Mayen v. Countrywide Home Loans, Inc.

S.D. California

Mayen v. Countrywide Home Loans, Inc.

DecidedJune 24, 2024

Docket3:23-cv-01915

StatusUnknown

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JULIO MAYEN, Case No.: 3:23-cv-01915-RBM-AHG

12 Plaintiff, ORDER GRANTING DEFENDANTS’ 13 v. MOTIONS TO DISMISS PLAINTIFF’S COMPLAINT WITH 14 COUNTRYWIDE HOME LOANS, INC., PREJUDICE et al., 15 Defendants. [Docs. 11, 13, 21, 22] 16 17 18 Pending before the Court is Defendant Countrywide Home Loans, Inc.’s 19 (“Countrywide”) motion to dismiss Plaintiff Julio Mayen’s (“Plaintiff”) Complaint (“MTD 20 1”). (Doc. 11-1.) Plaintiff filed an opposition brief to Defendant Countrywide’s MTD 1. 21 (Doc. 20.) Defendant Countrywide filed a reply brief. (Doc. 27.)1 22 Also pending before the Court is Defendants NewRez, LLC doing business as 23 Shellpoint Mortgage Servicing; The Bank of New York Mellon, as Trustee for the 24 Certificate Holders of CWMBS, Inc., CHL Mortgage Pass-Through Trust 2005-07, 25 Mortgage Pass-Through Certificates Series 2005-07 (“BNYM”); and Mortgage Electronic 26

27 1 In Countrywide’s reply brief, it explains that other Defendants substituted in new counsel 28 1 Registration Systems, Inc.’s (“MERS”) (“Remaining Defendants”) (collectively, 2 “Defendants”) motion to dismiss Plaintiff’s Complaint (“MTD 2”). (Doc. 13-1.) Plaintiff 3 filed an opposition brief to Remaining Defendants’ MTD 2. (Doc. 24.) Remaining 4 Defendants filed a reply brief. (Doc. 28.) 5 In MTD 1, Defendant Countrywide argues that judicial estoppel bars this entire case 6 because Plaintiff did not disclose his instant claims in any of his three prior bankruptcy 7 cases. (Doc. 11-1 at 9–12.) Defendant Countrywide contends that Plaintiff’s breach of 8 fiduciary duty claim fails because it did not owe him a fiduciary duty and the claim is 9 barred by the statute of limitations. (Id. at 12–14.) Defendant Countrywide argues that 10 Plaintiff’s breach of contract claim fails because he does not identify any contract between 11 the parties, any terms that were breached, damages suffered, or when the contract was 12 formed. (Id. at 14–15.) Defendant Countrywide argues Plaintiff’s federal consumer 13 protection law violation claim fails because he fails to identify the special purpose vehicle 14 (“SPV”) at issue or identify any violations other than allegedly not providing original 15 documents, for which a claim is barred by the statute of limitations. (Id.) Defendant 16 Countrywide also argues Plaintiff’s federal consumer protection claim is truly an argument 17 under the Federal Debt Collection Protection Act (“FDCPA”), which fails because the 18 FDCPA does not apply to Countrywide and the one-year statute of limitations has expired. 19 (Id. at 15.) Lastly, Defendant Countrywide argues Plaintiff’s request for declaratory and 20 injunctive relief fails. (Id. at 15–17.) 21 In MTD 2, Remaining Defendants argue that Plaintiff’s quiet title action in state 22 court precludes the Court’s jurisdiction over this quasi in rem action. (Doc. 13-1 at 13– 23 14.) Remaining Defendants argue Plaintiff’s breach of fiduciary duty claim fails because 24 he alleges no facts supporting a relationship beyond the conventional role of a lender and 25 cites no authority supporting such obligations. (Id. at 14–15.) Remaining Defendants 26 contend Plaintiff’s breach of contract claim fails because he does not allege which entity 27 refused payment, when, or how. (Id. at 15.) Remaining Defendants add that Plaintiff fails 28 to plead any contract terms, the breached terms, or the amount of damages suffered. (Id.) 1 Remaining Defendants argue Plaintiff’s claim under Section 27B of the Securities Act of 2 1933 does not apply to individual borrowers like Plaintiff. (Id. at 16.) Remaining 3 Defendants argue Plaintiff’s federal consumer protection law claim fails because he cites 4 no specific statute. (Id. at 16–17.) Remaining Defendants contend Plaintiff’s declaratory 5 and injunctive relief claims fail because they are not independent causes of action and there 6 is no sufficiently pled underlying cause of action. (Id. at 17–18.) Remaining Defendants 7 argue judicial estoppel bars Plaintiff’s claims. (Id. at 18–19.) Remaining Defendants 8 further contend Plaintiff impermissibly split his causes of action between the same parties 9 into different lawsuits. (Id. at 20–21.) Remaining Defendants argue Plaintiff’s insufficient 10 service of process warrants dismissal. (Id. at 21–22.) Lastly, Remaining Defendants argue 11 Sarah A. Mayen is an absent but necessary and indispensable party. (Id. at 22–23.) 12 The Court finds this matter suitable for determination without oral argument 13 pursuant to Civil Local Rule 7.1(d)(1). For the reasons discussed below, Countrywide’s 14 MTD 1 and Remaining Defendants’ MTD 2 (Docs. 11, 13.) are GRANTED and Plaintiff’s 15 Complaint is DISMISSED WITH PREJUDICE. 16 I. BACKGROUND 17 A. Plaintiff’s Complaint 18 The facts and claims alleged in Plaintiff’s Complaint are as follows. 19 1. Mortgage Agreement 20 Plaintiff entered into an originally signed mortgage and note agreement with some 21 SPV through a straw person who did not disclose the unknown investors underwriting the 22 loan, which violates state consumer protection laws and the Truth in Lending Law 23 (Regulation Z). (Doc. 1 (“Complaint”) ¶ 7.) The mortgage and note agreement include a 24 provision stating Plaintiff would pay a portion of the home’s purchase price and monthly 25 interest “in exchange for them not presenting or exhibiting the original instruments in 26 exchange for full ‘payment.’” (Id. ¶ 8.) Plaintiff struck out waiving notices, waiver 27 demand for payment, notice of dishonor, notice of default, right to due diligence, and 28 presentment clauses in the mortgage and note agreement. (Id. ¶ 9.) 1 2. Sale of Loan 2 Plaintiff was promised access to the original signed contracts and commercial 3 agreements with Countrywide, but upon request for those documents, Countrywide and 4 others stalled while making demands for payment notwithstanding billing errors. (Id. ¶¶ 5 10–11.) Countrywide and others informed Plaintiff that his loan account was sold to some 6 other party. (Id. ¶ 12.) Countrywide and others contacted Plaintiff asserting a debt without 7 showing him the original documents; Plaintiff has not been permitted to see chain of 8 custody of the documents so he may ascertain who is involved. (Id. ¶ 14.) Countrywide 9 and others disclaimed further interest and refused payment for the mortgage by explaining 10 the instruments were absorbed into another transaction that released Plaintiff from any 11 further obligation to pay. (Id. ¶¶ 15–16.) 12 3. Payments 13 Plaintiff sent payments to Countrywide and others but received billing statements 14 that did not acknowledge these payments nor Plaintiff’s release from the obligation to pay. 15 (Id. ¶ 17.) Countrywide and others refused more of Plaintiff’s payments and to exhibit the 16 original documents to Plaintiff “until legal proceedings and judicial scrutiny to avoid unjust 17 enrichment by tendering performance or legal tender to the wrong party or where none was 18 due any longer at all.” (Id. ¶ 18.) Countrywide and others sent a billing statement to 19 Plaintiff indicating a past due debt of $1 million or more despite Plaintiff’s accusations of 20 billing errors and refusal to provide the original documents. (Id. ¶ 19.) Upon information 21 and belief, Plaintiff sent an excessive amount of legal tender in certified funds to 22 Countrywide and others in good faith, which constitute unjust enrichment “if they cannot 23 abide the statute of frauds and holder/holder in due course agreements formed by the 24 striking of the presentment waiver and express agreement that when asked they would 25 allow Mayen to inspect original mortgage and note at any time upon request.” (Id. ¶ 20.) 26 Countrywide and others did not credit Plaintiff’s payments properly. (Id.

