1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CEDRIC ARMSTRONG-HARRIS, Case No. 21-cv-07637-HSG
8 Plaintiff, ORDER GRANTING IN PART AND 9 v. DENYING IN PART MOTION TO DISMISS FIRST AMENDED 10 WELLS FARGO BANK, N.A., et al., COMPLAINT 11 Defendants. Re: Dkt. No. 33
12 13 This is a pro se action filed by Plaintiff Cedric Armstrong-Harris. Defendant Wells Fargo 14 Bank, N.A. moves to dismiss the First Amended Complaint. Dkt. No. 33 (“Mot.”). For the 15 reasons below, the Court GRANTS IN PART and DENIES IN PART the motion.1 16 I. BACKGROUND 17 Plaintiff brings this lawsuit against Defendants Wells Fargo and Specialized Loan 18 Servicing. See Dkt. No. 32 (“FAC”). Plaintiff’s amended complaint alleges the following: 19 Plaintiff is the fee simple owner of a residential property in Oakland, California. Id. at 2, 20 13. In March 2007, a loan was taken out on the property and issued by World Savings Bank, 21 which was later acquired by Wells Fargo. Id. at 2. Plaintiff entered into a loan modification 22 agreement with Wells Fargo in January 2015, thinking it would reduce the monthly mortgage 23 payment. Id. at 3. In June 2021, Specialized Loan Servicing demanded payment of the remaining 24 loan balance under the loan’s terms. Id. At some point, Plaintiff attempted to negotiate another 25 loan modification agreement to reduce his monthly mortgage payment, but the parties never 26 27 1 entered into an agreement. Id. at 7, 15, 16, 19. Defendants eventually initiated foreclosure 2 proceedings on the property. Id. at 19, 20–21. 3 Plaintiff initially sued Wells Fargo and Specialized Loan Servicing in Alameda County 4 Superior Court in July 2021. Dkt. No. 1, ¶ 1, Ex. A. Wells Fargo removed the case to this Court, 5 Dkt. No. 1, and the Court granted in part and denied in part Wells Fargo’s motion to dismiss, Dkt. 6 No. 28. Plaintiff filed an amended complaint, bringing causes of action for (1) violations of the 7 UCL under the unlawful prong, (2) slander of title, (3) alter ego liability, (4) violations of the UCL 8 under the fraudulent prong, (5) violation of the Home Ownership Equity Protection Act 9 (“HOEPA”), (6) predatory lending and violations of the Truth in Lending Act (“TILA”), (7) 10 defamation, (8) false light, (9) cancellation (10) cancellation of a voidable contract, and (11) 11 intentional misrepresentation. FAC at 11–23. Defendant now moves to dismiss all claims and to 12 strike the fifth cause of action. See Mot. at 1. 13 II. LEGAL STANDARD 14 Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain “a short and plain 15 statement of the claim showing that the pleader is entitled to relief.” While a complaint need not 16 contain detailed factual allegations, facts pleaded by a plaintiff must be “enough to raise a right to 17 relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To 18 survive a Rule 12(b)(6) motion to dismiss, a complaint must contain sufficient factual matter that, 19 when accepted as true, states a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 20 678 (2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows 21 the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 22 Id. While this standard is not a probability requirement, “[w]here a complaint pleads facts that are 23 merely consistent with a defendant’s liability, it stops short of the line between possibility and 24 plausibility of entitlement to relief.” Id. (internal quotation marks and citation omitted). In 25 determining whether a plaintiff has met this plausibility standard, the Court must “accept all 26 factual allegations in the complaint as true and construe the pleadings in the light most favorable” 27 to the plaintiff. Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). 1 A “document filed pro se is to be liberally construed and a pro se complaint, however 2 inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by 3 lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citations 4 omitted). 5 III. DISCUSSION 6 A. Fraudulent Business Practices Under the UCL 7 Plaintiff’s claim under the fraudulent prong of the UCL is the only claim that survived the 8 last motion to dismiss. See Dkt. No. 28 at 5, 13. Defendant argues that Plaintiff has materially 9 revised this claim, such that it now fails. See Mot. at 7–8. But while Plaintiff has relocated the 10 key allegations the Court relied on to a different section of the complaint, for reasons unclear to 11 the Court, they still remain. See FAC at 19 (listing alleged fraudulent business practices). Given 12 the liberal standard for pro se pleadings, the Court will not dismiss a claim it already deemed 13 adequately pled just because those allegations are now located elsewhere.2 Defendant’s motion as 14 to this claim is DENIED. 