Gold v. National Default Servicing Corporation

• Court: District Court, S.D. California
• Decided: October 5, 2022
• Docket: 3:22-cv-01232
• Status: Unknown

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 MICHELLE GOLD, as Trustee of the Case No.: 22-CV-1232 JLS (AGS) Michelle Gold Separate Property Trust 11 dated December 23, 2002, ORDER (1) GRANTING 12 DEFENDANTS’ REQUEST FOR Plaintiff, JUDICIAL NOTICE; (2) GRANTING 13 v. DEFENDANTS’ MOTION TO 14 DISMISS; AND (3) DENYING NATIONAL DEFAULT SERVICING PLAINTIFF’S EX PARTE 15 CORPORATION; U.S. BANK, NA, APPLICATION FOR TEMPORARY successor trustee to Bank of America, NA, 16 RESTRAINING ORDER as trustee, on behalf of the holders of the

17 WaMu Mortgage Pass-Through Certificates WMALT, Series 2007-OA2; (ECF Nos. 2, 2-2, 4 & 11-2) 18 SELECT PORTFOLIO SERVICING; and 19 DOES 1–25, 20 Defendants. 21 22 Presently before the Court are Defendants National Default Servicing Corporation 23 (“NDSC”); U.S. Bank, NA, successor trustee to Bank of America, NA, as trustee, on behalf 24 of the holders of the WaMu Mortgage Pass-Through Certificates WMALT, Series 2007- 25 OA2 (“USB”); and Select Portfolio Servicing’s (“SPS,” and collectively, “Defendants”) 26 Motion to Dismiss (“Mot.,” ECF No. 2) and Request for Judicial Notice in support of the 27 same (ECF No. 2-2). Plaintiff Michelle Gold, as Trustee of the Michelle Gold Separate 28 Property Trust dated December 23, 2002 (“Plaintiff”), filed a Response in Opposition to 1 (“MTD Opp’n,” ECF No. 14), and Defendants filed a Reply in Support of (“MTD Reply,” 2 ECF No. 15), Defendants’ Motion. Also before the court is Plaintiff’s Ex Parte Application 3 for Temporary Restraining Order and Order to Show Cause re: Preliminary Injunction 4 (“TRO Appl.,” ECF No. 4). Defendants filed a Response in Opposition to (“TRO Opp’n,” 5 ECF No. 11) Plaintiff’s TRO Application, as well as a Request for Judicial Notice in 6 support of the same (ECF No. 11-2). Plaintiff filed a Reply in support of the TRO 7 Application (“TRO Reply,” ECF No. 13). Having carefully considered the Parties’ 8 briefing, the facts and evidence, and the law, the Court GRANTS Defendants’ Requests 9 for Judicial Notice, GRANTS Defendants’ Motion, and DENIES Plaintiff’s TRO 10 Application. 11 BACKGROUND 12 This case concerns the real property located at 3342 Randy Lane, Chula Vista, 13 California 91908 (the “Property”). Complaint (“Compl.,” ECF No. 1-2) ¶ 20. The Property 14 is Plaintiff’s personal residence. Id. ¶ 4a. Plaintiff claims that, through a series of 15 fraudulent transfers, NDSC was named successor trustee under the deed of trust (“DOT”) 16 encumbering the Property. See id. ¶¶ 4–8. On May 4, 2022, two days before a planned 17 non-judicial foreclosure sale of the Property by NDSC, Plaintiff filed suit against 18 Defendants in the Superior Court of San Diego County. See generally id. The Complaint 19 alleges Defendants “illegally transferr[ed] Plaintiff’s property and legal rights to third 20 parties via forged documents”; “illegal[ly] disclos[ed] Plaintiff’s private and personal loan 21 documents to third parties”; “failed to apply over $16,000 of payments”; and “refuse[d] to 22 speak with Plaintiff regarding her requests for loan modification and/or loss mitigation.” 23 Id. ¶¶ 7–8. Plaintiff asserts causes of action for cancellation of written instruments, 24 fraudulent transfer, violation of the Real Estate Settlement Procedures Act (“RESPA”), and 25 quiet title. Id. ¶¶ 9–23. 26 Defendants removed the case to federal court on the basis of federal question 27 jurisdiction on August 22, 2022. See generally Notice of Removal (“Notice,” ECF No. 1). 28 In their Notice, Defendants contend that removal is proper because Plaintiff’s Complaint 1 “alleges claims under [RESPA], 12 U.S.C. § 2601, et seq.,” thus giving rise to original 2 jurisdiction under 28 U.S.C. § 1331, Notice ¶ 4, known as “federal question jurisdiction.” 3 Defendants NDSC and SPS then filed a Motion to Dismiss for failure to state a claim on 4 August 29, 2022, arguing that Plaintiff’s claims were “meritless” and that “Defendants and 5 their agents were lawfully entitled to service and collect on [Plaintiff’s] loan.” See 6 generally Mot.; Memorandum of Points and Authorities in Support of Motion to Dismiss 7 (“MPA,” ECF No. 2-1) at 5. Defendant USB later joined the Motion to Dismiss. See ECF 8 No. 10. 9 Meanwhile, Plaintiff filed the TRO Application on September 9, 2022. See 10 generally TRO Appl. Plaintiff notes that the Property was sold on August 26, 2022, but 11 she argues that the temporary restraining order is necessary to prevent Defendants “from 12 proceeding any further in the sale and transfer of title, interests and obligations relating to 13 [the Property].” Id. at 2. 14 On September 13, 2022, in an effort to determine whether the Court could properly 15 hear this case, the Court ordered Defendants NDSC and SPS to show cause as to subject- 16 matter jurisdiction. See generally ECF No. 6 (the “Order” or “OSC”). The Court was not 17 satisfied that the manner in which Plaintiff pleaded her purported RESPA claim was 18 sufficient to establish federal-question jurisdiction. OSC at 1–2. Specifically, Plaintiff 19 merely recited the reasons Congress enacted RESPA, and then claimed that Defendants’ 20 failure to communicate with her regarding the “status of her loan and requests for loss 21 mitigation assistance” constituted a violation of RESPA. See Compl. ¶¶ 16–18. Pursuant 22 to the OSC, Defendants addressed this jurisdictional issue in their TRO Opposition. 23 THE COURT’S ORDER TO SHOW CAUSE REGARDING JURISDICTION 24 The Court first addresses the threshold issue of its subject-matter jurisdiction over 25 this action. Having reviewed Defendants’ response to the Court’s Order and the law, the 26 Court is now satisfied that it can properly exercise federal-question jurisdiction over the 27 matter. 28 / / / 1 “In determining federal question jurisdiction, the well-pleaded complaint rule 2 ‘provides that federal jurisdiction exists only when a federal question is presented on the 3 face of the plaintiff's properly pleaded complaint.’” Hunter v. Philip Morris USA, 582 F.3d 4 1039, 1042 (9th Cir. 2009) (citing Fisher v. NOS Commc’ns (In re NOS Commc’ns), 495 5 F.3d 1052, 1057 (9th Cir. 2007)). Specifically, “[f]ederal question jurisdiction extends 6 only in those cases in which a well-pleaded complaint establishes ‘either that federal law 7 creates the cause of action or that the plaintiff's right to relief necessarily depends on a 8 resolution of a substantial question of federal law.’” Easton v. Crossland Mortg. Corp., 9 114 F.3d 979, 982 (9th Cir. 1997) (citing Franchise Tax Bd. v. Constr. Laborers Vacation 10 Tr., 463 U.S. 1, 27–28 (1983)). RESPA is a federal law that provides a private cause of 11 action. See 12 U.S.C. § 2605(f)(1). Therefore, federal-question jurisdiction exists where 12 a plaintiff’s complaint asserts a cause of action under RESPA. See Ali v. Downey Sav. & 13 Loan, No. CV 10-3798 GAF FMO, 2010 WL 2720505, at *1 (C.D. Cal. July 7, 2010) 14 (“Plaintiff's third claim for relief alleges Defendants violated [RESPA], 12 U.S.C. § 2601 15 et seq. Federal law provides Plaintiff with this federal cause of action, and the Court 16 therefore concludes that Plaintiff's complaint presents a federal question.”). 