Goodman v. Wells Fargo Bank, N.A.

Filing 49

///ORDER granting 36 Motion to Dismiss; granting 37 Motion to Dismiss for Failure to State a Claim. So Ordered by Chief Judge Joseph N. Laplante.(gla)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE

Brian Goodman, Sr.
v.

Civil No. 17-cv-199-JL
Opinion No. 2018 DNH 189

Wells Fargo Bank, N.A. and
Golden West Financial Corp.

OPINION AND ORDER
This mortgage-fraud case involves two properties in
Concord, New Hampshire that have been sold at foreclosure.

Pro

se plaintiff Brian Goodman, Sr. alleges that two mortgage
refinancing transactions in 2007 were the product of fraud
committed by defendants or their predecessors in interest.

His

Amended Complaint1 contains seven counts against two defendants:
1) fraudulent misrepresentation; 2) fraudulent concealment; 3)
fraudulent inducement; 4) conversion; 5) common law fraud; 6)
unjust enrichment; and 7) a request for injunctive relief.

The

court’s jurisdiction is based on diversity of citizenship.

28

U.S.C. § 1332(a).
Before the court are defendants’ motions to dismiss.2
Defendant Golden West argues that it merged out of legal

1

Doc. no. 34.

2

Doc. nos. 36 (Wells Fargo) and 37 (Golden West).

existence prior to the transactions at issue in this case and
thus can not be sued.

Defendant Wells Fargo Bank, N.A. advances

several grounds for dismissal.

After reviewing the parties’

submissions and state court litigation involving the same
parties and properties, and conducting oral argument, the court
grants both defendants’ motions.
capacity to be sued.

First, Golden West lacks the

See Fed. R. Civ. P. 17(b).

Next,

plaintiff’s claims against Wells Fargo are barred, in whole or
part, by: 1) the doctrines of res judicata and collateral
estoppel; and 2) the applicable statutes of limitations.
Defendants’ motions are therefore granted.

See Fed. R. Civ. P.

12(b)(6).

I.

Applicable legal standard
To withstand a motion to dismiss, the plaintiff must plead

“factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.”
2015).

Martinez v. Petrenko, 792 F.3d 173, 179 (1st Cir.

In ruling on such a motion, the court accepts as true

all well-pleaded facts set forth in the complaint and draws all
reasonable inferences in the plaintiff’s favor.

See, e.g.,

Martino v. Forward Air, Inc., 609 F.3d 1, 2 (1st Cir. 2010).

2

The court “may consider not only the complaint but also
facts extractable from documentation annexed to or incorporated
by reference in the complaint and matters susceptible to
judicial notice.”

Rederford v. U.S. Airways, Inc., 589 F.3d 30,

35 (1st Cir. 2009) (internal quotations omitted).

The court

“need not, however, credit bald assertions, subjective
characterizations, optimistic predictions, or problematic
suppositions,” and “[e]mpirically unverifiable conclusions, not
logically compelled, or at least supported, by the stated facts,
deserve no deference.”

Sea Shore Corp. v. Sullivan, 158 F.3d

51, 54 (1st Cir. 1998) (internal quotations omitted).

In

addition to relating the allegations in the Amended Complaint,
the court also culls background facts from the judicial findings
during the parties' prior proceedings.

See Kowalski v. Gagne,

914 F.2d 299, 305 (1st Cir. 1990) (“It is well-accepted that
federal courts may take judicial notice of proceedings in other
courts if those proceedings have relevance to the matters at
hand.”).

Finally, a motion to dismiss is an appropriate vehicle

for raising and deciding a statute of limitations defense.

See,

e.g., Abdallah v. Bain Capital LLC, 752 F.3d 114, 119 (1st Cir.
2014).

Guided by these standards, the court turns first to

plaintiff's allegations and the prior proceedings.

3

II.

Background

A. The properties
In November 2007, plaintiff refinanced two income
properties he owned in Concord, New Hampshire.

First, he

executed a note and mortgage in connection with his property at
26-28 Palm Street.3

The note had a face value of $185,000,

payable to “World Savings Bank, FSB, a Federal Savings Bank, its
successors and/or assigns, or anyone to whom this Note is
transferred.”4

It was secured by a mortgage granted to “World

Savings Bank, FSB, its successors and assigns.”5

The mortgage

was recorded at the Merrimack County Registry of Deeds.6
A few days later, plaintiff executed a note and mortgage in
connection with his property at 14-16 Pinecrest Circle.

