorder’s ult, was arin 21 Offi ice. (RJN, Ex. F). A no E otice of truste sale was subsequent recorded on June 8, 2 ee’s s tly d 2011. (RJN, 22 Ex. G). 2 er heir laintiffs filed a Chapter 13 Bankrupt Petition, d tcy In June 2011, in orde to save th home, Pl 23 24 Case No. 11-124 e 441-AJ. (Pls.’ Opp’n 7.) As part of a settlemen in the bank f nt kruptcy case Plaintiffs e, 25 agre to pay an prepetitio amounts owing2 over a period of s eed ny on o several years and pay $5 each s, 500 26 1 27 Pur rsuant to Fede Rule of Civil Procedu 78(b) and Civil Local R 7-1(b), th Court finds this motion eral C ure Rule he appr ropriate for de ecision withou oral argum ut ment. 2 28 Ac ccording to the March 2011 Notice of Default, the am e 1 D mount owing w $20,629. as of March 4, 2011. was .36 (See RJN, Ex. F.) e ) 2 1 mon nth. (Id.) Pl laintiffs were able to mak the July 2 e ke 2011 paymen in an amo nt ount of $390 04.00 but 2 coul not make further paym ld ments. In Novem mber 2011, Wells Fargo successfully moved to have the aut W o y tomatic stay lifted, 3 4 whic was lifted in January 2012. (Pls’ RJN, Ex. B On Febru ch d B.) uary 21, 2012, a Trustee’s Sale was 5 held at which Wells Fargo purchased th Property a the highes bidder. (R d W p he as st RJN, Ex. H a 2.) “Wells at s 6 Farg filed an unlawful deta go u ainer compla against p aint plaintiffs and took a defa d fault, default judgment, 7 and obtained a writ of posse w ession pursua to the Ju ant udgment.” (C Complaint ¶ 9.) Plaintif moved to ffs 8 vaca the defau on the bas that they were never served but th motion was denied. (Id.) A ate ult sis heir 9 stay of eviction was schedul to end on June 18, 20 y led n 012. (Id.) B. 11 United States District Court Northern District of California 10 PROCEDURA BACKGRO AL OUND On June 18, 2012, Plaintiffs filed this action in the Supe d n erior Court fo the Count of Marin. or ty 12 Plaintiffs moved for a tempo d orary restraining order to enjoin Def o fendants from evicting P m Plaintiffs 13 from the Proper m rty. (See Not of Remo tice oval, Ex. B.) A tempora restrainin order was issued ) ary ng s 14 enjo oining Defen ndants from evicting Plai e intiffs. (Id.) A hearing on a prelimi ) inary injunct tion was 15 sche eduled in Su uperior Court for July 18, 2012. (Id.) On July 12 2012, Def t ) 2, fendants rem moved the 16 actio to this Co on ourt. It appe that subs ears sequent to re emoval, Def fendants evic Plaintiff from the cted fs 17 Prop perty. 18 II. 19 LEGAL STANDAR L RD A motion to dismiss under Rule 12(b)(6) tes the legal s n sts sufficiency o the claims alleged in of s 20 the complaint. Ileto v. Gloc Inc., 349 F.3d 1191, 1 c I ck, 1199-1200 ( (9th Cir. 200 03). All alleg gations of 21 mate erial fact are taken as tru Erickson v. Pardus, 551 U.S. 89 94 (2007). However, l e ue. n 9, legally 22 pted. See As conc clusory state ements, not supported by facts, need not be accep s y d shcroft v. Iqbal, 556 23 U.S. 662, 678 (2 2009). Plain ntiffs’ obliga ation to prov ide the grou unds of their entitlement to relief 24 “req quires more than labels and conclusio and a fo t a ons, ormulaic rec citation of the elements o a cause of of f 25 actio will not do.” Bell Atl on d lantic Corp. v. Twombly 550 U.S. 5 y, 544, 555 (200 (citation and 07) ns 26 quot tations omitt ted). Rather the allegations in the c r, complaint “m be enou to raise a right to must ugh 27 relie above the speculative level.” Id. ef 28 3 1 Review is generally limited to th contents o the compl he of laint and doc cuments atta ached 2 ther reto. Allarco Pay Telev om vision. Ltd. v. Gen. Instr v rument Corp 69 F.3d 381, 385 (9th Cir. 1995). p., h 3 Add ditionally, th Court may consider matter that is properly the subject of judicial notic such as he y m e ce, 4 cour filings and other publi records, without conve rt d ic w erting a mot tion to dismi into one f summary iss for y 5 judg gment. Lee v. Los Angel 250 F.3d 668, 688-8 (9th Cir. 2 v les, d 89 2001). The C Court finds t the that 6 docu uments subm mitted by We Fargo an Plaintiffs are properly the subject of judicial n ells nd y t notice. Fed. . 