Gail Willis v. Affinia Default Services, LLC ( 2019 )

O 1 2 3 4 5 6 7 8 United States District Court 9 Central District of California 10 11 GAIL WILLIS, Case № 2:19-cv-02440-ODW (SKx) 12 Plaintiff, ORDER GRANTING 13 v. 14 A FFINIA DEFAULT SERVICES, LLC MOTION TO DISMISS [9] et al., 15 Defendants. 16 17 I. INTRODUCTION & BACKGROUND 18 Plaintiff Gail Willis, proceeding pro se, brings this action against various 19 Defendants for multiple claims based on an alleged unlawful non-judicial foreclosure 20 sale of Willis’s real property located at 2015 Buckingham Road, Los Angeles, 21 California 90016 (the “Subject Property”). (Notice of Removal Ex. A (“Compl.”), at ¶ 22 11, ECF No. 1-1.) Defendant Wells Fargo Bank, N.A. (“Wells Fargo”) moves to 23 dismiss Willis’s Complaint. (Mot. to Dismiss (“Mot.”), ECF No. 9.) For the reasons 24 that follow, the Court GRANTS Wells Fargo’s Motion.1 25 26 27 28 1 After carefully considering the papers filed in connection with the Motion, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. 1 II. LEGAL STANDARD 2 A court may dismiss a complaint under Rule 12(b)(6) for lack of a cognizable 3 legal theory or insufficient facts pleaded to support an otherwise cognizable legal 4 theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). To 5 survive a dismissal motion, a complaint need only satisfy the minimal notice pleading 6 requirements of Rule 8(a)(2)—a short and plain statement of the claim. Porter v. 7 Jones, 319 F.3d 483, 494 (9th Cir. 2003). The factual “allegations must be enough to 8 raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 9 U.S. 544, 555 (2007). That is, the complaint must “contain sufficient factual matter, 10 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. 11 Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). 12 The determination of whether a complaint satisfies the plausibility standard is a 13 “context-specific task that requires the reviewing court to draw on its judicial 14 experience and common sense.” Id. at 679. A court must construe all “factual 15 allegations set forth in the complaint . . . as true and . . . in the light most favorable” to 16 the plaintiff. Lee v. City of Los Angeles, 250 F.3d 668, 679 (9th Cir. 2001). However, 17 a court need not blindly accept conclusory allegations, unwarranted deductions of fact, 18 and unreasonable inferences. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 19 (9th Cir. 2001). Pro se pleadings are to be construed liberally, but a plaintiff must still 20 present factual allegations sufficient to state a plausible claim for relief. See Hebbe v. 21 Pliler, 627 F.3d 338, 341 (9th Cir. 2010). A court may not “supply essential elements 22 of the claim that were not initially pled.” Pena v. Gardner, 976 F.2d 469, 471 (9th 23 Cir. 1992). A liberal reading cannot cure the absence of such facts. Ivey v. Bd. of 24 Regents of Univ. Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 25 III. DISCUSSION 26 Wells Fargo moves to dismiss Willis’s Complaint on the grounds that she lacks 27 standing and fails to state a claim as to each cause of action. One week before the 28 hearing set for the Motion, Willis submitted a late-filed Opposition to the Motion. 1 (See generally Opp’n to Mot. (“Opp’n), ECF No. 13.) Notwithstanding the timeliness 2 issue, Willis’s Opposition makes several improper requests such as requesting a 3 remand and the addition of another party, among other requests. (See Opp’n 2, 27.) 4 As these requests are not properly before the Court, the Court declines to address 5 them. Willis’s Opposition does not substantively oppose the Motion; instead, she 6 asserts the same conclusory allegations that plague her Complaint. (See generally 7 Opp’n.) The Court finds that Willis lacks standing to bring the claims asserted, and 8 therefore does not reach Wells Fargo’s remaining arguments. 