This

note had a face value of $217,000, also payable to “World
Savings Bank . . . its successors and/or assignees, or anyone to
whom this note is transferred.”7

Plaintiff granted a mortgage to

secure the note to “World Savings Bank, its successors and/or

3

Amended Complaint (doc. no. 34) ¶ 24.

4

Id., Exh. C.

5

Id.

6

Id. ¶ 25.

7

Id. Exh. F.
4

assigns.”8

This mortgage was also recorded in the Rockingham

County Registry of Deeds.9
Plaintiff “disclaims both the authenticity and legitimacy”
of the notes and mortgages “derived through deceitful means and
filed in deceit with a state agency for purposes of
legitimizing” them.10

B. World Savings Bank merger
Effective December 31, 2007, World Savings Bank changed its
name to Wachovia Mortgage, FSB.

In 2009, Wachovia Mortgage, FSB

changed its name to Wells Fargo Southwest, N.A. and subsequently
merged with Wells Fargo Bank, N.A.

Both parties acknowledge

that defendant Wells Fargo Bank, N.A. is therefore the successor
in interest to World Savings Bank.11

See Park v. Wells Fargo

Bank, No., C 12–2065–PJH, 2012 WL 3309694, at *2 (N.D. Cal. Aug.
13, 2012) (“Numerous courts have . . . concluded that Wells
Fargo is the successor to Wachovia and World Savings.”); Nguyen
v. Wells Fargo Bank, N.A., 749 F. Supp. 2d 1022, 1035 (N.D. Cal.
2010) (“[T]he original lender, World Savings Bank, FSB, simply

8

Id.

9

Id. Exh. H.

10

Id. ¶¶ 25, 27.

11

See id. ¶ 31.
5

changed its name to Wachovia Mortgage, FSB, and is now a
division of Wells Fargo Bank, N.A. . . .”); DeLeon v. Wells
Fargo Bank, N.A., 729 F. Supp. 2d 1119, 1121 (N.D. Cal. 2010)
(“World Savings had changed its name to Wachovia Mortgage, FSB
and then merged into Wells Fargo Bank, N.A.”).
C. State court litigation
In 2010 or 2011, Wells Fargo began the process of
foreclosure of the two properties after plaintiff fell behind on
his mortgage payments.

After several years of litigation which

will be discussed in more detail below, the properties were sold
at foreclosure in 2017.12
1.

Pinecrest Circle

In February 2011, plaintiff, represented by counsel, sued
Wells Fargo in state court to permanently enjoin the impending
foreclosure sale of the Pinecrest Circle property.13

The Court

granted plaintiff temporary injunctive relief and plaintiff
began making mortgage payments pursuant to an agreement with

12

Amended Complaint (doc. no. 34) ¶ 62.

See Goodman v. Wells Fargo Bank, N.A., No. 11-CV-093,
(N.H. Super., May 14, 2015) (doc. no. 36-3 at 32).
13

6

Wells Fargo.14

Eventually, the payments stopped and foreclosure

proceedings resumed.15
In his state court Amended Complaint, filed in January
2015, plaintiff accused Wells Fargo of, inter alia, fraud.16

He

specifically alleged that Wells Fargo used false statements to
support its foreclosure efforts and that it was not the true
holder of the mortgage.17

The Superior Court found that

plaintiff's defenses to foreclosure were factually unsupported
and granted summary judgment in Wells Fargo's favor.18
In a three-paragraph order, the New Hampshire Supreme Court
affirmed the trial court’s summary judgment ruling.19

It

rejected, among others, the arguments that the Superior Court
erroneously concluded that “he defaulted on his mortgage loan to
the bank” and “that there were no genuine issues of material
fact regarding whether he had defaulted, the bank had a loan in
his name, the bank held the original note, and the note had

14

Id. at 34-35.

15

Id. at 35.

16

Doc. no. 36-3 at 15.

17

Id. at 15-18.

18

Id. at 38.

Goodman v. Wachovia Mortg., No. 2015-0415, 2016 WL
4099372 (N.H. June 14, 2016) (Doc. no. 36-3 at 79).
19

7

passed to it by operation of law.”20

The Supreme Court later

denied plaintiff's motion for reconsideration.21
2.

