Shetty v. America's Wholesale Lender et al

Filing 94

ORDER ADOPTING 87 REPORT AND RECOMMENDATION IN PART; CLARIFYING THAT THE OPERATIVE PLEADING IS THE SECOND AMENDED COMPLAINT; DISMISSING THE SECOND AMENDED COMPLAINT WITH LEAVE TO AMEND IN PART AND WITHOUT LEAVE TO AMEND IN PART; AND CONTINUING CASE MANAGEMENT CONFERENCE FROM APRIL 4, 2019 TO JULY 18, 2019. Amended Pleading due by 4/15/2019. Case Management Statement due by 7/11/2019. Further Case Management Conference set for 7/18/2019 11:00 AM in San Jose, Courtroom 3, 5th Floor. Signed by Judge Beth Labson Freeman on 3/25/2019. (blflc1S, COURT STAFF) (Filed on 3/25/2019)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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NIKI-ALEXANDER SHETTY,
Plaintiff,

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ORDER ADOPTING REPORT AND
RECOMMENDATION IN PART;
CLARIFYING THAT THE
OPERATIVE PLEADING IS THE
SECOND AMENDED COMPLAINT;
DISMISSING THE SECOND
AMENDED COMPLAINT WITH
LEAVE TO AMEND IN PART AND
WITHOUT LEAVE TO AMEND IN
PART; AND CONTINUING CASE
MANAGEMENT CONFERENCE
FROM APRIL 4, 2019 TO JULY 18, 2019

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[Re: ECF 87, 89, 92]

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United States District Court
Northern District of California

Case No. 16-cv-05846-BLF

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v.
AMERICA’S WHOLESALE LENDER,
THE BANK OF NEW YORK MELLON,
BAYVIEW LOAN SERVICING, LLC, and
KLINEDINST PC,
Defendants.

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In the past five years, Plaintiff Niki-Alexander Shetty has filed more than a dozen

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foreclosure and property-related actions in the Northern and Central Districts of California. See

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Defs.’ Response to Obj. at 3-4, ECF 92 (collecting cases). Shetty filed the present action on

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October 11, 2016, seeking to rescind a residential mortgage loan and to quiet title to real property

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located in Watsonville, California. See Compl., ECF 1. Shetty filed the action pro se but

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subsequently he retained counsel.

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When filed in 2016, the action was assigned to Magistrate Judge Nathaneal M. Cousins.

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Judge Cousins recently issued an order directing that the action be reassigned to a district judge,

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along with a Report and Recommendation (“R&R”) that the action be dismissed without prejudice

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as to Defendant America’s Wholesale Lender and with prejudice as to Defendants The Bank of

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New York Mellon, Bayview Loan Servicing, LLC, and Klinedinst PC. See R&R, ECF 87. The

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Court has considered the R&R, the objection thereto filed by Shetty, and the response to the

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objection filed by Defendants The Bank of New York Mellon, Bayview Loan Servicing, LLC, and

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Klinedinst PC. See Objection, ECF 89; and Defs.’ Response to Obj., ECF 92.
For the reasons discussed below, the Court ADOPTS the R&R IN PART, DISMISSES the

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operative second amended complaint with leave to amend in part and without leave to amend in

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part; and CONTINUES the Case Management Conference from April 4, 2019 to July 18, 2019.

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I.

BACKGROUND
Because the case history provides necessary context for Judge Cousins’ R&R, the

procedural background is set forth in some detail below.

United States District Court
Northern District of California

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Original Complaint

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In the original complaint filed October 11, 2016, Shetty claimed that Jesus Serrano

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Melchor and Evangelina Melchor assigned to him their ownership interest in a parcel of real

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property located in Watsonville, California, along with any claims they had relating to the

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property. See Compl., ECF 1. Shetty sought to rescind the mortgage loan transaction entered into

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by the Melchors when they bought the property, quiet title to the property, and cancel the Note,

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Deed of Trust, and related documents. See id. The complaint was asserted against two

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defendants, America’s Wholesale Lender and The Bank of New York Mellon. Id.