7 R. Evid. 201(b)( E (2). All of th documen are docum he nts ments issued by a legisla d ative or execu utive 8 depa artment of th United St he tates, public records pert taining to the Property, o court filin e or ngs. The 9 Cou will take judicial notice of the dat parties, a legally o urt j tes, and operative lan nguage of the ese docu uments, but not the truth of various factual repre h f esentations m made in the d documents.3 See Lee, 11 United States District Court Northern District of California 10 supr 250 F.3d at 690. ra, d 12 III. DISCUS SSION Plaintiff first cause of action al fs’ e lleges Wron ngful Trustee Sale on th grounds t the e’s he that 13 14 trust tee’s sale wa improperl held becau Defenda failed to comply wit the (a) Na as ly use ants o th ational 15 Hou using Act and (b) Fair De Collectio Practices Act before i d ebt on initiating for reclosure pro oceedings. 16 Base on these same allegat ed s tions, the sec cond cause o action see to quiet title in the Pr of eks roperty 17 agai Wells Fa inst argo. The th cause of action reall hird f leges a viola ation of the F FDCPA. Because the 18 alleg violation of the FD ged ns DCPA is also used to sup pport the clai for Wron im ngful Trustee Sale, the e’s 19 Cou will addre the FDCP claim as an element of the Wron urt ess PA ngful Trustee Sale claim e’s m. 20 A. FIRST CAUSE OF ACTION: WRONGF TRUSTE ’S SALE E N FUL EE 21 A nonjud dicial foreclosure sale is presumed t have been conducted r s to n regularly and fairly. d 22 Ngu uyen v. Calho 105 Cal App. 4th 428, 444 (Ca Ct. App. 2 oun, l. 4 al. 2003) (“Our analysis pro r oceeds on 23 the presumption of validity accorded the foreclosure sale”). To state a caus of action f a p n e e se for 24 wrongful trustee sale, the Plaintiffs mu plead “(1 the trustee or mortgag caused an illegal, e’s ust 1) e gee n 25 3 26 27 28 For example, a Declaration filed with the Notice of Def r D fi N fault (RJN, E F, at 3) dec Ex. clares under p penalty of perju that “Wel Fargo Bank, N.A., has tried with due diligence … to contact th borrower.” The Court ury lls t e he ” can take judicial notice of the fact that this statement wa made and th legally ope t n f s as he erative effect of a declaration under penalty of pe r erjury, but no the truth of the matter as ot f sserted in the hearsay decla aration. The Cour uses this ex rt xample becau Wells Farg argues that the Court ca take judicial notice of th truth of the use go at an he e state ements contained in the dec claration beca ause the decla aration was m made under pe enalty of perju ury. 4 1 frau udulent, or willfully oppr w ressive sale of real prope pursuant to a power of sale in a mortgage or o erty t r 2 deed of trust; (2) the party attacking the sale (usuall but not alw d a ly ways the trus or mortg stor gagor) was 3 prejudiced or ha armed; and (3) in cases where the tru w ustor or mort tgagor challe enges the sa the ale, 4 trust or mortgagor tendere the amoun of the secu tor ed nt ured indebte edness or wa excused fr as rom 5 tend dering.” Lon v. Citiban N.A., 202 Cal. App. 4 89, 104 ( na nk, 2 4th (Cal. Ct. App 2011). p. 6 7 First Element: Il llegal, fraudu dulent, or wil llfully oppres ssive sale of real f prope erty. 8 Plaintiffs alle that Defe P ege fendants faile to comply with the (a NHA; and (b) FDCPA ed y a) d A 9 befo beginning foreclosur proceeding and theref ore re gs fore, contend the Trustee’s Sale was improperly s y 10 1. 