Bellinger v. Wells Fargo Bank, N.A.
| Decision Date | 13 November 2014 |
| Docket Number | Case No. 1:14-cv-01076-JAM-BAM |
| Court | U.S. District Court — Eastern District of California |
| Parties | MARK BELLINGER, Plaintiff, v. WELLS FARGO BANK, N.A.; QUALITY LOAN SERVICE CORP.; U.S. BANK NATIONAL ASSOCIATION, Defendants. |
Plaintiff Mark Bellinger ("Plaintiff or Bellinger"), proceeding pro se, filed this foreclosure related action on July 10, 2014. (Doc. 1.)1 Presently pending before the Court is the Motion to Dismiss filed by Defendants Wells Fargo Bank, N.A., and U.S. Bank National Association, and joined by Quality Loan Service Corp ("Defendants"). (Docs. 8, 19.) Defendants move to dismiss Plaintiff's complaint for failure to state a claim. (Doc. 8). By order on September 19, 2014, the motion to dismiss was referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 through 304. The Court deemed the matter suitable for decision without oral argument pursuant toLocal Rule 230(g), and vacated the hearing scheduled for October 17, 2014. For the reasons stated below, Plaintiff fails to state a claim and the Court recommends that Defendants' Motion be GRANTED without leave to amend.
The theory underlying the totality of Plaintiff's complaint challenges the "entire California system of non-judicial foreclosure" and the foreclosure and sale of Plaintiff's residence located at 32 Harmonia Pointe Way, Copperpolis, California ("Property"). (Doc. 1.) On or about May 25, 2005, Plaintiff borrowed $455,100.00 from Wells Fargo Bank, N.A. and secured the loan by a Deed of Trust on the Property. On March 8, 2012, Defendant U.S. Bank, N.A. became a successor-in-interest to the Deed of Trust. (RJN Ex. B, Doc. 9-2). Plaintiff failed to make timely payments and ultimately defaulted on the loan. On September 26, 2013, a Notice of Default and Election to Sell Under Deed of Trust was recorded on the Property. (RJN Ex. D, Doc. 9-4). In the Notice of Default, Plaintiff was notified that he could bring his account current by paying $73,742.50. Id. Plaintiff failed to tender the full amount owed and on February 24, 2014, Defendants sold the Property at a public auction. A trustee's deed upon sale was recorded on March 5, 2014. (RJN Ex. F, Doc. 9)
On July 10, 2014, Plaintiff filed the instant action in this Court. In his Complaint, Plaintiff seeks to invalidate the foreclosure and have the Property returned to him. Plaintiff also requests monetary damages.
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. Rule Civ. Proc. 8(a)(2). Where the plaintiff fails to allege "enough facts to state a claim to relief that is plausible on its face," the complaint may be dismissed for failure to allege facts sufficient to state a claim upon which relief may be granted. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); see Fed.R.Civ.P. 12(b)(6). A dismissal for failure to state a claim is brought under Federal Rule of Civil Procedure Rule 12(b)(6) and may be based on the lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable legal theory. Johnson v.Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001).
When the court reviews a complaint under Rule 12(b)(6), all of the complaint's material allegations of fact are taken as true, and the facts are construed in the light most favorable to the non-moving party. Marceau v. Blackfeet Hous. Auth, 540 F.3d 916, 919 (9th Cir. 2008); Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir. 1999). However, the court need not accept conclusory allegations, allegations contradicted by exhibits attached to the complaint or matters properly subject to judicial notice, unwarranted deductions of fact, or unreasonable inferences. Daniels-Hall v. National Educ. Ass'n., 629 F.3d 992, 998 (9th Cir. 2010). Although they may provide the framework of a complaint, legal conclusions are not accepted as true and "[t]hreadbare recitals of elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972); Bretz v. Kelman, 773 F.2d 1026, 1027 n. 1 (9th Cir.1985). However, the court's liberal interpretation of a pro se litigant's pleading may not supply essential elements of a claim that are not plead. Pena v. Gardner, 976 F.2d 469, 471 (9th Cir.1992); Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir.1982). Furthermore, "[t]he court is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged." Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir.1994). Neither need the court accept unreasonable inferences, or unwarranted deductions of fact. W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.1981)).