15 B. Home Ownership Equity Protection Act Claim 16 Wells Fargo moves to strike Plaintiff’s fifth cause of action for violation of HOEPA, which 17 was not in the initial complaint, as improperly added. See Mot. at 6. The Court explicitly 18 instructed Plaintiff not to add new claims to any amended complaint without Wells Fargo’s 19 consent or leave of Court. Dkt. No. 28 at 13. Plaintiff has neither, so the addition of the HOEPA 20 claim is impermissible. Moreover, it appears the claim is time-barred and that Plaintiff has not 21 pled any facts showing his loan qualified for HOEPA protection. Thus, the Court GRANTS 22 Defendant’s request to strike the HOEPA claim. 23 C. Time-Barred Claims 24 In its order on the last motion to dismiss, the Court found Plaintiff’s predatory lending and 25 TILA violation claim, as well as the UCL claim predicated on those violations, time-barred. See 26 2 The paragraphs of the complaint are jumbled with nonsequential numbering, but it appears the 27 inclusion of the allegations related to the fraudulent prong of the UCL in the defamation section 1 Dkt. No. 28 at 4–5, 8–9. In the amended complaint, Plaintiff has not offered any new allegations 2 that would affect the analysis of the applicable statute of limitations, such as facts supporting 3 equitable tolling, delayed discovery, or due diligence. See id. at 8–9; King v. State of Cal., 784 4 F.2d 910, 915 (9th Cir. 1986) (“[T]he doctrine of equitable tolling may, in the appropriate 5 circumstances, suspend the limitations period until the borrower discovers or had reasonable 6 opportunity to discover the fraud or nondisclosures that form the basis of the TILA action.”). 7 Thus, the Court incorporates its prior analysis, Dkt. No. 28 at 4–5, 8–9, and DISMISSES 8 Plaintiff’s predatory lending and TILA claim, as well as the UCL claim to the extent it is 9 predicated on those alleged violations. 10 D. Remaining Claims 11 For the remaining claims, Plaintiff has also failed to allege any new facts to address the 12 deficiencies raised in the Court’s prior order. Plaintiff has only shuffled several paragraphs 13 around and added politicians’ negative comments about Wells Fargo. See, e.g., FAC at 9–10. But 14 the comments do not bear directly on Plaintiff’s case, and rearranging allegations is not a fix.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CEDRIC ARMSTRONG-HARRIS, Case No. 21-cv-07637-HSG
8 Plaintiff, ORDER GRANTING IN PART AND 9 v. DENYING IN PART MOTION TO DISMISS FIRST AMENDED 10 WELLS FARGO BANK, N.A., et al., COMPLAINT 11 Defendants. Re: Dkt. No. 33
12 13 This is a pro se action filed by Plaintiff Cedric Armstrong-Harris. Defendant Wells Fargo 14 Bank, N.A. moves to dismiss the First Amended Complaint. Dkt. No. 33 (“Mot.”). For the 15 reasons below, the Court GRANTS IN PART and DENIES IN PART the motion.1 16 I. BACKGROUND 17 Plaintiff brings this lawsuit against Defendants Wells Fargo and Specialized Loan 18 Servicing. See Dkt. No. 32 (“FAC”). Plaintiff’s amended complaint alleges the following: 19 Plaintiff is the fee simple owner of a residential property in Oakland, California. Id. at 2, 20 13. In March 2007, a loan was taken out on the property and issued by World Savings Bank, 21 which was later acquired by Wells Fargo. Id. at 2. Plaintiff entered into a loan modification 22 agreement with Wells Fargo in January 2015, thinking it would reduce the monthly mortgage 23 payment. Id. at 3. In June 2021, Specialized Loan Servicing demanded payment of the remaining 24 loan balance under the loan’s terms. Id. At some point, Plaintiff attempted to negotiate another 25 loan modification agreement to reduce his monthly mortgage payment, but the parties never 26 27 1 entered into an agreement. Id. at 7, 15, 16, 19. Defendants eventually initiated foreclosure 2 proceedings on the property. Id. at 19, 20–21. 3 Plaintiff initially sued Wells Fargo and Specialized Loan Servicing in Alameda County 4 Superior Court in July 2021. Dkt. No. 1, ¶ 1, Ex. A. Wells Fargo removed the case to this Court, 5 Dkt. No. 1, and the Court granted in part and denied in part Wells Fargo’s motion to dismiss, Dkt. 6 No. 28. Plaintiff filed an amended complaint, bringing causes of action for (1) violations of the 7 UCL under the unlawful prong, (2) slander of title, (3) alter ego liability, (4) violations of the UCL 8 under the fraudulent prong, (5) violation of the Home Ownership Equity Protection Act 9 (“HOEPA”), (6) predatory lending and violations of the Truth in Lending Act (“TILA”), (7) 10 defamation, (8) false light, (9) cancellation (10) cancellation of a voidable contract, and (11) 11 intentional misrepresentation. FAC at 11–23. Defendant now moves to dismiss all claims and to 12 strike the fifth cause of action. See Mot. at 1. 