1 held d. United States District Court Northern District of California 11 a) 12 ndants allege edly violated the NHA b d because, prio to initiatin or ng Defen National Housing Act H t. 13 fore eclosure proc ceedings, a bank represen b ntative faile d to “meet w plaintiff on a face t face basis with fs to 14 to discuss altern natives to for reclosure and [a] modific d cation of the subject loan (Compla ¶ 7.) e n.” aint 15 Add ditionally, Pl laintiffs alleg that “Wel Fargo wa required to secure the approval of the ge lls as o 16 Secr retary of Housing and Urban Develo U opment prior to commen r ncing any for reclosure pro oceedings.” 17 (Id.) ) 18 Wells Fa argo argues that the NHA does not a t A apply to Plain ntiffs’ mortg gage and eve if it did, en 19 the NHA does not provide for a private right of action. The Cou agrees. S Karigud N n f urt See ddaiah v. 20 Wel Fargo Bank, N.A., C-0 lls 09-5716 MH 2010 WL 2650492, at *5 (N.D. Cal. July 1, 2010) (“the HP, L 21 Nati ional Housin Act does not create a private right of action”) To suppor this claim, Plaintiffs ng ). rt , t 22 cite to the short title to the NHA, 12 U.S § 1701, and a subpa of its imp N S.C. art plementing regulations, 23 C wever, as the plain langua of the NH shows it does not im age HA t mpose the 24 C.F.R. § 203.500.4 How 24 4 25 26 27 28 The referenced subpart provi ides: This subp identifies servicing pra part s actices of len nding institutio that HUD considers ons D acceptabl for mortgag insured by HUD. Failu to comply with this sub le ges y ure y bpart shall no be a ot basis for denial of insu urance benefits, but failure to comply w be cause f imposition of a e will for n civil mon penalty, in ney ncluding a pe enalty under § 30.35(c)(2), or withdrawa of HUD’s al approval of a mortgag gee. It is the intent of the D Department th no mortga hat agee shall commenc foreclosure or acquire ti to a prope until the r ce e itle erty requirements of this subpa art have been followed. n 5 1 duties allegedly breached vis-à-vis a mortagee and mortgagor, rather it “‘govern[s] relations 2 between the mortgagee and the government.’” Jara v. Aurora Loan Services LLC, C-11-00419 LB, 3 2011 WL 4536898, at *4 (N.D. Cal. Sep. 30, 2011) (holding that plaintiff’s “attempt to amend his 4 complaint to allege that Defendants failed to comply with the terms of the National Housing Act, 5 then, is futile”) (quoting Mitchell v. Chase Home Finance LLC, Case No. 06-CV-2099-K, 2008 WL 6 623395, at *3 (N.D. Tex. Mar. 4, 2008)). Plaintiffs do not address this issue at all in their 7 Opposition brief, which the Court takes as a concession that this claim lacks merit. 8 9 Based on the foregoing, the Court GRANTS WITH PREJUDICE the Motion to Dismiss Plaintiffs’ claim for wrongful trustee’s sale on this particular basis. b) 11 United States District Court Northern District of California 10 Fair Debt Collection Practices Act. The FDCPA prohibits “debt collectors” from engaging in unfair, abusive, or 12 deceptive practices “in connection with the collection of a debt.” 15 U.S.C. § 1692. Under the 13 FDCPA, debt collectors are required to provide debtors with a Debt Validation Notice to notify 14 debtors of their dispute rights shortly after communicating with them “in connection with the 15 collection of a debt.” Id. § 1692g. 16 Plaintiffs allege that the Defendants failed to provide a Debt Validation Notice in 17 connection with the collection of a debt in violation of the FDCPA. Specifically, Plaintiffs allege 18 that Defendant Regional Service “was employed by Wells Fargo as a debt collector after plaintiffs 19 defaulted on their loan payment. Regional Service failed to provide plaintiffs the Debt Validation 20 Notice required by the FDCPA. Regional Service also engaged in unfair debt collection practices 21 by proceeding to sell the subject property with actual knowledge that plaintiffs were being denied 22 the protections of the law.” (Complaint ¶ 8.) FDCPA Analysis: Regional Service Corporation. 