Palm Street

In March 2011, plaintiff, again represented by counsel,
sued Wells Fargo to enjoin the scheduled foreclosure on the Palm
Street property.22
foreclosure.23

The Court temporarily enjoined the

In addition to seeking the injunction, plaintiff

alleged in his five-count Amended Complaint24 that, inter alia,
Wells Fargo failed to create a valid mortgage because it failed
to pay off plaintiff's previous mortgage and because it
“securitized” plaintiff's mortgage and note.25

The latter

actions, according to plaintiff, “destroyed” the mortgage and

20

Id. at 79.

21

Id. at 81.

Goodman v. Wells Fargo Bank, N.A., No. 11-CV-135, (N.H.
Super. May 14, 2015) (Doc. no. 36-2 at 26).
22

23

Id.

24

Id. at 10-23.

Id. at 17-18. Securitization is “the creation of a
mortgage-backed security: mortgage loans are purchased from
lenders, bundled, and combined to create a single debt
instrument. Interests in this instrument can then be sold to
investors who enjoy the benefit of the revenue stream flowing
from the mortgage payments.” Culhane v. Aurora Loan Servs. Of
Nebraska, 708 F.3d 282, 286 n.1 (1st Cir. 2013).
25

8

note.26

Plaintiff also alleged that Wells Fargo violated New

Hampshire’s Consumer Protection Act, N.H. Rev. Stat. Ann. § 358A, by fraudulently misrepresenting various terms of the mortgage
agreement.27
On the same day that it granted summary judgment in the
Pinecrest suit, the Superior Court granted Wells Fargo's motion
to dismiss the Palm Street suit.

As particularly relevant to

this lawsuit, the Court held that “even if the note and mortgage
were securitized, their validity would not be destroyed as the
plaintiff suggests . . . . [S]ecuritization of the mortgage and
note does not relieve the plaintiff of his obligation to pay
under their terms and conditions.”28

The Court further found

that plaintiffs' fraud allegations were barred by New
Hampshire's three-year statute of limitations, N.H. Rev. Stat.
Ann. § 508:4.29

And even if timely, the Court ruled that

plaintiff's Amended Complaint failed to plead facts that
amounted to fraud.30

26

Id.

27

Id. at 18-22.

28

Id. at 29-30.

29

Id. at 33.

30

Id.
9

The New Hampshire Supreme Court affirmed the dismissal of
the Palm Street suit in a brief order.31

As particularly

relevant here, the Court rejected plaintiff's arguments that the
trial court erred in dismissing his fraud claim, his
securitization-related claim and his claim that Wells Fargo did
not hold the original note and mortgage.
III. Analysis
A. Golden West
In his Amended Complaint in this action, plaintiff added
Golden West Financial Corp. as a defendant.32

Golden West seeks

dismissal on the basis that it lacks the capacity to be sued,
having merged out of existence in 2006.33
The precise contours of plaintiff's claims against Golden
West are difficult to discern, beyond his noting that it was a
participant in securitizing mortgages, an act which, he claims,
forms the basis of his fraud allegations.

Golden West seeks

Goodman v. Wells Fargo Bank, N.A., No. 2015-0424, 2016 WL
4102081 (N.H. June 10, 2016). The Court also denied a
subsequent motion for reconsideration. Doc. no. 36-2 at 43.
31

32

Amended Complaint (doc. no. 34) ¶¶ 32-42.

As Golden West was eventually subsumed by Wells Fargo,
counsel for the latter moved on behalf of Golden West. Contrary
to plaintiff's numerous assertions, there is nothing nefarious
about, and no relevant inference to be drawn from, counsel’s
filing.
33

10

dismissal because it merged with Wachovia Corp. (and out of
existence) in October 2006, long before plaintiff filed this
lawsuit, and more than one year before the parties executed the
mortgages at issue in this case.34
lacks the capacity to be sued.

Thus, Golden West argues, it

See Fed. R. Civ. P. 17(b).

Pursuant to Fed. R. Civ. P. 17(b)(2), a corporation's
capacity to be sued is determined pursuant to the “law under
which it was organized.”

Similarly, “[t]he federal courts have

held that the capacity of a dissolved corporation to sue and be
sued is determined by the law of the state in which it was
organized.”