9 A. Request for Judicial Notice 10 Wells Fargo requests judicial notice of ten documents: Exhibit A: Adjustable 11 Rate Mortgage Note; Exhibit B: Deed of Trust; Exhibit C: Home Affordable 12 Modification Agreement; Exhibit D: Certificate of Corporate Existence; Exhibit E: 13 Letter from Office of Thrift Supervision; Exhibit F: Official Certification of the 14 Comptroller of Currency; Exhibit G: Notice of Default and Election to Sell Under 15 Deed of Trust; Exhibit H: Substitution of Trustee; Exhibit I: Notice of Trustee’s Sale; 16 and Exhibit J: Trustee’s Deed Upon Sale. (Req. for Judicial Notice 2–3, ECF No. 10.) 17 Willis does not oppose Wells Fargo’s request. 18 A court is generally limited to the pleadings in ruling on a Rule 12(b)(6) motion 19 but may consider documents incorporated by reference in the complaint or properly 20 subject to judicial notice without converting a motion to dismiss into one for summary 21 judgment. See Lee, 250 F.3d at 688–89. “[A] court may judicially notice a fact that is 22 not subject to reasonable dispute because it: (1) is generally known within the trial 23 court’s territorial jurisdiction; or (2) can be accurately and readily determined from 24 sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). A 25 document may be incorporated by reference where neither party disputes its 26 authenticity and the pleading necessarily relies on the document. See Marder v. 27 Lopez, 450 F.3d 445, 448 (9th Cir. 2006). 28 1 The Deed of Trust, Notice of Default and Election to Sell Under Deed of Trust, 2 Substitution of Trustee, Notice of Trustee’s Sale, and Trustee’s Deed Upon Sale are 3 properly subject to judicial notice because they are undisputed public documents 4 recorded by the Los Angeles County Recorder’s Office. See, e.g., Grant v. Aurora 5 Loan Servs., Inc., 736 F. Supp. 2d 1257, 1264 (C.D. Cal. 2010) (collecting cases 6 granting judicial notice of documents recorded by the County Recorder’s Office). 7 Accordingly, the Court takes judicial notice of the Deed of Trust, Notice of Default 8 and Election to Sell Under Deed of Trust, Substitution of Trustee, Notice of Trustee’s 9 Sale, and Trustee’s Deed Upon Sale. As neither party disputes the authenticity of the 10 records, and as Willis includes these documents in her Complaint (with the exception 11 of the Trustee’s Deed Upon Sale), they may also be considered under the 12 incorporation by reference doctrine. See Marder, 450 F.3d at 448 (internal quotation 13 marks omitted) (“The court may treat such a document as part of the complaint, and 14 thus may assume that its contents are true for the purposes of a motion to dismiss.”). 15 B. Standing 16 Wells Fargo contends that Willis is not a real party-in-interest with respect to 17 the Subject Property because she was neither a party to the loan nor a record owner of 18 the Subject Property. (Mot. 3–4.) Willis does not adequately address the issue of 19 standing. Instead, Willis states that she “is the daughter and intended third party 20 beneficiary of the [loan agreement]” and “the executor [of] Henrietta Willis’ Estate.” 21 (Opp’n 6.) 22 Standing requires that: (1) the plaintiff has suffered an injury in fact, i.e., “an 23 invasion of a legally protected interest that is concrete and particularized and actual or 24 imminent, not conjectural or hypothetical”; (2) the injury is “fairly traceable to the 25 challenged conduct of the defendant”; and (3) the injury is “likely to be redressed by a 26 favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547–48 (2016) 27 (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)) (internal quotation 28 marks omitted). A plaintiff “cannot rest his claim to relief on the legal rights or 1 interests of third