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G:\DOCS\FCD\Orders to Be Signed\Davis V. Wells Fargo Bank Case 2:09-cv-03028-FCD-GGH Document 45 Filed 04/29/10 Page 1 of 16 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 DAVID L. DAVIS and KAREN A. DAVIS, 13 Civ. No. S-09-3028 FCD/GGH Plaintiffs, 14 v. MEMORANDUM AND ORDER 15 WELLS FARGO BANK, N.A., a 16 Corporation, d/b/a AMERICA’S SERVICING COMPANY; NDEX WEST, 17 LLC, as duly appointed Trustee; MORTGAGEIT, INC., a 18 subsidiary of DEUTSCHE BANK SECURITIES, INC.; HSBC BANK 19 USA, N.A., as Trustee for MORTGAGEIT SECURITIES 20 CORPORATION; and Does 1-10, 21 Defendants. ____________________________/ 22 23 ----oo0oo---- 24 This matter is before the court on the motions of defendant 25 Wells Fargo Bank, N.A. (“Wells Fargo”) and defendants MortgageIT, 26 Inc. (“MortgageIT”) and Deutsche Bank Securities, Inc. (“Deutsche 27 Bank”) (collectively “defendants”) to dismiss plaintiffs David 28 Davis and Karen Davis’ (“plaintiffs”) First Amended Complaint 1 Case 2:09-cv-03028-FCD-GGH Document 45 Filed 04/29/10 Page 2 of 16 1 (“FAC”) pursuant to Federal Rule of Civil Procedure 12(b)(6). 2 Plaintiffs oppose the motion. For the reasons set forth below,1 3 defendants’ motions to dismiss are GRANTED. 4 BACKGROUND 5 Plaintiffs brought this action against defendants for 6 conduct arising out of a mortgage loan transaction. Plaintiffs 7 are the owners of real property located at 7920 Oak Forest 8 Street, Citrus Heights, California (the “Property”). (FAC, filed 9 Nov. 25, 2009, ¶ 7.) On February 26, 2007, plaintiffs refinanced 10 the Property through a mortgage loan with defendant MortgageIt. 11 (Id. ¶¶ 22-23.) At the time of closing, plaintiffs were provided 12 various documents, including a Notice of Right to Cancel. (Id. ¶ 13 24.) At some point after entering into the loan, plaintiffs 14 defaulted on the loan and a nonjudicial foreclosure proceeding 15 was initiated against the Property.2 (Docket # 25, Req. for 16 Judicial Notice (“RJN”), filed Dec. 23, 2009, Ex. E.) On 17 November 3, 2009, the Property was sold in connection with the 18 foreclosure proceedings.3 (Id.) 19 Plaintiffs allege that defendants did not provide all the 20 material disclosures regarding plaintiffs’ loan at the time of 21 1 Because oral argument will not be of material 22 assistance, the court orders these matters submitted on the briefs. E.D. Cal. L.R. 230(g). 23 2 Because of the complete sparsity of facts alleged in 24 plaintiffs’ FAC, the court has had to resort to various public records filed by defendants to establish the essential facts 25 pertinent to the motions. 26 3 Defendant NDEX West (“NDEX”), as duly appointed trustee under the deed of trust, conveyed the Property to defendant HSBC 27 Bank USA (“HSBC”) as trustee for defendant MortgageIT. NDEX joined defendant Wells Fargo’s motion to dismiss (Docket # 34), 28 and plaintiffs do not object. 2 Case 2:09-cv-03028-FCD-GGH Document 45 Filed 04/29/10 Page 3 of 16 1 signing as required by the Federal Truth in Lending Act (“TILA”), 2 giving plaintiffs up to three years to rescind the loan.4 (FAC 3 ¶¶ 29-30, 35.) Specifically, plaintiffs allege that the Notice 4 of Right to Cancel “failed in one or more material respects to 5 disclose . the [loan’s] true rescission period.” (Id. ¶ 29.) 6 Plaintiffs originally filed this action on October 29, 2009, 7 but amended their complaint on November 25, 2009.5 Based on the 8 alleged TILA violations, plaintiffs seek to (1) rescind the loan 9 transaction, and (2) obtain damages pursuant to 15 U.S.C. 10 § 1640(a)(2). Defendants move to dismiss plaintiffs’ FAC, 11 arguing, inter alia, that the express limitations set forth in 12 TILA bar plaintiffs’ rescission and damages claims. 13 STANDARDS 14 Under Federal Rule of Civil Procedure 8(a), a pleading must 15 contain “a short and plain statement of the claim showing that 16 the pleader is entitled to relief.” See Ashcroft v. Iqbal, 129 17 S. Ct. 1937, 1949 (2009). Under notice pleading in federal 18 court, the complaint must “give the defendant fair notice of what 19 the claim is and the grounds upon which it rests.” Bell Atl. 20 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotations 21 omitted). “This simplified notice pleading standard relies on 22 liberal discovery rules and summary judgment motions to define 23 4 Plaintiffs do not specify which defendant is 24 responsible for failing to provide the necessary disclosures. Instead, plaintiffs make a blanket allegation that “[a]ll 25 Defendants ratified this transaction with ineffective Notice of Right to Cancel.” (FAC ¶ 32.) 