13 II. LEGAL STANDARD 14 Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain “a short and plain 15 statement of the claim showing that the pleader is entitled to relief.” While a complaint need not 16 contain detailed factual allegations, facts pleaded by a plaintiff must be “enough to raise a right to 17 relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To 18 survive a Rule 12(b)(6) motion to dismiss, a complaint must contain sufficient factual matter that, 19 when accepted as true, states a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 20 678 (2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows 21 the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 22 Id. While this standard is not a probability requirement, “[w]here a complaint pleads facts that are 23 merely consistent with a defendant’s liability, it stops short of the line between possibility and 24 plausibility of entitlement to relief.” Id. (internal quotation marks and citation omitted). In 25 determining whether a plaintiff has met this plausibility standard, the Court must “accept all 26 factual allegations in the complaint as true and construe the pleadings in the light most favorable” 27 to the plaintiff. Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). 1 A “document filed pro se is to be liberally construed and a pro se complaint, however 2 inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by 3 lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citations 4 omitted). 5 III. DISCUSSION 6 A. Fraudulent Business Practices Under the UCL 7 Plaintiff’s claim under the fraudulent prong of the UCL is the only claim that survived the 8 last motion to dismiss. See Dkt. No. 28 at 5, 13. Defendant argues that Plaintiff has materially 9 revised this claim, such that it now fails. See Mot. at 7–8. But while Plaintiff has relocated the 10 key allegations the Court relied on to a different section of the complaint, for reasons unclear to 11 the Court, they still remain. See FAC at 19 (listing alleged fraudulent business practices). Given 12 the liberal standard for pro se pleadings, the Court will not dismiss a claim it already deemed 13 adequately pled just because those allegations are now located elsewhere.2 Defendant’s motion as 14 to this claim is DENIED. 15 B. Home Ownership Equity Protection Act Claim 16 Wells Fargo moves to strike Plaintiff’s fifth cause of action for violation of HOEPA, which 17 was not in the initial complaint, as improperly added. See Mot. at 6. The Court explicitly 18 instructed Plaintiff not to add new claims to any amended complaint without Wells Fargo’s 19 consent or leave of Court. Dkt. No. 28 at 13. Plaintiff has neither, so the addition of the HOEPA 20 claim is impermissible. Moreover, it appears the claim is time-barred and that Plaintiff has not 21 pled any facts showing his loan qualified for HOEPA protection. Thus, the Court GRANTS 22 Defendant’s request to strike the HOEPA claim. 23 C. Time-Barred Claims 24 In its order on the last motion to dismiss, the Court found Plaintiff’s predatory lending and 25 TILA violation claim, as well as the UCL claim predicated on those violations, time-barred. See 26 2 The paragraphs of the complaint are jumbled with nonsequential numbering, but it appears the 27 inclusion of the allegations related to the fraudulent prong of the UCL in the defamation section 1 Dkt. No. 28 at 4–5, 8–9. In the amended complaint, Plaintiff has not offered any new allegations 2 that would affect the analysis of the applicable statute of limitations, such as facts supporting 3 equitable tolling, delayed discovery, or due diligence. See id. at 8–9; King v. State of Cal., 784 4 F.2d 910, 915 (9th Cir. 1986) (“[T]he doctrine of equitable tolling may, in the appropriate 5 circumstances, suspend the limitations period until the borrower discovers or had reasonable 6 opportunity to discover the fraud or nondisclosures that form the basis of the TILA action.”). 7 Thus, the Court incorporates its prior analysis, Dkt. No. 28 at 4–5, 8–9, and DISMISSES 8 Plaintiff’s predatory lending and TILA claim, as well as the UCL claim to the extent it is 9 predicated on those alleged violations. 10 D. Remaining Claims 11 For the remaining claims, Plaintiff has also failed to allege any new facts to address the 12 deficiencies raised in the Court’s prior order. Plaintiff has only shuffled several paragraphs 13 around and added politicians’ negative comments about Wells Fargo. See, e.g., FAC at 9–10. But 14 the comments do not bear directly on Plaintiff’s case, and rearranging allegations is not a fix. 15 Plaintiff has still not identified (1) how HOLA was violated, (2) a publication supporting slander 16 of title, (3) facts supporting alter ego liability; (4) a defamatory publication supporting defamation; 17 (5) a false or misleading publicity and actual malice supporting false light; (6) grounds for why the 18 deed of trust is void or voidable, (7) facts supporting cancellation of a voidable contract; or (8) 19 facts supporting the misrepresentation claim. The Court’s prior order described the elements of 20 each claim and explained what key elements were missing, but Plaintiff has not substantively 21 altered his complaint. Thus, the Court incorporates its prior analysis, Dkt. No. 28 at 3–13, and 22 DISMISSES Plaintiff’s remaining causes of action. 