17 Here, Plaintiff specifically pleaded an individual cause of action under RESPA. See 18 Compl. ¶¶ 16–18. While Plaintiff did not specify which section(s) of RESPA Defendants 19 allegedly violated and simply concluded that Defendants’ “refus[al] to speak” with Plaintiff 20 constituted a violation of RESPA, these issues go to the sufficiency of Plaintiff’s claims, 21 not whether the Court has federal-question jurisdiction over the claims. See Republican 22 Party of Guam v. Gutierrez, 277 F.3d 1086, 1089 n.1 (9th Cir. 2002) (noting that federal- 23 question jurisdiction may exist despite the fact that a complaint’s prayer for relief makes 24 no mention of the statute upon which plaintiffs rely, as the “allegations in the 25 complaint . . . are the proper focus of [the] inquiry under the well-pleaded complaint rule”); 26 Curtis v. Deutsche Bank Nat’l Tr. Co., No. CV 20-10609, 2020 WL 6544783, at *1 n.1 27 (E.D. Mich. Nov. 6, 2020) (finding plaintiffs did not meet the pleading standard for Federal 28 Rule of Civil Procedure 12(b)(6) because they “fail[ed] to cite to a specific section of a 1 statute that Defendants allegedly violated”); see also Byrd v. Guild Mortg. Co., No. 2 11CV2204-WQH-WVG, 2011 WL 6736049, at *2–3 (S.D. Cal. Dec. 20, 2011) (exercising 3 federal-question jurisdiction despite concluding that plaintiffs “failed to allege sufficient 4 facts to state a claim under RESPA”); Guerrero v. First NLC Fin. Serv., No. 5 CV111038AHMMANX, 2011 WL 13218012, at *9 (C.D. Cal. June 14, 2011) (same). 6 Therefore, the Court finds that it may properly exercise federal-question jurisdiction over 7 this matter and DISCHARGES the September 13, 2022 OSC. 8 DEFENDANTS’ REQUESTS FOR JUDICIAL NOTICE 9 Defendants request that the Court take judicial notice of the following exhibits: (1) 10 the Deed of Trust recorded on August 3, 2006, in the Official Records of the County of 11 San Diego as Instrument No. 2006-0551257; (2) the Assignment of Deed of Trust recorded 12 on April 6, 2012, in the Official Records of the County of San Diego as Instrument No. 13 2012-0202325; (3) the Substitution of Trustee recorded on February 14, 2019, in the 14 Official Records of the County of San Diego as Instrument No. 2019-0054311; (4) the 15 Notice of Default and Election to Sell Under Deed of Trust recorded on February 14, 2019, 16 in the Official Records of the County of San Diego as Instrument No. 2019-0054312; (5) 17 the Order on Motion for Relief from Automatic Stay entered on March 8, 2022, by the 18 United States Bankruptcy Court for the Southern District of California, Bankruptcy No. 19 21-03467-LA7; (6) the Notice of Trustee’s Sale recorded on March 22, 2022, in the Official 20 Records of the County of San Diego as Instrument No. 2022-0126988; and (7) the 21 California Secretary of State’s Business Search results for Bird Rock Home Mortgage, 22 LLC. See ECF No. 2-2 at 2–3; ECF No. 11-2 at 2–3. 23 As a general rule, a district court cannot rely on evidence outside the pleadings in 24 ruling on a Rule 12(b)(6) motion without converting the motion into a Rule 56 motion for 25 summary judgment. See United States v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003) (citing 26 Fed. R. Civ. P. 12(b); Parrino v. FHP, Inc., 146 F.3d 699, 706 n.4 (9th Cir. 1998)). “A 27 court may, however, consider certain materials—documents attached to the complaint, 28 documents incorporated by reference in the complaint, or matters of judicial notice— 1 without converting the motion to dismiss into a motion for summary judgment.” Id. at 908 2 (citing Van Buskirk v. CNN, 284 F.3d 977, 980 (9th Cir. 2002); Barron v. Reich, 13 F.3d 3 1370, 1377 (9th Cir. 1994); 2 James Wm. Moore et al., Moore’s Federal Practice § 12.34[2] 4 (3d ed. 1999)). Federal Rule of Evidence 201(b) provides that “[t]he court may judicially 5 notice a fact that is not subject to reasonable dispute because it: (1) is generally known 6 within the trial court’s territorial jurisdiction; or (2) can be accurately and readily 7 determined from sources whose accuracy cannot reasonably be questioned.” 8 “[U]nder Fed R. Evid. 201, a court may take judicial notice of ‘matters of public 9 record.’” Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001). “[O]fficial records 10 of the County of San Diego, and copies of U.S. Bankruptcy Court documents . . . are 11 matters of public record.” Lopez v. Wells Fargo Bank, N.A., No. 16-CV-0811-AJB-DHB, 12 2017 WL 1336764, at *3 (S.D. Cal. Apr. 5, 2017). Therefore, the Court finds that taking 13 judicial notice of Exhibits (1) through (6) is appropriate, as they are all official records of 14 the County of San Diego or copies of U.S. Bankruptcy Court documents. Moreover, 15 Exhibits (3) and (4) were attached to Plaintiff’s Complaint in full, as were portions of 16 Exhibit (1), see Compl. Exs. A & D; accordingly, the Court finds these materials were 17 additionally incorporated by reference into the Complaint. Finally, “the accuracy of the 18 results of records searches from the Secretary of State for the State of California corporate 19 search website can be determined by readily accessible resources whose accuracy cannot 20 reasonably be questioned.” L’Garde, Inc. v. Raytheon Space & Airborne Sys., 805 F. Supp. 21 2d 932, 938 (C.D. Cal. 2011). Therefore, the Court finds it appropriate to take judicial 22 notice of Exhibit (7) as well. 23 In sum, the Court GRANTS Defendants’ Requests for Judicial Notice in their 24 entirety. 25 / / / 26 / / / 27 / / / 28 / / / 1 DEFENDANTS’ MOTION TO DISMISS 2 I. Legal Standard 3 Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the 4 defense that the complaint “fail[s] to state a claim upon which relief can be granted,” 5 generally referred to as a motion to dismiss. The Court evaluates whether a complaint 6 states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil 7 Procedure 8(a), which requires a “short and plain statement of the claim showing that the 8 pleader is entitled to relief.” Although Rule 8 “does not require ‘detailed factual 9 allegations,’ . . . it [does] demand more than an unadorned, the-defendant-unlawfully- 10 harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. 11 Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, “a plaintiff’s obligation to 12 provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and 13 conclusions, and a formulaic recitation of the elements of a cause of action will not do.” 14 Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). A 15 complaint will not suffice “if it tenders ‘naked assertion[s]’ devoid of ‘further factual 16 enhancement.’” Iqbal, 556 U.S. at 677 (citing Twombly, 550 U.S. at 557). 17 To survive a motion to dismiss, “a complaint must contain sufficient factual matter, 18 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting 19 Twombly, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible 20 when the facts pled “allow the court to draw the reasonable inference that the defendant is 21 liable for the misconduct alleged.” Iqbal, 556 U.S. at 677 (citing Twombly, 550 U.S. at 22 556). That is not to say that the claim must be probable, but there must be “more than a 23 sheer possibility that a defendant has acted unlawfully.” Id. Facts “‘merely consistent 24 with’ a defendant’s liability” fall short of a plausible entitlement to relief. Id. (quoting 25 Twombly, 550 U.S. at 557). Further, the Court need not accept as true “legal conclusions” 26 contained in the complaint. Id. This review requires context-specific analysis involving 27 the Court’s “judicial experience and common sense.” Id. at 678 (citation omitted). 28 “[W]here the well-pleaded facts do not permit the court to infer more than the mere 1 possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the 2 pleader is entitled to relief.’” Id. Finally, “[t]he court need not . . . accept as true 3 allegations that contradict matters properly subject to judicial notice or by exhibit.” 