26 5 MortgageIT and Deutsche Bank also filed a motion to 27 strike concurrent with their motion to dismiss. (Docket # 21.) However, because the court grants defendants’ motions to dismiss, 28 it need not reach the motion to strike. 3 Case 2:09-cv-03028-FCD-GGH Document 45 Filed 04/29/10 Page 4 of 16 1 disputed facts and issues and to dispose of unmeritorious 2 claims.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). 3 On a motion to dismiss, the factual allegations of the 4 complaint must be accepted as true. Cruz v. Beto, 405 U.S. 319, 5 322 (1972). The court is bound to give plaintiff the benefit of 6 every reasonable inference to be drawn from the “well-pleaded” 7 allegations of the complaint. Retail Clerks Int’l Ass’n v. 8 Schermerhorn, 373 U.S. 746, 753 n.6 (1963). A plaintiff need not 9 allege “‘specific facts’ beyond those necessary to state his 10 claim and the grounds showing entitlement to relief.” Twombly, 11 550 U.S. at 570. “A claim has facial plausibility when the 12 plaintiff pleads factual content that allows the court to draw 13 the reasonable inference that the defendant is liable for the 14 misconduct alleged.” Iqbal, 129 S. Ct. at 1949. 15 Nevertheless, the court “need not assume the truth of legal 16 conclusions cast in the form of factual allegations.” United 17 States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th 18 Cir. 1986). While Rule 8(a) does not require detailed factual 19 allegations, “it demands more than an unadorned, the defendant- 20 unlawfully-harmed-me accusation.” Iqbal, 129 S. Ct. at 1949. A 21 pleading is insufficient if it offers mere “labels and 22 conclusions” or “a formulaic recitation of the elements of a 23 cause of action.” Id. at 1950 (“Threadbare recitals of the 24 elements of a cause of action, supported by mere conclusory 25 statements, do not suffice.”); Twombly, 550 U.S. at 555. 26 Moreover, it is inappropriate to assume that the plaintiff “can 27 prove facts which it has not alleged or that the defendants have 28 violated the . laws in ways that have not been alleged.” 4 Case 2:09-cv-03028-FCD-GGH Document 45 Filed 04/29/10 Page 5 of 16 1 Associated Gen. Contractors of Cal., Inc. v. Cal. State Council 2 of Carpenters, 459 U.S. 519, 526 (1983). 3 Ultimately, the court may not dismiss a complaint in which 4 the plaintiff has alleged “enough facts to state a claim to 5 relief that is plausible on its face.” Iqbal, 129 S. Ct. at 1949 6 (citing Bell Atl. Corp., 550 U.S. at 570). Only where a 7 plaintiff has failed to “nudge [his or her] claims across the 8 line from conceivable to plausible,” is the complaint properly 9 dismissed. Id. at 1952. While the plausibility requirement is 10 not akin to a probability requirement, it demands more than “a 11 sheer possibility that a defendant has acted unlawfully.” Id. at 12 1949. This plausibility inquiry is “a context-specific task that 13 requires the reviewing court to draw on its judicial experience 14 and common sense.” Id. at 1950. 15 In ruling upon a motion to dismiss, the court may consider 16 only the complaint, any exhibits thereto, and matters which may 17 be judicially noticed pursuant to Federal Rule of Evidence 201. 18 See Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 19 1988); Isuzu Motors Ltd. v. Consumers Union of U.S., Inc., 12 F. 20 Supp. 2d 1035, 1042 (C.D. Cal. 1998). 21 ANALYSIS 22 A. Defendants’ Exhibits 23 In ruling upon a motion to dismiss, the court may consider 24 matters which may be judicially noticed pursuant to Federal Rule 25 of Evidence 201. See Mir, 844 F.2d at 649; Isuzu Motors Ltd., 12 26 F. Supp. 2d at 1042. Rule 201 permits a court to take judicial 27 notice of an adjudicative fact “not subject to reasonable 28 dispute” because the fact is either “(1) generally known within 5 Case 2:09-cv-03028-FCD-GGH Document 45 Filed 04/29/10 Page 6 of 16 1 the territorial jurisdiction of the trial court or (2) capable of 2 accurate and ready determination by resort to sources whose 3 accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). 4 The court can take judicial notice of matters of public record, 5 such as pleadings in another action and records and reports of 6 administrative bodies. See Emrich v. Touche Ross & Co., 846 F.2d 7 1190, 1198 (9th Cir. 1988). 8 “Even if a document is not attached to a complaint, it may 9 be incorporated by reference into a complaint if the plaintiff 10 refers extensively to the document or the document forms the 11 basis of the plaintiff’s claim.” United States v.
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