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Dismissal of Original Complaint

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Judge Cousins granted a motion to dismiss brought by Defendant The Bank of New York

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Mellon, with leave to amend. See Order filed 12/23/2016, ECF 30. In his dismissal order, Judge

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Cousins noted that all real parties in interest had consented to the jurisdiction of a magistrate judge

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under 28 U.S.C. § 636. Id. at 2 n.1. Judge Cousins disregarded Defendant America’s Wholesale

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Lender for purposes of determining consent, based on Shetty’s representation that America’s

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Wholesale Lender was a non-existent entity. Id.

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First Amended Complaint and Second Amended Complaint

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Shetty filed a first amended complaint (“FAC”) on January 19, 2017, again naming

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America’s Wholesale Lender and The Bank of New York Mellon as Defendants, and adding
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Defendants Bayview Loan Servicing, LLC and Klinedinst PC. FAC, ECF 33. The Bank of New

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York Mellon filed a motion to dismiss the FAC. Motion to Dismiss FAC, ECF 41. While that

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motion was pending, Judge Cousins held the Initial Case Management Conference, at which time

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he directed Shetty to file a motion for leave to amend to add the additional parties on or before

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March 3, 2017. Minute Entry, ECF 43. Shetty filed a motion for leave to file a second amended

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complaint (“SAC”) on March 3, 2017, seeking to add Bayview Loan Servicing, LLC and

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Klinedinst PC as defendants, and attaching a proposed SAC (improperly titled “Verified First

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Amended Complaint”). Motion for Leave to Amend, ECF 50-53. The motion for leave to amend

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was opposed by The Bank of New York Mellon, Bayview Loan Servicing, LLC, and Klinedinst

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PC. See Opp., ECF 57. Judge Cousins heard argument on the motions on March 22, 2017 and

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United States District Court
Northern District of California

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April 19, 2017. See Minute Entries, ECF 63, 64.

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Dismissal with Prejudice

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On August 7, 2017, Judge Cousins issued an “Order Dismissing First and Second

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Amended Complaint as Futile, and Dismissing Case Without Leave to Amend.” See Order filed

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8/7/2017, ECF 65. The order is unclear as to whether Judge Cousins (a) granted Shetty’s motion

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for leave to file the SAC, treated the SAC as the operative pleading, and then dismissed the SAC

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without leave to amend, or (b) denied Shetty’s motion for leave to file the SAC, treated the FAC

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as the operative pleading, and dismissed the FAC without leave to amend. The distinction is

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important, because if Judge Cousins denied Shetty’s motion for leave to amend to add Bayview

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Loan Servicing, LLC and Klinedinst PC as defendants, then those entities are not parties to this

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action. Because Judge Cousins addressed Shetty’s claims against Bayview Loan Servicing, LLC

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and Klinedinst PC on the merits, addressed all of the claims alleged in the SAC on the merits, and

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specifically dismissed the SAC, the Court concludes that Judge Cousins permitted the amendment

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and it therefore treats the SAC as the operative pleading. Judge Cousins noted in his order that all

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real parties in interest had consented to the jurisdiction of a magistrate judge under 28 U.S.C. §

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636(c). See Order filed 8/7/2017 at 2, ECF 65. Judge Cousins disregarded Defendant America’s

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Wholesale Lender for purposes of determining consent, based on Shetty’s representation that it

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was a non-existent entity. Id. at 3.
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Ninth Circuit’s Memorandum Vacating and Remanding

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Shetty appealed Judge Cousins’ dismissal of the action. Notice of Appeal, ECF 67. In

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ruling on the appeal, the Ninth Circuit did not address the merits of Judge Cousins’ dismissal

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order, but instead held as follows:

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Shetty and defendants The Bank of New York Mellon, Bayview Loan Servicing,
LLC, and Klinedinst PC consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c). The magistrate judge, however, dismissed claims against another
named defendant in the action, America’s Wholesale Lender, before that defendant
had been served. Because all parties, including unserved defendants, must consent
to proceed before the magistrate judge for jurisdiction to vest, Williams, 875 F.3d at
503-04, we vacate the magistrate judge’s order and remand for further proceedings.
Shetty v. Am.’s Wholesale Lender, 735 F. App’x 373, 373 (9th Cir. 2018).
Proceedings Before Judge Cousins on Remand

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United States District Court
Northern District of California

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On remand, Judge Cousins set a case management conference, at which he directed Shetty

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to file a status update regarding service on America’s Wholesale Lender by November 21, 2018.