4 Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.), opinion amended on 5 denial of reh’g, 275 F.3d 1187 (9th Cir. 2001). 6 Where a complaint does not survive the Rule 12(b)(6) analysis, the Court will grant 7 leave to amend unless it determines that no modified contention “consistent with the 8 challenged pleading . . . [will] cure the deficiency.” DeSoto v. Yellow Freight Sys., Inc., 9 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schriber Distrib. Co. v. Serv-Well Furniture 10 Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). “The Ninth Circuit has instructed that the policy 11 favoring amendments ‘is to be applied with extreme liberality.’” Abels v. JBC Legal Grp., 12 P.C., 229 F.R.D. 152, 155 (N.D. Cal. 2005) (quoting Morongo Band of Mission Indians v. 13 Rose, 893 F.2d 1074, 1079 (9th Cir. 1990)). 14 II. Analysis 15 Plaintiff asserts four causes of action against Defendants: cancellation of deeds, 16 fraudulent transfers, violation of RESPA, and quiet title. See Compl. ¶¶ 9–23. Defendants 17 argue, however, that Plaintiff’s Complaint fails to state any claim upon which relief can be 18 granted. See generally MPA. Accordingly, the Court addresses the sufficiency of each of 19 Plaintiff’s claims in turn. 20 A. Cancellation of Deeds 21 Plaintiff alleges the “conduct of Defendants, and each of them, in forging deeds, 22 documents, and transferring real property without any legal authority, dispossessing 23 Plaintiff of her Property was willful and was intended to injure Plaintiff and to deprive 24 Plaintiff of the Property purportedly conveyed by forged Deeds of Trust and Substitution 25 of Trustees.” Compl. ¶ 11. Specifically, Plaintiff alleges that there is no evidence of “legal 26 transfer” to USB from JP Morgan Chase (“Chase”), Plaintiff’s prior loan servicer. Id. ¶ 4e. 27 She concludes that USB had no authority to substitute NDSC as trustee under the DOT, 28 and NDSC, therefore, had no right to foreclose on the Property. Id. For these reasons, 1 Plaintiff seeks cancellation of the allegedly fraudulent deeds. Id. ¶¶ 9–11. Defendants 2 argue that Plaintiff’s Complaint is “devoid of any facts to establish the required elements 3 of fraud” and that recorded real estate documents “make abundantly clear that Defendants 4 and their agents were lawfully entitled to service and collect on the loan.” MPA at 4–5. 5 California Civil Code § 3412 allows for cancellation of a written instrument when 6 “there is a reasonable apprehension that if left outstanding it may cause serious injury to a 7 person against whom it is void or voidable.” Cal. Civ. Code § 3412. Thus, “[t]o plead a 8 cause of action for cancellation of instrument, plaintiff must show that [s]he will be injured 9 or prejudiced if the instrument is not cancelled, and that such instrument is void or 10 voidable.” Zendejas v. GMAC Wholesale Mortg. Corp., No. 1:10-CV-00184, 2010 WL 11 2629899, at *7 (E.D. Cal. June 29, 2010). “A plaintiff must provide facts, ‘not mere 12 conclusions, showing the apparent validity of the instrument designated, and point out the 13 reason for asserting that it is actually invalid.’” D’Oleire v. Select Portfolio Servicing, Inc., 14 No. 316CV02520GPCNLS, 2016 WL 7188289, at *9 (S.D. Cal. Dec. 12, 2016) (quoting 15 Ephraim v. Metro. Tr. Co. of Calif., 28 Cal. 2d 824, 833 (Cal. Ct. App. 1946)).1 16 Because Plaintiff’s allegations involve fraud, Plaintiff must also meet the heightened 17 pleading requirements of Federal Rule of Civil Procedure 9(b). “Under Rule 9(b), a party 18 alleging fraud or mistake is required to plead with particularity the circumstances 19 constituting fraud or mistake.” Ghalehtak v. Fay Servicing, LLC, 304 F. Supp. 3d 877, 889 20 (N.D. Cal. 2018), aff’d, 765 F. App’x 168 (9th Cir. 2019). “This requires pleading ‘the 21 who, what, when, where, and how’ of the misconduct charged.” Id. (citing Cooper v. 22 23 24 1 Although, generally speaking, “[a]lleging facts to show tender in the amount of the indebtedness or a valid excuse to the tender requirement is necessary to state a claim for cancellation of instruments,” 25 D’Oleire v. Select Portfolio Servicing, Inc., No. 316CV02520GPCNLS, 2016 WL 7188289, at *10 (S.D. Cal. Dec. 12, 2016) (citing Morgan v. Aurora Loan Servs., LLC, 646 F. App’x 546 (9th Cir. 2016)), this 26 so-called “tender rule” does not apply “where the plaintiff alleges the documents were executed as a result of fraud and without plaintiffs’ knowledge that the instruments were void,” Cheung v. Wells Fargo Bank, 27 N.A., 987 F. Supp. 2d 972, 978 (N.D. Cal. 2013) (citing Fleming v. Kagan, 189 Cal. App. 2d 791 (Ct. 28 App. 1961)). Here, Plaintiff’s Complaint alleges that the instruments were “forged, fraudulent, and null 1 Pickett, 137 F.3d 616, 627 (9th Cir. 1997)). Relatedly, under California Code of Civil 2 Procedure § 338(d), cancellation claims involving fraud have a three-year statute of 3 limitations that runs from the time of discovery of the facts constituting fraud. Westfall v. 4 Mortg. Elec. Registration Sys., Inc., No. 3:15-CV-01403-L-NLS, 2016 WL 1241520, at *4 5 (S.D. Cal. Mar. 30, 2016) (citing Robertson v. Superior Ct., 90 Cal. App. 4th 1319, 1326 6 (2001); Zakaessian v. Zakaessian, 70 Cal. App. 2d 721, 725 (1945)). 7 Here, the Court finds that Plaintiff has not supported her allegations of fraud with 8 sufficient facts. Plaintiff only broadly alleges in conclusory fashion that “[a]ny documents 9 defendants rely on are forged, fraudulent, and null and void.” Compl. ¶ 4e. “Such 10 allegations fail to identify the allegedly fraudulent conduct with specificity and therefore 11 do not meet the pleading requirements under Rule 9(b).” Ghalehtak, 304 F. Supp. 3d at 12 889. Plaintiff also has failed to plead any facts pertaining to when she discovered the 13 alleged fraud. 14 Moreover, Plaintiff has not adequately demonstrated that the instruments to be 15 cancelled are void or voidable. While Plaintiff claims that USB had no authority to 16 substitute NDSC as successor trustee, this allegation is belied by the judicially noticed 17 exhibits. See Sprewell, 266 F.3d at 988 (“The court need not . . . accept as true allegations 18 that contradict matters properly subject to judicial notice or by exhibit.”). The documentary 19 trail begins with Plaintiff’s loan from VirtualBank, a division of Lydian Private Bank, in 20 the amount of $599,200, on July 21, 2006. See ECF No. 11-2 at 6. To secure the 21 promissory note evidencing the loan, Plaintiff executed and delivered to VirtualBank a 22 DOT encumbering the Property. See id. at 5–7. Under the DOT, First American Lenders 23 Advantage was named trustee. Id. at 6. Mortgage Electronic Registration Systems, Inc. 24 (“MERS”), acting as nominee for VirtualBank, was named beneficiary. Id. at 6. The legal 25 implication of the latter designation was that “MERS may exercise the rights and 26 obligations of a beneficiary of the deed of trust, a role ordinarily afforded the lender, but it 27 [would] exercise those rights and obligations only as an agent for the lender, not for its own 28 interests.” Fontenot v. Wells Fargo Bank, N.A., 198 Cal. App. 4th 256, 273 (2011) 1 (analyzing identical contract language), disapproved of on other grounds by Yvanova v. 2 New Century Mortg. Corp., 62 Cal. 4th 919 (2016). The DOT itself states that MERS may 3 “exercise any or all of [the interests granted in the DOT], including, but not limited to, the 4 right to foreclose and sell the Property.” ECF No. 11-2 at 16. 5 Paragraph 20 of the DOT provides that “[t]he Note or a partial interest in the Note 6 (together with [the DOT]) can be sold one or more times without prior notice to Borrower.” 