Tag Archives: leave to amend

California Court Denies Plaintiffs’ Claims for Breach of Express Agreements, Breach of Implied Agreements, Slander of Title, Wrongful Foreclosure, and Violations of California Civil Codes

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The court in deciding Zapata v. Wells Fargo Bank, N.A., 2013 U.S. Dist. (N.D. Cal. Dec., 2013) dismissed the plaintiff’s action for failure to state a claim.

This action boiled down to an attempt made by the plaintiff to avoid foreclosure by attacking the mortgage securitization process. Plaintiffs Christopher and Elaine Zapata took out a promissory note and deed of trust with Family Lending Services, Inc. The deed of trust named S.P.S. Affiliates as trustee and MERS as nominee for the lender and as beneficiary.

Plaintiffs alleged a host of violations, including the claim that the defendants allegedly violated the terms of the deed of trust by executing an invalid and false notice of default because they were not the true lender or trustee.

Plaintiffs also alleged that the defendants violated the pooling and service agreement for the ARM Trust by failing to record the assignments. Also, Wells Fargo allegedly failed to sign the loan modification agreement or provide plaintiffs with a copy Wells Fargo had signed.

According to plaintiff, defendants also allegedly recorded invalid substitution of trustee, assignment of the deed of trust, and notice of default because of various alleged recording errors and delays. Plaintiffs also allege that defendants intentionally confused them.

Plaintiffs sought declaratory relief and claim breach of express agreements, breach of implied agreements, slander of title, wrongful foreclosure, violation of California Civil Code Section 2923.5, violation of California Civil Code Section 2923.55, violation of 18 U.S.C. 1962, and violation of California Business and Professions Code Section 17200 of California’s Unfair Competition Law.

As an initial matter the court noted that, courts in this district as well as the undersigned have rejected plaintiffs’ central underlying theory. Further, the court noted that neither their court of appeals nor the California Supreme Court had ruled on whether plaintiffs may challenge the mortgage securitization process, but the undersigned has held, in agreement with persuasive authority from this district, that there was no standing to challenge foreclosure based on a loan’s having been securitized.

Accordingly, after considering the plaintiff’s litany of claims, the court ultimately granted the defendant’s motion to dismiss.

Washington Court Dismisses Fair Debt Collection Practices Act and Washington Deed of Trust Act Violation Claims

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The court in deciding Dietz v. Quality Loan Serv. Corp., 2014 U.S. Dist. (W.D. Wash. Jan. 3, 2014) granted Wells Fargo and MERS’ motion to dismiss.

This action involved is a post-sale wrongful foreclosure case. Plaintiff Timothy Dietz alleged causes of action for violation of the Fair Debt Collection Practices Act (FDCPA)(Counts I and IV) and violation of the Washington Deed of Trust Act (DTA)(Counts II and III).

The court in deciding this case noted that Dietz’s first and fourth causes of action were for violation of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692g(b) and 1692e(5) respectively. These causes of action did not mention MERS  and there was no allegation in the complaint that MERS engaged in any activities that could be construed as a “debt collection.” As such, this court dismissed the FDCPA causes of action against MERS.

Similarly, the court found that Dietz had not alleged facts that gave rise to a violation of the debt validation notice requirements. Dietz’s claim that that Wells Fargo violated 15 U.S.C. § 1641(g) by failing to notify him within 30 days after it purchased the Loan. Wells Fargo purchased the Loan in 2008 and the assignment was recorded in 2011. The court found that under either date, the claim was barred by FDCPA‘s one year statute of limitations, 15 U.S.C. § 1640(e), as this lawsuit was not filed until 2013.