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Minute Entry, ECF 78. Shetty did not file a status update, and on November 29, 2019, Judge

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Cousins issued an Order to Show Cause Re: Lack of Prosecution. OSC filed 11/29/2018. At that

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point, Shetty retained counsel, who timely responded to the Order to Show Cause on December 5,

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2018. Response to OSC, ECF 83. Counsel characterized Shetty as an unsophisticated pro se

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litigant who was “lacking the knowledge to comply” with the Court’s order regarding service on

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America’s Wholesale Lender. Id. ¶¶ 1-2. Counsel requested that the Court grant Shetty an

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opportunity to file another amended complaint in light of Shetty’s recent retention of experienced

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counsel. Id. ¶ 12.

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Judge Cousins’ Order that Case be Reassigned to a District Judge and R&R

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On December 21, 2018, Judge Cousins issued an order directing that the action be

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reassigned to a district judge, stating that “[b]ecause ‘America’s Wholesale Lender’ does not exist,

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there is no way that it can consent to magistrate judge jurisdiction.” R&R at 2, ECF 87. Judge

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Cousins recommended that the newly assigned district judge dismiss Defendant America’s

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Wholesale Lender without prejudice under Federal Rule of Civil Procedure 4(m) for failure to

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effect service of process, and dismiss all claims against Defendants The Bank of New York

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Mellon, Bayview Loan Servicing, LLC, and Klinedinst PC for the reasons articulated in Judge
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Cousins’ prior “Order Dismissing First and Second Amended Complaint as Futile, and Dismissing

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Case Without Leave to Amend.” Id.
With respect to Shetty’s request for further leave to amend, Judge Cousins stated that

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“Shetty has neither filed a motion for leave to amend, nor articulated how an amendment would

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cure the deficiencies identified in the August 7, 2017, order dismissing the case. That order

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determined that further leave to amend would be futile.” R&R at 2, ECF 87.
Shetty has filed an objection to Judge Cousins’ R&R, and Defendants The Bank of New

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York Mellon, Bayview Loan Servicing, LLC, and Klinedinst PC have filed a response to the

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objection.

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II.

LEGAL STANDARD

United States District Court
Northern District of California

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When a magistrate judge is assigned, without the parties’ consent, to hear a pretrial matter

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dispositive of a claim, the magistrate judge must issue a recommended disposition for review by a

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district judge. Fed. R. Civ. P. 72(b)(1). The recommended disposition must be served on the

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parties, who then have fourteen days to file objections. Fed. R. Civ. P. 72(b)(2). “The district

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judge must determine de novo any part of the magistrate judge’s disposition that has been properly

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objected to.” Fed. R. Civ. P. 72(b)(3). “The district judge may accept, reject, or modify the

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recommended disposition; receive further evidence; or return the matter to the magistrate judge

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with instructions.” Id.
Under this district’s Civil Local Rules, any objection pursuant to Rule 72(b) must be made

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as a noticed “Motion for De Novo Determination of Dispositive Matter Referred to Magistrate

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Judge.” Civ. L.R. 72-3(a). Shetty’s objection to Judge Cousins’ R&R does not comply with this

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requirement. The Court nonetheless considers the objection on the merits.

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III.

DISCUSSION
As discussed above, Judge Cousins’ rulings were unclear as to whether he granted Shetty’s

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motion for leave to file the SAC to add Bayview Loan Servicing, LLC and Klinedinst PC as

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defendants. For the reasons discussed in Part I, above, this Court construes Judge Cousins’ rulings

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as granting leave to amend to add the additional defendants. To the extent there is any question on

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that point, this Court now grants Shetty’s motion for leave to file the SAC. Shetty’s SAC
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(erroneously captioned “Verified First Amended Complaint”), dated March 2, 2017 and attached

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as Exhibit 1 to the Declaration of Niki-Alexander Shetty in Support of Plaintiff’s Motion for

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Leave to Amend and File Second Amended Complaint, is the operative pleading. See ECF 52.