7 Id. at 15. On March 20, 2012, MERS, as nominee for VirtualBank, assigned all its interest 8 in the DOT to USB “for good and valuable consideration,” making USB the new 9 beneficiary under the DOT. Id. at 58 (emphasis omitted). While not disputed by Plaintiff, 10 it is worth noting that “California [courts] have universally held that MERS, as nominee 11 beneficiary, has the power to assign its interest under a deed of trust.” Morgan v. Aurora 12 Loan Servs., LLC, 646 F. App'x 546, 551 (9th Cir. 2016) (citing Herrera v. Fed. Nat’l 13 Mortg. Ass’n, 205 Cal. App. 4th 1495, 1498 (2012)). 14 Paragraph 24 of the DOT provides that the lender-beneficiary “may from time to 15 time appoint a successor trustee to any Trustee appointed hereunder by an instrument 16 executed and acknowledged by [the beneficiary].” See id. at 17. On February 5, 2019, 17 USB, through its attorney-in-fact SPS, substituted NDSC as the successor trustee under the 18 DOT, thereby replacing First American Lenders Advantage, the original trustee. ECF No. 19 11-2 at 60. In her Opposition, Plaintiff argues, for the first time and in conclusory fashion, 20 that “SPS, as the mere servicer of the loan for Chase, had no authorization or legal right to 21 substitute [USB] or [NDSC] as a Trustee.” MTD Opp’n at 4. Here, however, SPS was 22 acting as the attorney-in-fact for USB, not as a loan servicer for Chase. ECF No. 11-2 at 23 60; see infra at 11–12. Moreover, contrary to Plaintiff’s argument, “Section 1095 of the 24 California Civil Code allows for execution by an attorney in fact, requiring only that 25 ‘[w]hen an attorney in fact executes an instrument transferring an estate in real property, 26 he must subscribe the name of his principal to it, and his own name as attorney in fact.’” 27 Bergman v. Bank of Am., No. C-13-00741 JCS, 2013 WL 5863057, at *15 (N.D. Cal. Oct. 28 23, 2013). The Substitution of Trustee demonstrates that such requirements were met here. 1 See ECF No. 11-2 at 60. California courts have held that substitutions of trustee executed 2 by an agent on behalf of the beneficiary do not render the substitution invalid, provided 3 there is no contractual language prohibiting such an arrangement. See Kalnoki v. First Am. 4 Tr. Servicing Sols., LLC, 8 Cal. App. 5th 23, 40 (2017) (analyzing contract with identical 5 language and finding that agent’s execution of substitution of trustee did not render the 6 substitution invalid); Aceves v. U.S. Bank, N.A., 192 Cal. App. 4th 218, 232, as modified 7 (Feb. 9, 2011) (“Neither Civil Code section 2934a, which governs the substitution of 8 trustees, nor the trust deed itself precludes an attorney-in-fact from signing a Substitution 9 of Trustee.”); Natividad v. Wells Fargo Bank, N.A., No. 3:12-CV-03646 JSC, 2013 WL 10 2299601, at *14 (N.D. Cal. May 24, 2013); Bergman, 2013 WL 5863057, at *15 (N.D. 11 Cal. Oct. 23, 2013). Plaintiff cites to no authority, nor does she point to any language in 12 the DOT, that would prohibit SPS, as attorney-in-fact for USB, from substituting NDSC 13 as the successor trustee. 14 As the foregoing discussion demonstrates, Defendants transferred their interests in 15 the DOT in accordance with California law and the prescriptions of the DOT. Plaintiff, 16 however, claims that USB “had nothing to transfer to NDSC [n]or any right to foreclose or 17 authorize NDSC to foreclose on Plaintiff’s property” because there is no evidence of 18 transfer from Chase to USB. Compl. ¶ 4e. This argument requires an understanding of the 19 loan servicer’s role under the DOT. Paragraph 20 of the DOT defines “Loan Servicer” as 20 the entity “that collects Periodic Payments due under the Note and [the DOT] and performs 21 other mortgage loan servicing obligations under the Note, [the DOT], and Applicable 22 Law.” ECF No. 11-2 at 15. All other relevant rights, interests, and obligations under the 23 DOT are consigned to the lender-beneficiary, borrower, or trustee. See id. at 5–19; 24 supra pp. 9–11. Here, Chase serviced Plaintiff’s loan until June 1, 2016, at which time 25 loan servicing was transferred to SPS. See Compl. Ex. C. Prior to the transfer of servicing 26 responsibilities, Chase provided Plaintiff with a loan modification on March 21, 2011. Id. 27 Ex. B. Plaintiff does not allege that the loan modification, nor any other action taken by 28 Chase as the loan servicer, superseded or otherwise negated MERS’s designation as the 1 nominee beneficiary or its ability to assign its interest to USB. See supra pp. 9–10. In the 2 absence of such an allegation, the lack of legal transfer between Chase and USB provides 3 no support for Plaintiff’s claim. 4 Even if Plaintiff’s Complaint contained facts showing the relevant instruments were 5 void or voidable, however, Plaintiff additionally has failed to allege serious injury. 6 Plaintiff argues that “dispossessing Plaintiff of her Property was willful and was intended 7 to injure Plaintiff and to deprive Plaintiff of the Property purportedly conveyed by forged 8 Deeds of Trust and Substitution of Trustees.” Compl. ¶ 11. Courts have declined to find 9 serious injury, however, where the allegedly defective assignment does not alter the 10 borrower’s payment obligations under the Note and where the borrower does not deny that 11 she has defaulted. See, e.g., Saterbak v. JPMorgan Chase Bank, N.A., 245 Cal. App. 4th 12 808, 819 (2016); Johnson v. PNC Mortg., 80 F. Supp. 3d 980, 989 (N.D. Cal. 2015). Under 13 such circumstances, the injury stems from the borrower’s default, not the allegedly 14 defective assignment. Saterbak, 245 Cal. App. 4th at 819. Here, Plaintiff has not alleged 15 that the purportedly defective assignment altered her payment obligations under the Note, 16 nor has Plaintiff denied that she defaulted. See generally Compl. Although Plaintiff claims 17 that Defendants have failed to apply over $16,000 of payments to her account, id. ¶ 8, 18 Plaintiff provides no information on when such payments were made or whether they were 19 sufficient to cure the default. Therefore, the Court finds that Plaintiff has failed to allege 20 serious injury as required by California Civil Code § 3412. 21 In sum, the Court finds that Plaintiff has not met the pleading requirements of 22 Federal Rule of Civil Procedure 9(b); that the judicially noticed exhibits refute Plaintiff’s 23 claims that the instruments to be cancelled are void; and that Plaintiff has not demonstrated 24 that she will suffer serious injury within the meaning of California Civil Code § 3412. 25 Therefore, the Court GRANTS Defendants’ Motion as to this claim. In accordance with 26 the Ninth Circuit’s policy of extreme liberality in granting leave to amend and given that 27 amendment likely would not be futile, the Court DISMISSES WITHOUT PREJUDICE 28 Plaintiff’s cancellation of written instruments claim. 1 B. Fraudulent Transfer 2 Plaintiff’s fraudulent transfer claim rests upon the same theory as Plaintiff’s 3 cancellation of written instruments claim; namely, Plaintiff argues that, because there is no 4 record of transfer between Chase and USB, 5 Defendants have no legal standing, title or right as the service provider of Plaintiff’s mortgage loan, thus no legal rights to 6 foreclose, transfer any interest between each other in an attempt 7 to collect a debt Plaintiff does not owe [D]efendants, or to transfer any interest in Plaintiff’s property or loan to third parties 8 as successor in interests as Defendants did. 9