6A Charles Allen Wright, Arthur R. Miller & Mary

Kay Kane, Federal Practice and Procedure § 1563 (2010) (and
cases cited therein).

Golden West asserts, without objection,

that it was organized under the laws of California.35

Under

California law, following a merger, “the separate existence of
the disappearing corporation ceases and the surviving
corporation shall . . . be subject to all the debts and
liabilities of each in the same manner as if the surviving

34

Mem. of Law (doc. no. 37-1) at 6.

Golden West attached to its motion various documents
filed with the United States Securities and Exchange Commission.
Doc. nos. 37-2 - 37-5. The court takes judicial notice of these
public and undisputed documents. See Giragosian v. Ryan, 547
F.3d 59, 65 (1st Cir. 2008).
35

11

corporation had itself incurred them.”

Cal. Corp. Code §

1107(a).36
Plaintiff does not dispute that Golden West merged out of
existence before he filed this lawsuit.

Indeed, he acknowledges

that the mergers of Golden West with Wachovia and Wachovia with
Wells Fargo means that “all allegations and claims made against
World Savings Bank . . . Golden West and Wachovia are hereby
consolidated and directly lodged against Wells Fargo Bank, N.A.,
as successor in interest.”37

Rather than disputing the fact that

Golden West merged out of existence prior to the relevant events
in this case, plaintiff asserts that counsel's act of filing the
instant motion somehow resurrects the putative defendant.38

But

plaintiff cites no authority for this position, nor can the
court locate any.39

Accordingly, the entity formerly known as

While California law permits a pending action to proceed
against a “disappearing corporation,” Cal. Corp. Code § 1107(d),
it is undisputed that Golden West “disappeared” long before
plaintiff filed this suit.
36

37

Amended Complaint (doc. no. 34) ¶ 31.

38

Pltff. Obj. (doc. no. 42) at 5.

Plaintiff relies on cases holding that a general
appearance waives objections to personal jurisdiction. Pltff.
Obj. (doc. no. 42) at 5. As Golden West is not contesting
personal jurisdiction, those cases are inapposite. Plaintiff
further argues that if the “purported defendant” Golden West
“can gain relief thought this Court, than (sic) Plaintiff can
gain relief through that Defendant in this same forum. That is
how logic works – with or without the added dimension of the law
to cloud the issue.” Pltff. Surreply (doc. no. 46) at 3.
39

12

Golden West lacks the capacity to be sued and its motion to
dismiss must be granted.
B. Wells Fargo
Wells Fargo asserts several grounds for dismissal.

The

court addresses them in turn.
1.

Res judicata

Wells Fargo first argues that all of plaintiff's claims in
this lawsuit are barred by the doctrine of res judicata, based
on the two prior state court judgments.

As discussed in more

detail below, the state court rulings conclusively established
the non-fraudulent validity of both the Pinecrest and Palm
Street transactions.

Plaintiff's claims are therefore barred.

“Under federal law, a state court judgment receives the
same preclusive effect as it would receive under the law of the
state in which it was rendered.”

Dillon v. Select Portfolio

Servicing, 630 F.3d 75, 80 (1st Cir. 2011).

Under New Hampshire

law:
Res judicata precludes the litigation in a later case
of matters actually decided, and matters that could
have been litigated, in an earlier action between the
same parties for the same cause of action. For the
doctrine to apply, three elements must be met: (1) the
Whatever the merits of plaintiff's logic-based argument, the
court is required to apply the law. In the Court’s view, the
applicable law embodies and applies logic, and does not, as the
plaintiff suggests, cloud it.
13

parties must be the same or in privity with one
another; (2) the same cause of action must be before
the court in both instances; and (3) a final judgment
on the merits must have been rendered in the first
action.
Brooks, 161 N.H. at 690.

The defendant bears the burden of

establishing that res judicata bars plaintiff's claims, see
Dillon, 630 F.3d at 80.
The first factor is easily satisfied, as defendant Wells
Fargo, N.A. was also a defendant in both state court suits.

The

third factor is also satisfied, as both judgments were resolved
on summary judgment and affirmed on appeal.