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The Court next considers whether Shetty’s SAC, asserting claims against Defendants

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America’s Wholesale Lender, The Bank of New York Mellon, Bayview Loan Servicing, LLC, and

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Klinedinst PC, should be dismissed without leave to amend as recommended by Judge Cousins.
America’s Wholesale Lender

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A.

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Judge Cousins has recommended dismissal of Defendant America’s Wholesale Lender

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without prejudice under Federal Rule of Civil Procedure 4(m) for failure to effect service of
process. Shetty does not argue that America’s Wholesale Lender has been served or, indeed, that

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United States District Court
Northern District of California

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it even exists.

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Accordingly, America’s Wholesale Lender is DISMISSED WITHOUT LEAVE TO
AMEND and WITHOUT PREJUDICE.
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Defendants The Bank of New York Mellon, Bayview Loan Servicing, LLC,
and Klinedinst PC

Judge Cousins has recommended dismissal of all claims against Defendants The Bank of

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New York Mellon, Bayview Loan Servicing, LLC, and Klinedinst PC, without leave to amend and

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with prejudice, for the reasons stated in his August 7, 2017 “Order Dismissing First and Second

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Amended Complaint as Futile, and Dismissing Case Without Leave to Amend.” R&R at 2, ECF

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87. In his August 2017 Order, Judge Cousins found all claims of the SAC to be legally deficient.

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See id. This Court finds Judge Cousins’ analysis regarding the deficiencies of the SAC to be

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correct, well-reasoned and thorough. However, while the Court agrees with Judge Cousins that

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most of Shetty’s claims are absolutely barred, and therefore that leave to amend would be futile as

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to those claims, the Court concludes that Shetty’s claim for quiet title may benefit from one final

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opportunity for leave to amend.

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1.

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Claim 1 (Rescission)

The Court agrees with Judge Cousins’ conclusion that Claim 1 of the SAC, “Rescission of
Contract pursuant to California Civil Code § 1688 and 1689,” is not properly stated as a
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freestanding claim. Under California law, “[r]escission is not a cause of action; it is a remedy.”

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Nakash v. Superior Court, 196 Cal. App. 3d 59, 70 (1987); see also Moreno v. Citibank, N.A., No.

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C 09-5339 CW, 2010 WL 1038222, at *4 (N.D. Cal. Mar. 19, 2010) (“[R]escission is not a

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freestanding cause of action, but rather relief that may be granted as a result of unlawful

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conduct”). In his objection, Shetty asserts that he may plead common law rescission pursuant to

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California Civil Code §§ 1688 and 1689. Shetty fails to address the case law cited in Judge

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Cousin’s order holding that rescission is not a freestanding claim.

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Claim 1 of the SAC is DISMISSED WITHOUT LEAVE TO AMEND.
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Claim 2 (TILA)

Judge Cousins properly found that Shetty lacks standing to assert Claim 2 of the SAC,

United States District Court
Northern District of California

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“Enforcement of Rescission Pursuant to 15 U.S.C. § 1635,” because only a borrower on the

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transaction may assert a claim under § 1635 of the Truth in Lending Act. “The Truth in Lending

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Act gives borrowers the right to rescind certain loans for up to three years after the transaction is

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consummated.” Jesinoski v. Countrywide Home Loans, Inc., 135 S. Ct. 790, 791 (2015)

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(emphasis added); see also Mashburn v. Wells Fargo Bank, NA, No. C11-0179-JCC, 2011 WL

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2940363, at *2 (W.D. Wash. July 19, 2011) (“Since Plaintiff Hayakawa was not an obligor on the

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loan and had no right of rescission, Plaintiff Hayakawa does not have standing to bring the present

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TILA claim.”). Shetty concedes his lack of standing to pursue a TILA claim.

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Claim 2 of the SAC is DISMISSED WITHOUT LEAVE TO AMEND.
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Claim 3 (Cancellation Pursuant to Cal. Civ. Code § 3412)

Claim 3 of the SAC, “Cancellation of Written Instruments Pursuant to California Civil

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Code § 3412, challenges the assignment of the deed of trust securing the Melchors’ mortgage loan.