10 Compl. ¶ 13. Defendants contend that Plaintiff’s claim for fraudulent transfer fails for the 11 same reasons that Plaintiff’s claim for cancellation of written instruments failed: (i) 12 “Plaintiff has failed to allege the necessary facts and elements of a claim for fraud,” and 13 (ii) the judicially noticed exhibits “establish that the DOT and [Substitution of Trustee] are 14 valid.” MPA at 5. 15 “Fraudulent transfer claims are also subject to the heightened pleading requirements 16 of Fed. R. Civ. P. 9(b).” Retamco Operating, Inc. v. Carone, No. CV 04-2997 CBM 17 (RZX), 2004 WL 7338704, at *5 (C.D. Cal. Dec. 21, 2004). As such, Plaintiff “must state 18 with particularity the circumstances constituting fraud.” Fed. R. Civ. P. 9(b). As noted 19 supra, however, Plaintiff’s Complaint contains only conclusory allegations that the 20 instruments in question were forged and fraudulent, and the judicially noticed exhibits 21 refute Plaintiff’s assertions that Defendants lacked authority to “transfer any interest 22 between each other.” See supra pp. 9–12; Compl. ¶ 13. As explained fully above, MERS 23 assigned the DOT to USB, supra p. 10, and USB, through its attorney-in-fact SPS, 24 substituted NDSC as successor trustee to First American Lenders Advantage, id. pp. 10– 25 11. 26 Plaintiff’s contention that “Defendants have no legal standing, title or right as the 27 service provider of Plaintiff’s mortgage loan, [and] thus no legal rights to foreclose [on the 28 Property],” Compl. ¶ 13 (emphasis added), evidences a misunderstanding of the respective 1 roles of the loan servicer, beneficiary, and trustee under the DOT. To reiterate, Paragraph 2 22 of the DOT provides that, in the event of default, the lender-beneficiary may invoke the 3 power of sale, and further provides: 4 If Lender invokes the power of sale, Lender shall execute or 5 cause Trustee to execute a written notice of the occurrence of an event of default and of Lender’s election to cause the Property to 6 be sold. Trustee shall cause this notice to be recorded in each 7 county in which any part of the Property is located. 8 ECF No. 11-2 at 17; see also Cal. Civ. Code § 2924(a)(1) (“The trustee, mortgagee, or 9 beneficiary, or any of their authorized agents shall first file for record . . . a notice of 10 default” before exercising power of sale). In accordance with this provision and as a result 11 of Plaintiff’s failure to make installment payments on the loan, NDSC recorded, on 12 February 14, 2019, a “Notice of Default and Election to Sell Under Deed of Trust” in San 13 Diego County (“NOD”). ECF No. 11-2 at 62–64. The NOD informed Plaintiff that “the 14 present beneficiary,” USB, had elected to sell the Property to satisfy Plaintiff’s obligations. 15 Id. at 64. Under Paragraph 22 of the DOT, if the power of sale is invoked, the trustee is 16 obligated to “give public notice of sale to the persons and in the manner prescribed by 17 Applicable Law.” Id. at 17. On March 22, 2022, NDSC recorded a “Notice of Trustee’s 18 Sale,” notifying Plaintiff of the non-judicial foreclosure sale of the Property on May 6, 19 2022. Id. at 73. As these provisions demonstrate, the loan servicer never had the power to 20 foreclose on the Property, and the judicially noticed exhibits show that the loan servicer, 21 SPS, did not do so here. 22 In sum, the Court finds that Plaintiff has failed to meet the heightened pleading 23 requirements under Federal Rule of Civil Procedure 9(b) and that Plaintiff’s theory 24 underlying the fraudulent transfer claim, as presently pleaded, is meritless. Accordingly, 25 the Court GRANTS Defendants’ Motion as to this claim. The Court further DISMISSES 26 WITHOUT PREJUDICE Plaintiff’s fraudulent transfer claim, as Plaintiff may be able to 27 amend the claim to cure the deficiencies described above. 28 / / / 1 C. RESPA Violation 2 Plaintiff next asserts a violation of RESPA. Compl. ¶¶ 16–18. Without specifying 3 which section of RESPA Defendants allegedly violated, Plaintiff argues that certain letters 4 from SPS “evidence [D]efendants refused to speak with Plaintiff or provide her any 5 information requested re status of her loan and requests for loss mitigation assistance.” Id. 6 ¶ 18. Defendants argue that Plaintiff’s RESPA claim is deficient because she “fails to 7 identify any conduct by Defendants that might be considered a violation of RESPA beyond 8 a short conclusory statement that SPS failed to provide requested information.” MPA at 6. 9 RESPA seeks to ensure real estate consumers “are provided with greater and more 10 timely information on the nature and costs of the settlement process and are protected from 11 unnecessarily high settlement charges caused by certain abusive practices that have 12 developed in some areas of the country.” 12 U.S.C. § 2601(a)(1). “To achieve this 13 objective, RESPA contains three primary causes of actions which are respectively codified 14 at 12 U.S.C. §§ 2605, 2607, and 2608.” Morris v. Chase Home Fin., LLC, No. EP-13-CV- 15 132-KC, 2013 WL 12130453, at *5 (W.D. Tex. Aug. 6, 2013) (citing 12 U.S.C. §§ 2601– 16 17). “Section 2605 codifies a loan servicer’s duties; § 2607 prohibits kickbacks related to 17 a real estate settlement service; and § 2608 bars conditioning a real estate sale on the use 18 of a particular title insurance company.” Id. In this case, neither § 2607 nor § 2608 appears 19 applicable, as Plaintiff’s Complaint is devoid of allegations concerning kickbacks or a 20 conditional sale. Thus, to the extent Plaintiff’s RESPA claim does rest on those sections, 21 the Court finds that Plaintiff has failed to plead sufficient facts to state a claim. 22 Section 2605 of RESPA “requires the servicer of a federally related mortgage loan 23 to provide a timely written response to inquiries, or ‘qualified written requests,’ from 24 borrowers regarding the servicing of their loans.” Hueso v. Select Portfolio Servicing, Inc., 25 527 F. Supp. 3d 1210, 1221 (S.D. Cal. 2021) (citing 12 U.S.C. §§ 2605(e)(1)(A), (e)(2)). 26 A qualified written request (“QWR”) is defined as 27 [a] written correspondence, other than notice on a payment coupon or other payment medium supplied by the servicer, 28 1 that—(i) includes, or otherwise enables the servicer to identify, the name and account of the borrower; and (ii) includes a 2 statement of the reasons for the belief of the borrower, to the 3 extent applicable, that the account is in error or provides sufficient detail to the servicer regarding other information 4 sought by the borrower. 5 6 12 U.S.C. § 2605(e)(1)(B). In Medrano v. Flagstar Bank, FSB, the Ninth Circuit clarified 7 that, under § 2605(e), “a borrower’s written inquiry requires a response as long as it (1) 8 reasonably identifies the borrower’s name and account, (2) either states the borrower’s 9 ‘reasons for the belief . . . that the account is in error’ or ‘provides sufficient detail to the 10 servicer regarding other information sought by the borrower,’ and (3) seeks ‘information 11 relating to the servicing of [the] loan.’” 704 F.3d 661, 666 (9th Cir. 2012). Regarding the 12 third prong, RESPA defines “servicing” as “receiving any scheduled periodic payments 13 from a borrower pursuant to the terms of any loan, . . . and making the payments of 14 principal and interest and such other payments with respect to the amounts received from 15 the borrower as may be required pursuant to the terms of the loan.” 12 U.S.C. § 2605(i)(3). 