23 E. Leave to Amend 24 All dismissed claims are without leave to amend. In its last order, the Court warned 25 Plaintiff that failure to plead each claim with sufficient specificity, or to otherwise comply with its 26 order, would result in dismissal with prejudice. See Dkt. No. 28 at 13. But Plaintiff’s amended 27 complaint is not substantively different than the first and entirely fails to address the identified 1 and (2) must tailor his allegations and arguments to his own case and may not rely on cut-and- 2 pasted material that is not based on his own experience or that addresses arguments not made. Id. 3 at 13 n.3. Plaintiff did both here. In addition to adding the HOEPA claim without leave, Plaintiff 4 failed to meet his opposition deadline, then filed only a copy of the original opposition he filed in 5 response to the first motion to dismiss. Compare Dkt. No. 37 with Dkt. No. 23. The opposition 6 again appears to comprise nonresponsive copy-and-pasted arguments.3 Between the amended 7 complaint and the opposition, Plaintiff has not even hinted at facts that would fix the problems the 8 Court identified last time. 9 The Court is aware of Plaintiff’s pro se status and continues to construe his complaint 10 liberally. However, given Plaintiff’s failure to address any of the identified deficiencies in the 11 complaint for a single claim, respond to Wells Fargo’s arguments, or follow the Court’s 12 instructions, the Court is convinced that further attempt to amend would be futile. Akhtar v. Mesa, 13 698 F.3d 1202, 1212 (9th Cir. 2012) (“A district court should not dismiss a pro se complaint 14 without leave to amend unless it is absolutely clear that the deficiencies of the complaint could not 15 be cured by amendment.” (quotations omitted)); Zucco Partners, LLC v. Digimarc Corp., 552 16 F.3d 981, 1007 (9th Cir. 2009) (“[W]here the Plaintiff has previously been granted leave to amend 17 and has subsequently failed to add the requisite particularity to its claims, [t]he district court’s 18 discretion to deny leave to amend is particularly broad.” (quotations omitted)). 19 IV. CONCLUSION 20 The Court DENIES Defendant’s motion as to Plaintiff’s claim for violation of the fraud 21 prong of the UCL. The Court GRANTS Defendant’s motion to strike the HOEPA cause of 22 action. The Court GRANTS Defendant’s motion to dismiss all remaining claims without leave to 23 3 Plaintiff did not timely oppose the motion, and the Court issued an order to show cause why the 24 case should not be dismissed for failure to prosecute for the third time in the case. See Dkt. Nos. 16, 20, 36. Plaintiff now accuses Defense counsel of conspiring to get his case dismissed for 25 failure to prosecute. See Dkt. No. 37 at 6–7; Dkt. No. 38. Primarily, Plaintiff asserts that Defense counsel has failed to send him email notifications. The Court notes that Plaintiff may create a 26 PACER account and sign up to e-file documents, which would allow him to receive and review filings immediately on any computer. Instructions for self-registration for pro se litigants can be 27 found at https://cand.uscourts.gov/cases-e-filing/cm-ecf/setting-up-my-account/e-filing-self- 1 amend. The Court further SETS a telephonic case management conference on May 2, 2023, at 2 || 2:00 p.m. All counsel shall use the following dial-in information to access the call: 3 Dial-In: 888-808-6929; 4 Passcode: 6064255 5 For call clarity, parties shall NOT use speaker phone or earpieces for these calls, and where 6 || at all possible, parties shall use landlines. All attorneys and pro se litigants appearing for a 7 telephonic case management conference are required to dial in at least 15 minutes before the 8 || hearing to check in with the CRD. The Court DIRECTS the parties to meet and confer and 9 submit a joint case management statement, or separate statements, by April 25, 2023. The parties 10 should be prepared to discuss how to move this case forward efficiently. 11 The Court encourages Plaintiff to seek the assistance of the free Legal Help Center 12 || operated by the Bar Association of San Francisco. The Legal Help Center sets up appointments to 5 13 speak with a lawyer for basic legal help, but does not provide legal representation. Appointments 14 || can be scheduled by emailing fedpro@sfbar.org or by calling (415) 782-8982. Plaintiff may wish 3 15 to consult resources available on the Court’s website, at https://cand.uscourts.gov/pro-se-litigants/, 16 || for people who are representing themselves without a lawyer. IT IS SO ORDERED. 18 || Dated: 4/11/2023 19
HAYWOOD S. GILLIAM, JR. United States District Judge 22 23 24 25 26 27 28