The court finds

that this case also involves the same cause of action as the
Superior Court cases, and is therefore precluded by res
judicata.
In applying res judicata, New Hampshire law defines “cause
of action” to include “all rights to remedies with respect to
all or any part of the transactions, or series of connected
transactions, out of which the [first] action arose.”
v. Murray, 141 N.H. 265, 269 (1996).

Grossman

“Res judicata will bar a

second action even though the plaintiff is prepared in the
second action to present evidence or grounds or theories of the
case not presented in the first action.”
Family P'ship, 157 N.H. 530, 534 (2008).

14

Sleeper v. Hoban

Here, the “cause of action” is the question of the effect
and validity of plaintiff's 2007 loan and mortgage transactions.
The plaintiff's claims in this court are nearly identical to the
two state-court cases – contesting the validity of the mortgages
on the two Concord properties based on the alleged misfeasance
of Wells Fargo or its predecessors in interest.

In the Palm

Street litigation, plaintiff alleged that Wells Fargo had no
right to foreclose on the property because the securitization of
plaintiff's note and mortgage “destroyed” them.40

He also

alleged that Wells Fargo and its predecessors committed fraud by
inter alia, failing to disclose the terms of the mortgage loan
and by securitizing them without his permission.41

As previously

noted, the Superior Court dismissed plaintiff's claims, both
because they were untimely filed and because plaintiff “failed
to allege any fraudulent misrepresentation made by the
defendant.”42
Similarly, in the Pinecrest Circle litigation, plaintiff
challenged Wells Fargo's right to foreclose, alleging that he
did not default and that Wells Fargo did not legally hold the
note and mortgage.

His specific allegations again included

40

Doc. no. 36-2 at 18.

41

Id. at 20-22.

42

Id. at 34.
15

fraud.43

The Superior Court concluded that despite plaintiff's

allegations, he defaulted on the mortgage and that Wells Fargo
had the legal power to foreclose.44

And, as noted, the New

Hampshire Supreme Court affirmed both rulings.
In this case, plaintiff again claims that the two mortgages
are invalid as a result of actions taken by Wells Fargo or its
predecessors before, during, and after the execution of the
mortgages, including the Superior Court proceedings, in which
plaintiff alleges that defense counsel committed “fraud upon the
court” by making false statements.45

These are all allegations

that were, or could have been, raised in the Superior Court.
Plaintiff argues that res judicata does not apply because
“there is not even any need for this Court to review the state
court judgment.”46

He asserts that his federal “Complaint is

focused entirely upon the extrinsic fraud committed by World
Savings Bank, according to the business mission of its parent,
[Golden West], at the outset of the transaction, long before
litigation ever began, whereby it misrepresented and concealed

43

Doc. no. 36-3 at 15.

44

Id. at 38.

Pltff. Obj. (doc. no. 39) at 1; State Court Complaint
(doc. 36-3) at 26-28.
45

46

Pltff. Obj. (doc. no. 39) at 3.
16

material facts . . . .”47

Once again, if, as plaintiff contends,

the fraud occurred “at the outset of the [2007] transactions,”
then such fraud could have been alleged in the earlier
litigation.
Plaintiff's only direct response to defendant's res
judicata argument is that res judicata cannot apply:
“because the claims don't arise out of the same
transaction or occurrence. On one hand, there was
what was thought to be a legitimate transaction and on
the other there was no “factual transaction”. Res
judicata will not survive in the face of extrinsic
fraud whereby there was no formation of contract.
Fraud upon the court will result in the vacating of a
judgment obtained by that fraud upon the court which
in this case, revolves around supporting that
collateral extrinsic fraud. The claims made by
Plaintiff, in that they refer to avoid transaction
need no vacating of the judgment obtained by fraud.
The claims herein are for damages as a result of a
transaction executed in fraud and the harm done
through the associated unlawful conduct that takes the
form of torts and statutory wrongs. The foreclosures
did not happen and Plaintiff has no need to contest
the issue for purposes of this action. Details as to
the origination(s) had never been disputed because
Plaintiff did not know to dispute it, was prevented
from disputing it, even as there was terrible
wrongdoing and convoluted narratives arising
throughout the course of respective courses of
litigation which in turn gave way to suspicions.48
This argument fails because plaintiff either did, or could
have, raised these issues in the Superior Court cases.

47

Id. at 4.