16 The loan servicer must acknowledge receipt of the correspondence within five days, 17 see id. § 2605(e)(1)(A), and must take appropriate action within thirty days, see id. 18 § 2605(e)(2). “If the servicer fails to respond properly to such a request, the statute entitles 19 the borrower to recover actual damages and, if there is a ‘pattern or practice of 20 noncompliance,’ statutory damages of up to $1,000.” Hueso, 527 F. Supp. 3d at 1221 21 (citing 12 U.S.C. § 2605(f)). “Although this section does not explicitly set this out as a 22 pleading standard, a number of courts have read the statute as requiring a showing of 23 pecuniary damages in order to state a claim.” Allen v. United Fin. Mortg. Corp., 660 F. 24 Supp. 2d 1089, 1097 (N.D. Cal. 2009); see also Espinoza v. Recontrust Co., No. 09-CV- 25 1687-IEG (RBB), 2010 WL 2775753, at *4–5 (S.D. Cal. July 13, 2010) (finding no RESPA 26 claim where plaintiff failed to plead damages); Hueso, 527 F. Supp. 3d at 1224 (same). 27 / / / 28 / / / 1 Here, Plaintiff has failed to adequately plead her RESPA claim. First, Plaintiff fails 2 to explain how or why § 2605 should apply to Defendants USB and NDSC, who were not 3 Plaintiff’s loan servicers. 4 Second, Plaintiff’s allegations fail to demonstrate that her inquiries qualify as 5 QWRs. Plaintiff alleges her requests for information related to the “status of her loan,” 6 “loss mitigation assistance,” and “loan modification.” Compl. ¶¶ 8, 16–18. “Loss 7 mitigation assistance” and “loan modification,” however, do not relate to loan servicing as 8 defined by § 2605(i)(3). See Watson v. Bank of Am., N.A., No. 16CV513-GPC(MDD), 9 2016 WL 3552061, at *5 (S.D. Cal. June 30, 2016) (“[R]equests relating to loan 10 modification are not related to ‘servicing’ of the loan.”); Van Egmond v. Wells Fargo Home 11 Mortg., No. SACV 12-0112 DOC, 2012 WL 1033281, at *4 (C.D. Cal. Mar. 21, 2012) 12 (“RESPA . . . only obligates loan servicers to respond to borrowers’ requests for 13 information relating to the servicing of their loans, which does not include loan 14 modification information.”); Banks v. Wells Fargo Bank N.A., No. 3:17-CV-2381-B, 2018 15 WL 1427079, at *3 (N.D. Tex. Mar. 21, 2018) (“[A] request for a loss mitigation review 16 and retention options does not relate to servicing of the loan.”); Smallwood v. Bank of Am., 17 N.A., No. 1:15-CV-336, 2015 WL 7736876, at *6–7, 7 n.13 (S.D. Ohio Dec. 1, 2015) 18 (finding loss mitigation and loan modification fall outside RESPA’s definition of 19 “servicing”); Hudgins v. Seterus, Inc., 192 F. Supp. 3d 1343, 1350 (S.D. Fla. 2016) (same); 20 Christenson v. Citimortgage, Inc., No. 12-CV-02600-CMA-KLM, 2013 WL 5291947, at 21 *4 (D. Colo. Sept. 18, 2013) (same); see also Mortgage Servicing Rules Under the Real 22 Estate Settlement Procedures Act (Regulation X), 78 Fed. Reg. 10739 (February 14, 2013) 23 (contrasting § 2605(k)(1)(c)’s reference to “standard servicer duties,” which include loss 24 mitigation assistance, with “servicing” as defined in § 2605(i)(3)). Plaintiff also does not 25 adequately explain what is meant by “status of her loan” and whether such requests relate 26 to loan servicing. 27 / / / 28 / / / 1 Third, even if Plaintiff’s inquiries were QWRs, Plaintiff’s allegations are inadequate 2 to state a claim because she does not specify to whom she sent her requests for information; 3 when they were sent; whether they were written; or whether Plaintiff identified herself and 4 her account. Nor does Plaintiff provide adequate facts for the Court to determine whether 5 the requests provided sufficient detail to SPS regarding the information Plaintiff sought. 6 Finally, Plaintiff has failed to adequately plead actual damages stemming from 7 SPS’s purported failure to respond to Plaintiff’s inquiries. Plaintiff’s Complaint attempts 8 to tie the then-pending non-judicial foreclosure sale of the Property to Defendants’ refusal 9 to speak with her, Compl. ¶ 8, but such damages relate to Plaintiff’s default, not SPS’s 10 alleged failure to respond, see Allen v. United Fin. Mortg. Corp., 660 F. Supp. 2d 1089, 11 1097 (N.D. Cal. 2009) (finding plaintiff had not shown alleged RESPA violations caused 12 pecuniary loss as plaintiff’s “loss of property appears to have been caused by his default”). 13 Likewise, Plaintiff provides no facts permitting the Court to plausibly infer that 14 Defendants’ alleged failure to “apply over $16,000 of payments” relates to SPS’s failure 15 to respond to a QWR sent by Plaintiff. See Compl. ¶ 8. Plaintiff’s request for “$599,000 16 in exemplary or punitive damages” for Defendants’ alleged RESPA violation fails as a 17 matter of law, as § 2605 does not provide for punitive damages. See Compl. ¶ 24-5. Nor 18 is Plaintiff’s broad claim that Defendants refused to respond to her inquiries supported by 19 sufficient facts for the Court to draw a reasonable inference that SPS has a “pattern or 20 practice of noncompliance” with § 2605 such that Plaintiff would be entitled to statutory 21 damages. 22 In sum, the Court finds that Plaintiff has failed to explain how § 2605 applies to 23 Defendants USB and NDSC, whether any of Plaintiff’s inquiries to SPS constitute QWRs, 24 and how Defendants’ alleged failure to respond to her inquires caused her to suffer actual 25 damages. Therefore, the Court GRANTS Defendants’ Motion as to this claim. Because 26 Plaintiff conceivably could amend the complaint to cure these deficiencies, the Court 27 DISMISSES WITHOUT PREJUDICE Plaintiff’s RESPA violation claim. 28 / / / 1 D. Quiet Title 2 Plaintiff seeks to quiet title to the Property against any claims by all known and 3 unknown Defendants. Compl. ¶¶ 19–23. Plaintiff asserts that the basis of her title in the 4 Property “is a deed of Trust to the Michelle Gold Separate Property Trust dated December 5 23, 2002, and recorded in the Official Records of the County of San Diego, State of 6 California, recorded on August 3, 2006, Document Number 2006-0551257.” Id. ¶ 21. 7 Defendants contend that “Plaintiff’s claim for title is not superior to the interests held by 8 Defendants” because (i) the “DOT and [Substitution of Trustee] are presumed valid as a 9 matter of law” and (ii) “Plaintiff has failed to adequately allege any basis for voiding the 10 DOT and [Substitution of Trustee].” MPA at 6. 11 Quiet title claims are governed by California Code of Civil Procedure § 761.020. 12 That section requires that a complaint to quiet title be “verified” and include the following: 13 (1) a description of the property, both legal description and street address; (2) the title of the plaintiff, and the basis for that title; 14 (3) the adverse claims to the plaintiff's title; (4) the date as of 15 which the determination is sought; and (5) a prayer for the determination of the plaintiff's title against the adverse claims. 16 17 Briosos v. Wells Fargo Bank, 737 F. Supp. 2d 1018, 1031 (N.D. Cal. 2010) (citing Cal. 18 Civ. Proc. Code §§ 760.020(a)–(e)). “California Civil Procedure Code § 446 requires a 19 verification to be either sworn or signed under penalty of perjury.” Lander v. Bank of Am. 20 Corp., No. CV 11-8613-GHK (EX), 2012 WL 12951550, at *3 n.3 (C.D. Cal. Jan. 11, 21 2012) (citing Cal. Civ. Proc. Code § 446), aff’d, 643 F. App’x 663 (9th Cir. 2016). 