23 i. 24 Regional Service argues that it is exempt from the FDCPA because it 25 is not a “debt collector” and that it was not engaging in debt collection services. Under the 26 FDCPA, a “debt collector” is defined as “any person … in any business the principal purpose of 27 which is the collection of any debts, or who regularly collects or attempts to collect, directly or 28 24 C.F.R. § 203.500. 6 1 indirectly, debts owed or due or asserted to be owed or due another.” 15 U.S.C. § 1692a. Here, the 2 Complaint alleges as follows: 3 Regional Service Corporation is a debt collector as that term is defined in the FDCPA. In particular, the principal business of Regional Services is the collection of delinquent debts from borrowers such as plaintiffs. Regional Service began its debt collection activities after plaintiffs were in default. Also Regional Service used the US Mail to solicit money from plaintiffs after the default of plaintiffs. 4 5 6 7 (Complaint ¶ 9.) Regional Service disputes the truth of these allegations but does not otherwise 8 challenge the legal sufficiency of these particular allegations. Given the procedural posture of this 9 case, the Court must accept the allegations as true. Regional Service next argues that it was not engaging in debt collection services because, 10 United States District Court Northern District of California 11 under the FDCPA, the non-judicial foreclosure of real property secured by a deed of trust is not 12 “debt collection activity.” Ample authority supports this position. See, e.g., Odinma v. Aurora 13 Loan Services, C-09-4674 EDL, 2010 WL 2232169, at *11 (N.D. Cal. June 3, 2010) (collecting 14 cases that hold “foreclosure is not debt collection under the federal Fair Debt Collection Practices 15 Act”). In opposition, Plaintiffs refer to a brief filed by the Consumer Financial Protection Bureau5 16 in Birster v. Am. Home Mortg. Servicing, Inc., 11-13574, 2012 WL 2913786 (11th Cir. July 18, 17 2012), in which it argued that district courts have construed the statute too narrowly so as to 18 eliminate categorically all debt collection services which may be related to a foreclosure. However, 19 that case did involve more traditional attempts to collect on a debt. There, the defendant allegedly 20 “engaged in a relentless assault of harassing phone calls and home inspections in an attempt to 21 collect the mortgage debt.” Id. at *1. Additionally, the defendant mailed a letter that stated “THIS 22 23 24 25 26 27 28 5 Plaintiffs argue that the Court must defer to the agency’s interpretation of a statute as reflected in the amicus brief. The cases to which they cite in support are not on point as the cases refer to a type of deference described as Auer deference, which requires courts defer to an agency’s interpretation of its own ambiguous regulations even if the interpretation is advanced in an amicus brief. See Auer v. Robbins, 519 U.S. 452, 461-62 (1997). The amicus brief filed by the Consumer Financial Protection Bureau is interpreting the FDCPA, not the agency’s own regulations. An agency interpretation not embodied in any formal issuance from the agency, such as a regulation, guideline, policy statement, or administrative adjudication is entitled to little if any deference. Bowen v Georgetown Univ. Hospital, 488 U.S. 204, 212-13 (1988); see Bresgal v. Brock, 843 F.2d 1163, 1168 (9th Cir. 1987) (“[The agency] did not construe [the statutory provision at issue] until the onset of this litigation. The Secretary’s construction is entitled to no more deference than is the interpretation of any party to the suit”). 