If a Rule 12(b)(6) motion to dismiss is granted, claims may be dismissed with or without prejudice, and with or without leave to amend. "[A] district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc), quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995). In other words, leave to amend need not be granted when amendment would be futile. Gompper v. VISX, Inc., 298 F.3d 893, 898 (9th Cir. 2002).
Before evaluating Plaintiff's claims, the Court first turns to the requests for judicial notice by Defendants. Defendants have requested judicial notice of several documents: the Deed of Trust related to the subject property recorded with the Calaveras County Recorder on June 7, 2005 ( ); an Assignment of Deed of Trust, recorded with the Calaveras County Recorder on March 8, 2012 ("RJN Ex. B"); a Substitution of Trustee, recorded with the Calaveras County Recorder on June 26, 2013 2013 ("RJN Ex. C"); a Notice of Default, recorded with the Calaveras County Recorder on September 26, 2013 ("RJN Ex. D"); Notice of Trustee Sale, recorded with the Calaveras County Recorder on December 26, 2013 ("RJN Ex. E"); and a Trustee's Deed Upon Sale, recorded with the Calaveras County Recorder on March 5, 2014 ("RJN Ex. F"). Plaintiff opposes judicial notice of those exhibits.
Generally, the court considers only the complaint and attached documents in deciding a motion to dismiss, but the court may also take judicial notice of matters of public record without converting the motion into a motion for summary judgment. Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001). Federal Rule of Evidence 201(b) permits a court to "judicially notice a fact that is not subject to reasonable dispute because it: ¶ (1) is generally known within the trial court's territorial jurisdiction; or ¶ (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). Public records are properly the subject of judicial notice because the contents of such documents contain facts that are not subject to reasonable dispute; as public records, the facts therein "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b); Vargas v. Wells Fargo Bank, N.A., 2012 WL 2931220, *7 (N.D. Cal. July 18, 2012); see also Permito v. Wells Fargo Bank, 2012 WL 1380322, *2 (N.D. Cal. Apr. 20, 2012) ().
The exhibits offered by Defendant for judicial notice are all matters of public record, duly recorded with the Calaveras County Recorder. See RJN Exs. A - F. The fact of their recording can be"accurately and readily determined" because the accuracy of the source of the records—the Calaveras County Recorder— Fed. R. Evid. 201(b); Vargas v. Wells Fargo, 2012 WL 2931220 at *7. Rule 201(b) permits the court to take judicial notice of the dates, parties, and legally operative language of these documents because they are "not subject to reasonable dispute." Fed. R. Evid. 201(b); Vargas v. Wells Fargo, 2012 WL 2931220 at *7. The Court will therefore take judicial notice of the RJN exhibits. See Lee, 250 F.3d at 690. Defendants' request is GRANTED.
In a mix of federal and state law claims, Plaintiff (1) challenges the California statutory foreclosure scheme as constitutionally flawed and (2) argues that the non-judicial foreclosure sale of his residence is invalid. Plaintiff's federal and related claims fail to state a facially plausible claim for relief and should therefore be dismissed. Further, Plaintiff's remaining state law claim should be dismissed for lack of subject matter jurisdiction.
Plaintiff's Counts 1, 2, and 3 challenge the constitutionality of California's non-judicial foreclosure statutory scheme including California Civil Code Sections 1714.10, 2924-2941, and California Code of Civil Procedure Section 405.21. Plaintiff argues that these statutes violate the Constitution and Plaintiff's rights on the basis of Due Process, Equal Protection, Freedom of Speech, and the constitutional right to a jury trial.2 Specifically, Count 1 asks the Court to "declare and adjudge that California Civil Code Sections 2924, et. seq are unconstitutional on their face." Compl. at pg. 15. Count 1 also alleges that "the non-judicial foreclosure statutes constitute a violation of an Infringement of the First, Fifth, Seventh, and...
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