22 Moreover, “[t]o bring a claim to quiet title, plaintiffs must show they ‘are the rightful 23 owners of the property, i.e., that they have satisfied their obligations under the Deed of 24 Trust.’” Thompson v. Nationstar Mortg. LLC, No. 17-CV-02864-DMR, 2017 WL 25 3232549, at *7 (N.D. Cal. July 31, 2017) (citing Kelley v. Mortg. Elec. Registration Sys., 26 Inc., 642 F. Supp. 2d 1048, 1057 (N.D. Cal. 2009)). Thus, “to maintain a quiet title claim 27 [in California], a plaintiff ‘is required to allege tender of the proceeds of the loan at the 28 pleading stage.’” Briosos, 737 F. Supp. 2d at 1032 (quoting Velasquez v. Chase Home 1 Finance, LLC, No. C 10-01641 SI, 2010 WL 3211905, at *4 (N.D. Cal. Aug. 14, 2010)); 2 see also Aguilar v. Bocci, 39 Cal. App. 3d 475, 477 (1974) (stating that a plaintiff cannot 3 quiet title “without discharging his debt. The cloud upon his title persists until the debt is 4 paid.”). “An offer of tender at some point in the future which is dependent on factors 5 outside of the quiet title claimant’s control is not sufficient; claimant must instead allege 6 that he has the ‘present ability to tender’ the loan payments.” Butts v. IndyMac Bancorp, 7 No. 10-00097 ODW (FFMX), 2010 WL 11597611, at *4 (C.D. Cal. Mar. 26, 2010) (citing 8 Del Valle v. Mortg. Bank of Cal., No. CV-F-09-1316 OWW/DLB, 2009 WL 3786061, at 9 *9 (E.D. Cal. Nov. 10, 2009); Curtis v. Option One Mortg. Corp., No. 109CV1608 AWI 10 SMS, 2010 WL 599816, at *5–6 (E.D. Cal. Feb. 18, 2010); Valdez v. Am.’s Wholesale 11 Lender, No. C 09-02778 JFRS, 2009 WL 5114305, at *8 (N.D. Cal. Dec. 18, 2009); E. Or. 12 Land Co. v. Moody, 198 F. 7, 18 (9th Cir. 1912) (“A tender of payment, to be the equivalent 13 of an actual production and tender of the money, must be made by one who has the present 14 ability to make the tender good, and the burden of proof is upon the plaintiff to show that 15 he has such ability.”)). 16 Here, Plaintiff’s quiet title claim fails for at least two reasons. First, despite 17 captioning the Complaint as a “Verified Complaint,” it was not sworn or signed under 18 penalty of perjury. Second, Plaintiff has not alleged that her obligations under the DOT 19 have been satisfied, nor has Plaintiff alleged the present ability to tender the debt secured 20 by the DOT. Moreover, as discussed above, the judicially noticed exhibits refute Plaintiff’s 21 claim that the basis for her title is the DOT. See supra pp. 9–11. In fact, “[u]nder a deed 22 of trust, the trustee holds title and has the authority to sell the property in the event of a 23 default on the mortgage.” Brown v. Deutsche Bank Nat’l Tr. Co., 247 Cal. App. 4th 275 24 (2016) (citing Haynes v. EMC Mortgage Corp., 205 Cal. App. 4th 329, 333–36) (2012)). 25 Finally, to the extent Plaintiff’s quiet title claim rests upon allegations of fraud, the Court 26 finds such allegations fall short of the heightened pleading standard of Federal Rule of 27 Civil Procedure 9(b) for the reasons laid out above. See supra pp. 9, 12–13. Therefore, 28 the Court GRANTS Defendants’ Motion as to this claim. As Plaintiff may be able to cure 1 the present deficiencies in her Complaint, the Court DISMISSES WITHOUT 2 PREJUDICE Plaintiff’s quiet title claim. 3 III. Conclusion 4 For the reasons set forth above, the Court GRANTS Defendants’ Motion in its 5 entirety and DISMISSES WITHOUT PREJUDICE Plaintiff’s claims. 6 PLAINTIFF’S APPLICATION FOR A TEMPORARY RESTRAINING ORDER 7 I. Legal Standard 8 Federal Rule of Civil Procedure 65(b) governs the issuance of a temporary 9 restraining order (“TRO”). The standard for a TRO is identical to the standard for a 10 preliminary injunction. See Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 11 832, 839 n.7 (9th Cir. 2001). To obtain either a TRO or a preliminary injunction, the 12 moving party must show: (1) a likelihood of success on the merits; (2) a likelihood of 13 irreparable harm to the moving party in the absence of preliminary relief; (3) that the 14 balance of equities tips in favor of the moving party; and (4) that an injunction is in the 15 public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). 16 Although a plaintiff seeking a TRO or preliminary injunction must make a showing 17 on each element, the Ninth Circuit employs a “version of the sliding scale” approach where 18 “a stronger showing of one element may offset a weaker showing of another.” All. for the 19 Wild Rockies v. Cottrell, 632 F.3d 1127, 1131–35 (9th Cir. 2011). Under this approach, a 20 court may issue a TRO or preliminary injunction where there are “serious questions going 21 to the merits and a balance of hardships that tips sharply towards the plaintiff . . . , so long 22 as the plaintiff also shows that there is a likelihood of irreparable injury and that the 23 injunction is in the public interest.” Id. at 1135 (internal quotation marks omitted). 24 Generally, a TRO is considered to be “an extraordinary remedy that may only be awarded 25 upon a clear showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. at 22. 26 The moving party has the burden of persuasion. Hill v. McDonough, 547 U.S. 573, 584 27 (2006). 28 / / / 1 II. Analysis 2 Plaintiff requests the Court issue a TRO to prevent Defendants “from proceeding 3 any further in the sale and transfer of title, interests and obligations relating to [the 4 Property].” TRO Appl. at 2. Plaintiff notes that the Property was sold on August 26, 2022, 5 but argues that, in the absence of a TRO, she will be left homeless and the Property “will 6 be further depleted, destroyed, changed or sold and this court will never be able to return 7 the property to Plaintiff in the same condition after a hearing on the issues are heard in this 8 court.” Id. at 4. In response, Defendants argue that Plaintiff has failed to present any facts 9 that would satisfy the requirements for injunctive relief. TRO Opp’n at 1. Defendants also 10 question the utility of a TRO, given the fact that the Property has already been sold to a 11 third party, Bird Rock Home Mortgage, LLC (“Bird Rock”). Id. 12 The Court finds that Plaintiff has not made a sufficient showing to justify the 13 issuance of a TRO. Specifically, Plaintiff has failed to demonstrate a likelihood of success 14 on the merits; Plaintiff’s delay in seeking injunctive relief weighs against granting a TRO; 15 the balance of hardships tips in Defendants’ favor, due to Plaintiff’s prolonged failure to 16 make payments on the Property; and the public interest favors affording relief to those 17 deserving security on a defaulted loan. The Court addresses each of these factors more 18 fully below. 19 A. Likelihood of Success 20 First and most importantly, Plaintiff has failed to demonstrate a likelihood of success 21 on the merits in light of the Court’s decision to grant Defendants’ Motion to Dismiss in its 22 entirety and dismiss without prejudice all of Plaintiff’s claims. See supra pp. 8–20; see 23 also Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015) (en banc) (“The first factor 24 under Winter is the most important—likely success on the merits.”). Nor does Plaintiff 25 present any “serious questions going to the merits” of her claims, as the judicially noticed 26 exhibits demonstrate Defendants were entitled to foreclose on the Property and did so 27 according to the prescriptions of the DOT and California law. See supra pp. 8–20. 28 1 “Because it is a threshold inquiry, when a plaintiff has failed to show the likelihood 2 of success on the merits, we need not consider the remaining three [Winter elements].” 3 Garcia, 786 F.3d at 740 (citing Ass’n des Eleveurs de Canards et d’Oies du Quebec v. 4 Harris, 729 F.3d 937, 944 (9th Cir. 2013) (internal quotation marks omitted). Thus, while 5 Plaintiff’s failure to demonstrate a likelihood of success or “serious questions going to the 6 merits” is alone sufficient to deny Plaintiff’s TRO Application, the Court will nevertheless 7 briefly analyze the remaining elements. 8 B. Irreparable Harm 9 Plaintiff’s delay in moving for injunctive relief weighs against granting her request. 10 “Although the loss of one’s home may constitute irreparable harm,” Jones v. H.S.B.C. 11 (USA), 844 F. Supp. 2d 1099, 1101 (S.D. Cal. 2012), “[d]elay in seeking injunctive relief 12 can imply a lack of urgency and irreparable harm, and weighs against the propriety of such 13 relief,” Thomas v. Deutsche Bank Nat. Tr., No. C 12-00472 CRB, 2012 WL 821973, at *3 14 (N.D. Cal. Mar. 9, 2012) (citing Miller ex rel. NLRB v. Cal. Pac. Med. Ctr., 991 F.2d 536, 15 544 (9th Cir.1993); Lydo Enters. v. City of Las Vegas, 745 F.2d 1211, 1213 (9th Cir. 1984)). 