Gutierrez v. Wells Fargo Bank, NA, 040615 FED9, 12-17271

Docket Nº:12-17271
Party Name:RONALD M. GUTIERREZ, on behalf of himself and all others similarly situated, Plaintiff - Appellant, v. WELLS FARGO BANK, NA, DBA Wells Fargo Home Mortgage, Inc. And WELLS FARGO REAL ESTATE TAX SERVICES, LLC, Defendants-Appellees.
Judge Panel:Before: O'SCANNLAIN, N.R. SMITH, and HURWITZ, Circuit Judges. N.R. SMITH, Circuit Judge, concurring in the judgment:
Case Date:April 06, 2015
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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RONALD M. GUTIERREZ, on behalf of himself and all others similarly situated, Plaintiff - Appellant,

v.

WELLS FARGO BANK, NA, DBA Wells Fargo Home Mortgage, Inc. And WELLS FARGO REAL ESTATE TAX SERVICES, LLC, Defendants-Appellees.

No. 12-17271

United States Court of Appeals, Ninth Circuit

April 6, 2015

          NOT FOR PUBLICATION

          Argued and Submitted December 12, 2014. San Francisco, California.

         Appeal from the United States District Court for the Northern District of California D.C. No. 3:12-cv-01135-SI, Susan Illston, Senior District Judge, Presiding

          Before: O'SCANNLAIN, N.R. SMITH, and HURWITZ, Circuit Judges.

          MEMORANDUM[*]

         Ronald Gutierrez appeals the district court's dismissal of his action for failure to state a claim. His claims turn on language contained in a Settlement Cost Booklet mandated by Department of Housing and Urban Development regulations and provided to him by Wells Fargo. The facts are known to the parties and will not be repeated here.

         The district court did not err when it concluded that Gutierrez failed to allege adequately that Wells Fargo's practices were contrary to the Booklet's language. The Booklet provides that the tax service fee "covers the cost of your lender engaging a third party to monitor and handle the payment of your property tax bills." It explains that "[t]his is done to ensure that your tax payments are made on time and to prevent tax liens from occurring." It also states that the tax service fee is "paid to a tax service provider for information on the real estate property tax." Gutierrez urges that Wells Fargo did not actually provide tax services because he paid his own property taxes in lieu of Wells Fargo maintaining an escrow account to pay those taxes.

         Gutierrez's allegations regarding Wells Fargo's business practices do not plausibly state a claim for relief. Gutierrez does not dispute that Wells Fargo monitors tax payments by borrowers who do not have escrow accounts to ensure that property tax payments are made on time and to prevent liens from occurring. His only contention is that Wells Fargo is required to do more than monitoring and verification if the services it provides are to be considered a "tax service." We conclude that the district court did not err when it held that Wells Fargo's practices are consistent with the Settlement Cost Booklet's unambiguous definition...

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