7 1 IS AN ATTEMPT TO COLLECT A DEBT,” advising the homeowners that it would proceed with 2 the foreclosure unless they cured the default. (Id.) In an unpublished decision, the Eleventh Circuit 3 found this evidence insufficient to determine whether the defendant was a debt collector or was 4 engaging in debt collection activity and reversed the summary judgment entered against the 5 homeowners. Id. at *4 (“an entity can both enforce a security interest and collect on a debt”) 6 (citing Reese v. Ellis, Painter, Ratterree & Adams, LLP, 678 F.3d 1211, 1217 (11th Cir. 2012)) 7 (“The fact that the letter and documents relate to the enforcement of a security interest does not 8 prevent them from also relating to the collection of a debt within the meaning of § 1692e.”). By 9 contrast, here, Plaintiffs allege that “Regional Service used the US Mail to solicit money from 10 plaintiffs after the default of plaintiffs.” (Complaint ¶ 9.) Plaintiff has not pled sufficient facts for the Court to determine whether Regional Service’s United States District Court Northern District of California 11 12 conduct constituted debt collection services. The mere mailing of a Notice of Default will not 13 suffice. See Santoro v. CTC Foreclosure Serv., 12 Fed.App. 476, 480 (9th Cir. 2001). The Motion 14 to Dismiss is GRANTED WITH LEAVE TO AMEND. FDCPA Analysis: Wells Fargo. 15 ii. 16 Wells Fargo also argues that it is exempt from the provisions of the 17 FDCPA.6 Plaintiffs do not contest that when Wells Fargo acts as a lender, it is exempt from the 18 FDCPA, but argue that Wells Fargo is not exempt when it acts as a loan servicer. According to 19 Plaintiffs, they are entitled to pursue their claims against America’s Servicing Company, the 20 servicing division of Wells Fargo. America’s Servicing Company is not a defendant to this lawsuit 21 and there are no allegations about it in the Complaint. 22 Based on the foregoing, the Court GRANTS the Motion to Dismiss the FDCPA cause of 23 action against Wells Fargo to the extent it is based on its banking capacity. The Court does not 24 give an advisory opinion regarding America’s Servicing Company. However, the Court GRANTS 25 LEAVE TO AMEND to permit Plaintiffs to bring this claim against America’s Servicing Company. 26 27 28 6 Wells Fargo argues that even if the FDCPA did apply to it, Plaintiffs fail to allege that they provided a timely written dispute of the debt, as required by 15 U.S.C. § 1692g(b). There is no such pleading requirement. 8 1 2. 2 Secon Element: Prejudice. nd 2 Irregularities in a nonjud s dicial foreclo osure sale ma be ground for setting aside the ay ds g 3 sale if the irregu ularities are prejudicial to the party c p o challenging t sale. Lon supra, 20 Cal. App. the na, 02 4 4th at 104. Thu the party attacking the sale must a us, a e allege that th were pre hey ejudiced or h harmed by 5 the violation. v 6 Wells Fa argo argues that even if Plaintiffs co uld allege a flaw in the f t P foreclosure m mechanics, “hyp per-technica defects ar not a basis to challeng a trustee’s sale. Altho al” re s ge s ough Plaintif have ffs 8 alleg technica noncompli ged al iance with fe ederal law, t they have no explained how they we ot ere 9 prejudiced by su noncomp uch pliance. Pla aintiffs allege that they d e defaulted on the Note, wh under hich 10 the Deed of Tru allowed the Trustee (or Beneficia to initia foreclosur proceedin D ust, t ( ary) ate re ngs. If the 11 United States District Court Northern District of California 7 Trus (or Bene stee eficiary) has the right to initiate fore s eclosure proc ceedings, the Plaintiffs must allege en 12 facts that show the violation of the statu itself, and not the fore t n ute d eclosure pro oceedings, ca aused their 13 inju ury. Here, Pl laintiffs alleg that their injuries wer caused by the foreclos ge re y sure proceed dings, and 14 not by any statu b utory violatio Therefor Plaintiffs fail to alleg the prejud necessar to state a on. re, ge dice ry 15 claim for wrong foreclosu m gful ure. 16 17 Based on the foregoi analysis, the Court G RANTS the Motion to D n ing , Dismiss the c claim for Wro ongful Truste Sale on the grounds that Plainti fail to all ee’s s iffs lege prejudic ce. 18 3. 