parties.” Warth v. Seldin, 422 U.S. 490, 499 (1975). Accordingly, “a 2 plaintiff who is not a party to a mortgage loan cannot assert a claim . . . for statutory 3 violations, wrongful foreclosure . . . or related foreclosure proceedings.” Bianchi v. 4 Bank of Am., N.A., No. 12-CV-750-MMA (MDD), 2012 WL 11946982, at *1 (S.D. 5 Cal. May 17, 2012) (citing Kruso v. Int’l Tel. & Tel. Corp., 872 F.2d 1416, 1427 (9th 6 Cir. 1989) (holding that the plaintiffs lacked standing for claims that arose out of the 7 transactions at issue because the plaintiffs were not parties to those transactions)). 8 Only a borrower or her assignee may bring a claim based on the underlying 9 mortgage. See Pena v. Ocwen Loan Servicing, LLC, No. CV 17-2437 FMO (GJSx), 10 2018 WL 5857983, at *4 (C.D. Cal. Apr. 23, 2018) (finding that the plaintiff lacked 11 standing to bring claims regarding the loan handling and property foreclosure because 12 he was neither the borrower nor the owner of the property); Shetty v. ARLP 13 Securitization Tr. Series 2014-2, No. CV-16-05467-BRO (GJSx), 2016 WL 10999324, 14 at *6 (C.D. Cal. Oct. 28, 2016) (dismissing claims including quiet title because the 15 plaintiff was not the borrower or assignee). Plaintiffs may seek to quiet title “only if 16 they currently possess an interest in the property at issue.” Jacobsen v. Aurora Loan 17 Servs., LLC, 661 F. App’x 474, 476 (9th Cir. 2016) (citing Gerhard v. Stephens, 68 18 Cal. 2d 864, 918 (1968)). 19 Here, the documents incorporated by reference and judicially noticed contradict 20 Willis’s conclusory claim of ownership. Willis does not identify how she obtained 21 title to the Subject Property or is the real party-in-interest. The recorded Deed of Trust 22 lists “Henrietta E Willis, Trustee of the Henrietta E Willis Revocable Living Trust” as 23 the sole borrower and signatory. (Req. for Judicial Notice Ex. B.) The initials 24 “H.E.W.” appear at the bottom of each page of the Deed of Trust. Additionally, the 25 Deed of Trust was executed by “Henrietta E Willis, Trustee.” (Id.) The Deed of Trust 26 and related documents demonstrate conclusively that Willis is not the borrower on the 27 loan and has no interest in the loan or the Subject Property. 28 1 As each of Willis’s claims arise from the non-judicial foreclosure and loan 2 || transaction involving Henrietta E. Willis, Willis lacks standing to pursue her claims. 3||C. Leave to Amend 4 Where a district court grants a motion to dismiss, it should generally provide 5 || leave to amend unless it is clear the complaint could not be saved by any amendment. 6 || See Fed. R. Civ. P. 15(a); Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 7] 1025, 1031 (9th Cir. 2008). Leave to amend may be denied when “the court 8 | determines that the allegation of other facts consistent with the challenged pleading 9 || could not possibly cure the deficiency.” Schreiber Distrib. Co. v. Serv-Well Furniture 10 || Co., 806 F.2d 1393, 1401 (9th Cir. 1986). Thus, leave to amend “is properly 11 || denied . . . if amendment would be futile.” Carrico v. City and Cty. of San Francisco, 12 | 656 F.3d 1002, 1008 (9th Cir. 2011). 13 Willis requests leave to amend but does not identify what facts she can allege to cure her deficiencies. However, considering Willis’s pro se status, the Court finds 15 || leave to amend proper. Among other issues, Willis’s amended complaint should 16 || address the issue of standing as discussed in this Order. 17 IV. CONCLUSION 18 For the reasons discussed above, the Court GRANTS Wells Fargo’s Motion to 19 | Dismiss Willis’s Complaint (ECF No. 10). Willis shall have up to and including 20 || September 5, 2019, to file her amended complaint. 21 IT IS SO ORDERED. 22 23 August 15, 2019 24 ig OTIS D. WRIGHT, II 7 UNITED STATES DISTRICT JUDGE 28