Heddi Lindberg v. Wells Fargo Bank, N.A. et al

Filing 28

ORDER by Judge Hamilton granting 19 Motion to Dismiss (pjhlc2, COURT STAFF) (Filed on 9/12/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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HEDDI LINDBERG,

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v.

No. C 14-2544 PJH
ORDER DISMISSING COMPLAINT

WELLS FARGO BANK, N.A., et al.,
Defendants.
_______________________________/

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For the Northern District of California

United States District Court

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Plaintiff,

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Defendant’s motion to dismiss came on for hearing before this court on September

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10, 2014. Plaintiff Heddi Lindberg (“plaintiff”) appeared through her counsel, John Holman.

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Defendant Wells Fargo Bank N.A. (“Wells Fargo”) appeared through its counsel, Kenneth

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Franklin. Having read the parties’ papers and carefully considered their arguments and the

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relevant legal authority, and good cause appearing, the court hereby GRANTS Wells

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Fargo’s motion to dismiss for the reasons stated at the hearing and as follows.

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As stated at the hearing, the court finds that plaintiff’s first cause of action, for

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declaratory relief, is barred by res judicata, based on the court’s dismissal of plaintiff’s

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complaint in a previous case before this court. See Lindberg v. Wells Fargo, 2013 WL

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3457078 (N.D. Cal. July 9, 2013) (referred to as “Lindberg I”). Plaintiff’s first cause of

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action alleges that Wells Fargo lacks standing to foreclose on the subject property,

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because it is not the holder of the note, because plaintiff’s loan was securitized, and

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because the loan was improperly assigned. The court addressed and rejected each of

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these arguments in Lindberg I. Thus, plaintiff’s first cause of action is DISMISSED without

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leave to amend.

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Plaintiff’s second cause of action, for wrongful foreclosure, is imprecisely pled, but

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appears to allege that Wells Fargo acted improperly during the loan modification process.

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As stated at the hearing, this cause of action is DISMISSED, but with leave to amend. Any

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amended complaint must clearly set forth: (1) a timeline of plaintiff’s bankruptcy filings, and

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an explanation of why any bankruptcy filings do not bar her claims under California’s

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Homeowner Bill of Rights (“HBOR”), (2) a timeline of plaintiff’s loan modification

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applications, (3) an explanation of the specific behavior that underlies the alleged HBOR

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violations (e.g., dual tracking, failure to provide a foreclosure alternative, failure to

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designate a single point of contact, and/or loan modification abuse), and (4) facts

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establishing plaintiff’s standing to bring this suit, including whether she is the trustee of the

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trust that owns the subject property, and whether HBOR allows her to bring suit as the

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For the Northern District of California

United States District Court

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trustee of a trust.
In addition, the court finds that any part of plaintiff’s claim that arose before

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December 19, 2013, the date that Lindberg I was dismissed with prejudice under Rule

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41(b) for failure to comply with a court order, is barred by res judicata. Rule 41(b)

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specifically states that “[u]nless the dismissal order states otherwise, a dismissal under this

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rule – except one for lack of jurisdiction, improper venue, or failure to join a part under Rule

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19 – operates as an adjudication on the merits.” Given that res judicata bars not only

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claims that were raised, but claims that could have been raised, the court finds that any

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conduct that occurred before December 19, 2013 could have been brought in Lindberg I,

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and thus, cannot be revived in this suit. See, e.g., Western Radio Services Co, Inc. v.

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Glickman, 123 F.3d 1189, 1192 (9th Cir. 1997). Thus, any amended complaint must be

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limited to conduct that occurred after December 19, 2013.

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Plaintiff’s amended complaint must be filed by October 8, 2014, and defendant shall

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have 21 days after its filing to answer or otherwise respond to the complaint. No new

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claims or parties may be added without leave of court or the agreement of all parties.

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IT IS SO ORDERED.

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Dated: September 12, 2014
______________________________
PHYLLIS J. HAMILTON
United States District Judge

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