16 Here, non-judicial foreclosure proceedings were initiated on February 14, 2019, 17 when NDSC recorded the NOD. See ECF No. 11-2 at 62. On August 29, 2021, Plaintiff 18 filed a Chapter 7 Bankruptcy Petition in the U.S. Bankruptcy Court, Southern District of 19 California. Declaration of Patrick Pittman (“Pittman Decl.,” ECF No. 11-1) ¶ 13. The 20 bankruptcy court granted USB relief from the automatic stay on March 8, 2022. ECF No. 21 11-2 at 67. On March 22, 2022, NDSC recorded the Notice of Trustee’s Sale, informing 22 Plaintiff that the non-judicial foreclosure sale of the Property would occur on May 6, 2022, 23 and that the estimated unpaid balance on the Property amounted to $704,583.80. Id. at 73. 24 The trustee’s sale subsequently was postponed to August 26, 2022. Pittman Decl. ¶ 16. 25 The property thereafter was sold to Bird Rock for $716.694.16. Id. ¶ 17. 26 Plaintiff filed her Complaint in the Superior Court of the County of San Diego on 27 May 5, 2022—three years after non-judicial foreclosure proceedings were initiated, and 28 more than a month after NDSC recorded the Notice of Trustee’s Sale. See generally 1 Compl. Defendants allege, and Plaintiff does not dispute, that after filing the Complaint, 2 Plaintiff failed to serve Defendants or move for injunctive relief. See Notice ¶ 2; TRO 3 Opp’n at 8. Following the removal of this action on August 22, 2022, Plaintiff finally 4 requested injunctive relief from this Court on September 9, 2022, two weeks after the 5 Property had already been sold to Bird Rock. See generally TRO Appl. Plaintiff has failed 6 to explain this delay. Accordingly, the Court finds that, while Plaintiff’s loss of the 7 Property constitutes real harm, Plaintiff’s delay in seeking injunctive relief weighs against 8 issuing a TRO. See Mammoth Specialty Lodging, LLC v. We-Ka-Jassa Inv. Fund, LLC, 9 No. CIVS10-0864 LKK/JFM, 2010 WL 1539811, at *2 (E.D. Cal. Apr. 16, 2010) (finding 10 plaintiff’s claim of irreparable harm was contradicted by plaintiff’s failure to seek 11 injunctive relief for several weeks after defendant recorded notice of trustee’s sale). 12 C. Balance of Hardships 13 “In balancing the equities, courts ‘must balance the competing claims of injury and 14 must consider the effect on each party of the granting or withholding of the requested 15 relief.’” U.S. Bank Nat’l Ass’n v. Friedrichs, 924 F. Supp. 2d 1179, 1186 (S.D. Cal. 2013) 16 (quoting Winter, 555 U.S. at 24)). When balancing hardships in the context of foreclosure 17 proceedings, courts often take into account not only the plaintiff’s potential loss of a home, 18 but also the defendant’s rights under a mortgage or DOT. See, e.g., Puruganan v. HSBC 19 Bank USA, Nat’l Ass’n, No. C 12-05168 SBA, 2012 WL 5503542, at *4 (N.D. Cal. Nov. 20 13, 2012) (“Plaintiffs’ claims that Defendants improperly commenced the foreclosure 21 process must be balanced against the fact that Plaintiffs have defaulted on their 22 mortgage.”); Quach v. Bank of Am., Nat’l Ass’n, No. 5:12-CV-05037 EJD, 2012 WL 23 4498873, at *4 (N.D. Cal. Sept. 28, 2012) (“[T]he court must be mindful that foreclosure 24 proceedings have commenced against Plaintiff due to her failure to pay according to the 25 terms of the Deed of Trust she executed. For this reason, Plaintiff’s complaint of 26 irregularity must be viewed with an eye of inequity.”); Wilson v. Wells Fargo Bank, No. C 27 11-03394 CRB, 2011 WL 3443635, at *3 (N.D. Cal. Aug. 5, 2011) (“Plaintiffs complain 28 loudly of alleged improprieties on Defendants’ part, but they ignore that it was their default 1 that put them in their current predicament. Further, equity does not favor allowing 2 Plaintiffs to avoid foreclosure having ceased making payments of any kind to anyone.”); 3 Herrejon v. Ocwen Loan Servicing, LLC, 980 F. Supp. 2d 1186, 1210 (E.D. Cal. 2013) 4 (“[T]he balance of equities weighs in defendants’ favor as the record suggests that plaintiffs 5 may have unauthorized access to the property without payment of outstanding amounts 6 owed and seek to delay foreclosure to extend their possession of the property.”); Haffeman 7 v. Wells Fargo Bank, N.A., No. 12CV00046 BTM WVG, 2012 WL 827034, at *5 (S.D. 8 Cal. Mar. 9, 2012) (“Defendant . . . has not collected mortgage payments on the Property 9 for over a year and a half. Thus, the balance of the equities does not tip sharply in favor of 10 Plaintiffs.”). 11 Here, the Court finds that the balance of hardships tips in Defendants’ favor. The 12 foreclosure proceedings were initiated three years ago as a result of Plaintiff’s default, and 13 Plaintiff provides no evidence that she has made any contractually due payments over that 14 period. See generally TRO Appl. Given such circumstances, granting an injunction at this 15 stage of the foreclosure proceedings on the basis of Plaintiff’s current allegations would 16 impose inequitable costs and unjustified delay on Defendants. 17 D. Public Interest 18 Finally, Plaintiff claims there is a public interest in preventing Defendants from 19 “unilaterally modifying loans to provide themselves rights and fees in the same or similar 20 unlawful manner as Defendants have in this case solely to gorge funds from consumers 21 nationwide.” TRO Appl. at 6. Even if such an interest were cognizable, Plaintiff has 22 provided no evidence to support her claims. Moreover, “[w]ithout a likelihood of success 23 on the merits and with the equities balanced against [Plaintiffs], issuing a preliminary 24 injunction to stop the foreclosure goes against the public interest of affording relief to those 25 deserving security on a defaulted loan.” Wilson, 2011 WL 3443635, at *3. Finally, 26 “[w]hen the reach of an injunction is narrow, limited only to the parties, and has no impact 27 on non-parties, the public interest will be at most a neutral factor in the analysis rather than 28 one that favor[s] in [granting or] denying the preliminary injunction.” Great Am. Ins. Co. 1 || v. JMR Constr. Corp., No. 215CV2226JCMNJK, 2015 WL 8328267, at *3 (D. Nev. Dec. 2 ||8, 2015) (citing Stormans, Inc. v. Selecky, 586 F.3d 1109, 1138-39 (9th Cir. 2009)) 3 || GQnternal quotation marks omitted) (alterations in original). Therefore, the Court finds that, 4 ||in the circumstances of this case, issuing a TRO would not be in the public interest. 5 Conclusion 6 Plaintiff has failed to meet any of the four elements required for the Court to issue a 7 || TRO and has therefore failed to satisfy either of the tests necessary for the issuance of a 8 || TRO in the Ninth Circuit. Accordingly, the Court DENIES Plaintiff's TRO Application. 9 CONCLUSION 10 In light of the foregoing, the Court GRANTS the Defendants’ Requests for Judicial 11 || Notice (ECF Nos. 2-2 & 11-2) in their entirety, GRANTS Defendants’ Motion to Dismiss 12 ||(ECF No. 2) in its entirety, DISMISSES WITHOUT PREJUDICE Plaintiffs claims, 13 DENIES Plaintiff's TRO Application (ECF No. 4). 14 Plaintiff MAY FILE an amended complaint within thirty (30) days of the date on 15 || which this Order is electronically docketed. Should Plaintiff elect to file an amended 16 || complaint, it must cure the deficiencies noted herein and must be complete in itself without 17 ||reference to Plaintiff's prior Complaint. See S.D. Cal. CivLR 15.1. Any claims not 18 ||realleged in the amended complaint will be considered waived. See Lacey v. Maricopa 19 || Caty., 693 F.3d 896, 925, 928 (9th Cir. 2012). 20 IT IS SO ORDERED. 21 Dated: October 5, 2022 (ee on. Janis L. Sammartino United States District Judge 23 24 25 26 27 28