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Judge Cousins properly dismissed this claim on the basis that Shetty lacks standing. See Johnson

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v. PNC Mortg., 80 F. Supp. 3d 980, 990 (N.D. Cal. 2015) (holding that borrowers could not “state

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a viable claim for the cancellation of an assignment between third parties.”). In his objection,

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Shetty offers a lengthy quote from a decision of the Hawaii Supreme Court, Wells Fargo Bank,

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N.A. v. Behrendt, 142 Haw. 37 (2018). Behrendt does not address the standing requirements under

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California Civil Code § 3412.
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Claim 3 of the SAC is DISMISSED WITHOUT LEAVE TO AMEND.
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Claim 4 (Quiet Title)

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The Court agrees with Judge Cousins’ conclusion that Claim 4 of the SAC, “Quiet Title,”

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fails to state a claim, because it does not allege facts satisfying all elements of a quiet title claim.

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“Under California law, to state a claim for quiet title, the plaintiff must allege five elements: (1) a

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legal description and street address of the property; (2) the plaintiff’s title to which determination

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is sought and the basis of that title; (3) the adverse claims to the title against which a determination

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is sought; (4) the date as of which the determination is sought; and (5) a prayer for the

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determination of the title of plaintiff against the adverse claims.” Lopez v. Wells Fargo Bank,
N.A., No. 16-CV-0811 AJB (DHB), 2016 WL 6893591, at *11 (S.D. Cal. Nov. 23, 2016) (internal

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United States District Court
Northern District of California

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quotation marks and citation omitted). “A plaintiff must further allege the tender of, or an offer to

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tender, the remaining amount owed on the loan.” Id. Shetty has not described in full the adverse

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claims to the title he seeks, and he has not alleged tender or, or an offer to tender, the outstanding

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loan secured by the property.

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Judge Cousins has recommended dismissal of Claim 4 without leave to amend. However,

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because it is not clear that the deficiencies in this claim could not be cured by amendment, and in

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light of the fact that Shetty now has retained counsel, the Court will grant him one opportunity to

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amend Claim 4.

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Claim 4 of the SAC is DISMISSED WITH LEAVE TO AMEND.
5.

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Claim 5 (Conspiracy to Obstruct Justice)

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Claim 5 of the SAC, “Conspiracy to Obstruct Justice in Violation of 18 U.S.C. 1503,”

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properly was dismissed on the basis that § 1503 does not confer a private right of action. See

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Frost v. Office of Attorney Gen., No. C 17-04983 JSW, 2018 WL 6704137, at *2 (N.D. Cal. Dec.

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20, 2018).

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Claim 5 of the SAC is DISMISSED WITHOUT LEAVE TO AMEND.
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Claim 6 (FDCPA)

Claim 6 of the SAC, “Violation of Fair Debt Collection Practices Act,” properly was
dismissed because none of the defendants qualify as “debt collectors” under the Act. See Warren
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v. Wells Fargo & Co., No. 3:16-CV-2872-CAB-(NLS), 2017 WL 4876212, at *9 (S.D. Cal. Oct.

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27, 2017). In his objection, Shetty asserts that there is a circuit split as to whether creditors,

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mortgagors, and mortgage servicing companies can be sued as debt collectors under the FDCPA,

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and that this issue is pending before the United States Supreme Court in Obduskey v. McCarthy &

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Holthus LLP. Shetty asked that this Court stay its ruling on the R&R pending the Supreme

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Court’s ruling in Obduskey. However, because the Supreme Court issued its decision in Obduskey

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on March 20, 2019, Shetty’s request for a stay is moot. See Obduskey v. McCarthy & Holthus

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LLP, No. 17-1307, 2019 WL 1264579 (Mar. 20, 2019). The Supreme Court framed the issue

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before it as follows:

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United States District Court
Northern District of California

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The Fair Debt Collection Practices Act regulates “‘debt collector[s].’” 15 U.S.C. §
1692a(6); see 91 Stat. 874, 15 U.S.C. § 1692 et seq. A “‘debt collector,’” the Act
says, is “any person . . . in any business the principal purpose of which is the
collection of any debts, or who regularly collects or attempts to collect, directly or
indirectly, debts.” § 1692a(6). This definition, however, goes on to say that “[f]or
the purpose of section 1692f(6)” (a separate provision of the Act), “[the] term [debt
collector] also includes any person . . . in any business the principal purpose of
which is the enforcement of security interests.” Ibid.
The question before us concerns this last sentence. Does it mean that one
principally involved in “the enforcement of security interests” is not a debt
collector (except “[f]or the purpose of section 1692f(6)”)?