48

Id. at 10-11.
17

Moreover, to the extent that plaintiff relies on information in
Golden West's 2005 Form 10-K,49 he offers no explanation as to
why any claims derived from that document could not have been
raised in litigation that did not end until almost ten years
after its publication.

As to claims in this lawsuit that

defense counsel allegedly committed fraud during the state court
litigation, plaintiff unsuccessfully argued in the state-court
litigation that Wells Fargo's counsel either fraudulently or
negligently filed false documents in the Superior Court.

Those

claims are, therefore, also barred.50
The purpose of the res judicata doctrine is “to avoid
repetitive litigation so that at some point litigation over a
particular controversy must come to an end.”

E. Marine Constr.

Corp. v. First S. Leasing, 129 N.H. 270, 273 (1987) (quoting
Bricker v. Crane, 118 N.H. 249, 252 (1978)).

Here, the court is

persuaded that all of the elements of res judicata are present:
the parties are the same; the prior litigation was resolved on
the merits; and, finally, the cause of action – the non-

49

Amended Complaint (doc. no. 34) ¶ 33.

See doc. 36-3 at 25-30. Arguably, plaintiff’s
allegations of defense counsel’s allegedly fraudulent actions in
the state court litigation are “issues,” rather than “causes of
action.” As such, they would be bared by collateral estoppel,
rather than res judicata. See infra, sec. III.B.2.
50

18

fraudulent validity of plaintiff’s mortgages – is identical.
See Dillon, 630 F.3d at 82 (“A second suit that contains
additional factual allegations does not necessarily arise from a
different factual transaction.”).

Accordingly, Wells Fargo is

entitled to dismissal on the basis of res judicata.

Although

this ruling is dispositive of the entire case, the court briefly
addresses some of the defendant's other asserted ground for
dismissal.
2.

Collateral estoppel

Even if plaintiff’s claims were not barred by res judicata,
collateral estoppel would preclude him from relitigating certain
issues, without which his claims would necessarily fail.
The doctrine of collateral estoppel, or issue preclusion,
“bars a party to a prior action, or a person in privity with
such party, from relitigating any issue or fact actually
litigated and determined in the prior action.”

412 S. Broadway

Realty, LLC v. Wolters, 169 N.H. 304, 314 (2016) (internal
quotation marks and citation omitted).

Collateral estoppel

applies when the following requirements are met:
(1) the issue subject to estoppel is identical in each
action; (2) the first action resolved the issue
finally on the merits; (3) the party to be estopped
appeared in the first action or was in privity with
someone who did; (4) the party to be estopped had a
full and fair opportunity to litigate the issue; and

19

(5) the finding at issue was essential to the first
judgment.
Id. (internal quotation marks and citation omitted).
At a minimum, the validity of the two mortgages, the fact
that plaintiff defaulted, and the right of Wells Fargo to
foreclose on the two properties were finally resolved on the
merits in the state court lawsuits.

With those facts no longer

in dispute, the essential foundation of plaintiff's federal
lawsuit – invalid mortgages – crumbles.

Accordingly, collateral

estoppel bars plaintiff's federal lawsuit.
3.

Statute of limitations

Even if plaintiff’s claims weren’t barred by res judicata
or collateral estoppel, they are untimely.
New Hampshire’s applicable statute of limitations provides:
all personal actions, except actions for slander or
libel, may be brought only within 3 years of the act
or omission complained of, except that when the injury
and its causal relationship to the act or omission
were not discovered and could not reasonably have been
discovered at the time of the act or omission, the
action shall be commenced within 3 years of the time
the plaintiff discovers, or in the exercise of
reasonable diligence should have discovered, the
injury and its causal relationship to the act or
omission complained of.51

51

N.H. Rev. Stat. Ann. § 508:4, I.
20

All of plaintiff’s claims stem from the origination of the two
mortgages in 2007, more than nine years before he filed suit.
Plaintiff argues that the limitations period should be
tolled “by virtue of extrinsic fraud perpetrated that took the
form of misrepresentation and concealment,” which delayed his
discovery of his “injury and its causal relationship to the act
or omission complained of.”52

But neither plaintiff’s Amended

Complaint nor his objection to the instant motion to dismiss
reference any “facts essential to the cause of action [that
were] fraudulently concealed,” as New Hampshire law requires in
order for a party to benefit from the fraudulent concealment
rule.