3 d T Third Element: Tender. 19 Finally, in or F rder to set as a foreclo side osure, Plaint tiffs must all lege that they offered to y 20 tend the full amount of the secured ind der e debtedness o that they s or should be ex xcused from tendering 21 the full amount. See Abdall v. United Savs. Bank 43 Cal. Ap 4th 1101, 1109 (Cal. Ct. App. f lah d k, pp. 22 1996); see also Guerrero v. Greenpoint Mortg. Fun nding, Inc., C Case No. 10-15333, 2010 WL 0 23 4117 7102, at *1 (9th Cir. Oct 20, 2010) (stating the p ( t. plaintiffs “la acked standi to bring a claim for ing 24 ‘wro ongful foreclosure,’ beca ause they fai to allege actual, full and unambiguous tende of the iled e l er 25 debt owed on th mortgage” “This req t he ”). quirement is based on th theory tha one who is relying he at s 26 upon equity in overcoming a voidable sale must sho that he is able to perf n o ow s form his obli igations 27 unde the contra so that eq er act quity will no have been employed fo an idle pu ot or urpose.” Dim mock v. 28 Eme erald Proper rties LLC, 81 Cal. App. 4th 868, 878 (Cal. Ct. A 1 4 8 App. 2000) (c citing Karlse v. Am. en 9 1 Sav. & Loan Ass 15 Cal. App. 3d 112 118 (Cal. C App. 197 . sn., A 2, Ct. 71)). Here, t Complai lacks the int 2 alleg gations of fu tender or that tender should be ex ull s xcused.7 Inst tead, the alle egations are ambiguous 3 as to what Plain o ntiffs are will ling to tende Thus: “P er. Plaintiffs are ready, willi and able to make the e ing e 4 paym ments requir of them pursuant to the Deed of Trust” but re red p t equest “an a accounting to determine o 5 the amount due under the Deed of Trust as wells [s as the ap a D t, sic] ppropriate pa ayment sched dule.” 6 (Com mplaint ¶¶ 12, 15.) Sim 1 milarly, in the opposition Plaintiffs argue that “ eir n, “Plaintiffs ar ready, re 7 willing and able to tender th post petiti amounts due on the l e he ion loan.” (Opp 14.) The also argue p’n ey e 8 that it would be inequitable to require fu tender be cause Mr. A ull Aguiar was o of work w out when 9 fendants initi iated the fore eclosure proceedings. T These allegat tions and arg guments crea ate Defe amb biguity as to whether the Plaintiffs ca tender the full amoun and wheth the amou they an e nt her unt 11 United States District Court Northern District of California 10 inten to tender is pre- or po petition. nd ost. Based on this analys the Court GRANTS th Motion to Dismiss Pla n sis, t he o aintiffs’ clai for im 12 13 Wro ongful Truste Sale bec ee’s cause the co omplaint fails to allege “f s full” tender. 14 B. SECOND CAUSE OF ACT : QUIET TITLE TION T 15 The claim for Quiet Title against Wells Farg is predica on the sa acts und m go ated ame derlying the 16 claim for a Wrongful Truste Sale. Accordingly, the Court GRANTS the M m ee’s A Motion to Di ismiss for 17 the reasons set forth above. r f 18 IV. CONCL LUSION 19 Based on the foregoi analysis, the Court G RANTS the Motion to D n ing , Dismiss. 20 Plaintiff Complain is DISMISS WITH L EAVE TO AM fs’ nt SED MEND consis stent with th Order. his 21 By no la than 21 days after the date this O ater d Order is filed Plaintiffs sh file an a d hall amended 22 com mplaint. 23 der tes N This Ord Terminat Docket Number 7. 24 IT IS SO ORDERED. 25 26 Date:November 26, 2012 27 __ __________ ___________ __________ __________ YVON GONZAL ROGERS NNE LEZ UNITED ST TATES DISTR RICT COURT JUDGE T 28 7 Pla aintiffs’ claim for Quiet Tit seeks an accounting to set up a paym plan for late payment m tle a ment ts. 10

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