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Obduskey, 2019 WL 1264579, at *2. The Supreme Court answered that question in the

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affirmative, holding that “but for § 1692f(6), those who engage in only nonjudicial foreclosure

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proceedings are not debt collectors within the meaning of the Act.” Id. at *6. Nothing in

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Obduskey supports Shetty’s position that he could state a viable claim under the FDCPA in this

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case; to the contrary, Obduskey appears to foreclose any such claim.

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Claim 6 of the SAC is DISMISSED WITHOUT LEAVE TO AMEND.
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Claim 7 (Declarative Judgment)

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Finally, Judge Cousins dismissed Claim 7 of the SAC, “Declarative Judgment,” as

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derivative of his other, failed claims. See Nationwide Mut. Ins. Co. v. Liberatore, 408 F.3d 1158,

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1161 (9th Cir. 2005) (plaintiff asserting a declarative judgment action must plead an independent

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basis for subject matter jurisdiction). This Court agrees that dismissal on that basis is appropriate,

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because the declarative judgment claim is based on Shetty’s TILA and other statutory claims that
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are subject to dismissal with prejudice. To the extent Claim 7 is based on Claim 4 – the only

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claim as to which Shetty is granted leave to amend – it is dismissed as duplicative. See Bryant v.

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J.P. Morgan Chase Bank, N.A., 671 F. App’x 985, 987 (9th Cir. 2016) (“The district court

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properly dismissed Bryant’s request for a declaratory judgment because it was duplicative of her

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quiet title claim.”).

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Accordingly, Claim 7 of the SAC is DISMISSED WITHOUT LEAVE TO AMEND.

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C.

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Shetty requests leave to amend, both to re-plead his existing claims and to add Bank of

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Request to add Bank of America as a Defendant

America as a defendant. He does not suggest that he wishes to assert new claims against Bank of
America. He states only that he should have named Bank of America as a defendant in place of

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United States District Court
Northern District of California

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America’s Wholesale Lender.
Shetty’s request to amend his current claims is addressed above. Claims 1, 2, 3, 5, 6, and 7

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are absolutely foreclosed and therefore granting leave to amend those claims would be futile, but

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the Court will grant leave to amend Claim 4.
Shetty’s request to amend to add Bank of America as a defendant is GRANTED, but only

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as to Claim 4 for quiet title. While the Court is reluctant to require yet another entity to respond to

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claims which Shetty has not yet alleged with sufficient factual specificity to go forward, Shetty’s

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counsel asserts that he can present the claim more effectively than Shetty was able to do as a pro

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se litigant. Given Shetty’s prior pro se status, and the liberal standards governing amendment, the

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Court finds that leave to amend to add Bank of America as a defendant is warranted.
Accordingly, the request for leave to amend to add Bank of America as a defendant is

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GRANTED, with such leave limited to his current Claim 4 for quiet title.
IV.

ORDER

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(1)

Judge Cousins’ Report and Recommendation is ADOPTED IN PART;

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(2)

Defendant America’s Wholesale Lender is DISMISSED from this action without
prejudice for failure to effect service of process as required under Rule 4(m);

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(3)

As to Defendants The Bank of New York Mellon, Bayview Loan Servicing, LLC,
and Klinedinst PC, Claims 1, 2, 3, 5, 6, and 7 of the SAC are DISMISSED
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WITHOUT LEAVE TO AMEND, and Claim 4 of the SAC is DISMISSED WITH

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LEAVE TO AMEND;

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(4)

Shetty’s request for leave to amend to add Bank of America as a defendant is
GRANTED, but only as to his current Claim 4 for quiet title;

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(5)

Any amended pleading shall be filed on or before April 15, 2019;

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(6)

Shetty may not add any additional claims or parties, other than those expressly

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authorized in this order, without prior leave of the Court. If he does so, his

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amended pleading will be stricken; and

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(7)

The Case Management Conference set for April 4, 2019 is CONTINUED to July
18, 2019.

United States District Court
Northern District of California

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Dated: March 25, 2019
______________________________________
BETH LABSON FREEMAN
United States District Judge

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