See Beane v. Dana S. Beane & Co., P.C., 160 N.H. 708, 714

(2010).
Plaintiff’s claims are in large part premised on
defendants’ alleged securitization and rehypothecation of his
loan.

He confirmed at oral argument that he learned of

defendants’ actions when he read Golden West’s 2005 Form 10-K in
2015 or 2016, roughly the same time period that he sent “Notices
of Recission” to Wells Fargo.

As noted, Wells Fargo disputes

that plaintiff's mortgage was securitized, but even accepting
plaintiff's allegations of securitization as true, as the court

52

Pltff. Obj. (doc. no. 39) at 15.
21

must do under Rule 12(b)(6), plaintiff alleges that Golden West
publicly disclosed that information two years before the
transactions at issue and more than 10 years before he filed
suit.

This is the opposite of concealment.

Plaintiff's claims

are therefore untimely.53

Even assuming that Wells Fargo’s failure to disclose its
intent to securitize or hypothecate plaintiff’s note and
mortgage could help plaintiff avoid the limitations bar, there
are two substantive defects in plaintiff’s argument that warrant
dismissal of his claims. First, “hypothecation” is defined in
terms of the lender’s use of the collateral pledged to secure a
debt. See Hypothecation, Investopedia (Sept. 9, 2018),
https://www.investopedia.com/terms/h/hypothecation.asp. The
Amended Complaint contains no allegations regarding the
collateral he pledged - his real property. Plaintiff provides
no legal authority for his argument that the notes were his
property.
53

Next, courts have routinely rejected the act of
securitization as a basis for a claim of wrongdoing or
actionable conduct. See, e.g., Bukhari v. T.D. Serv. Co., No.
1:10-cv-000578-GMN-PAL, 2010 WL 2762794, *5 (D. Nev. July 13,
2010) (“Plaintiff's conversion claim is without merit. . . .
[H]e was the maker of the promissory note.... As to [him], the
promissory note therefore represented an obligation, not
property or a right, and it is legally impossible for any
action with respect to the promissory note to constitute
conversion of anything owned by [him].”); Feller v. Indymac Mtg.
Servs., No. 09-5720 RJB, 2010 WL 342187, *3 (W.D. Wash. Jan. 26,
2010) (holding that plaintiff failed to state a claim for
conversion of a promissory note by her lender because “she has
an obligation to pay the bearer of the note, which was IndyMac
. . . The note is not property of the Plaintiff.”); Rieger v.
Wells Fargo Bank, N.A., No. 3:13–CV–00749 JSC, 2013 WL
3835815, *7 (N.D. Cal. July 23, 2013) (quoting Bukhari and
stating “[t]he same is true here”); see also, Andersen v.
LaSalle Bank, N.A., No. 15-30107-MGM, 2016 WL 3093375 at *5
(D. Mass. June 1, 2016) (Mastroianni, J.); (“While
securitization has many consequences, it did nothing to affect
Plaintiff's rights and obligations under the Note and
22

IV.

Conclusion
Plaintiff had a full and fair opportunity in the state

court to litigate his claims against Wells Fargo concerning the
validity of the two mortgage transactions at issue in this case.
Those claims were resolved against him, and may not be
relitigated in federal court.

Defendants’ motions to dismiss54

are GRANTED.55
SO ORDERED.

____________________________
Joseph N. Laplante
United States District Judge
Dated:
cc:

September 17, 2018

Brian J. Goodman, Sr., pro se
Joseph Patrick Kennedy, Esq.

Mortgage.”); Orellana v. Deutsche Bank Nat'l Trust Co., No. 1211982-NMG, 2013 WL 5348596 at *4 (D. Mass. Aug. 30 2013) (Boal,
M.J.) (“[S]ecuritization by itself does not render a foreclosure
invalid. . . . Orellana does not allege that he made
unsuccessful attempts to pay down his loan, and fails to cite to
any authority in support of his legal theories . . .
Accordingly, the securitization of Orellana's note, by itself,
does not support a claim for wrongful foreclosure.”) (Report and
Recommendation adopted by Gorton, J., Sept. 20, 2013).
54

Doc. nos. 36 and 37.

In addition to the three bases for dismissal discussed
herein, Wells Fargo asserted numerous other grounds which the
court declines to address.
55

23