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JULIO MAYEN, Case No.: 3:23-cv-01915-RBM-AHG

12 Plaintiff, ORDER GRANTING DEFENDANTS’ 13 v. MOTIONS TO DISMISS PLAINTIFF’S COMPLAINT WITH 14 COUNTRYWIDE HOME LOANS, INC., PREJUDICE et al., 15 Defendants. [Docs. 11, 13, 21, 22] 16 17 18 Pending before the Court is Defendant Countrywide Home Loans, Inc.’s 19 (“Countrywide”) motion to dismiss Plaintiff Julio Mayen’s (“Plaintiff”) Complaint (“MTD 20 1”). (Doc. 11-1.) Plaintiff filed an opposition brief to Defendant Countrywide’s MTD 1. 21 (Doc. 20.) Defendant Countrywide filed a reply brief. (Doc. 27.)1 22 Also pending before the Court is Defendants NewRez, LLC doing business as 23 Shellpoint Mortgage Servicing; The Bank of New York Mellon, as Trustee for the 24 Certificate Holders of CWMBS, Inc., CHL Mortgage Pass-Through Trust 2005-07, 25 Mortgage Pass-Through Certificates Series 2005-07 (“BNYM”); and Mortgage Electronic 26

27 1 In Countrywide’s reply brief, it explains that other Defendants substituted in new counsel 28 1 Registration Systems, Inc.’s (“MERS”) (“Remaining Defendants”) (collectively, 2 “Defendants”) motion to dismiss Plaintiff’s Complaint (“MTD 2”). (Doc. 13-1.) Plaintiff 3 filed an opposition brief to Remaining Defendants’ MTD 2. (Doc. 24.) Remaining 4 Defendants filed a reply brief. (Doc. 28.) 5 In MTD 1, Defendant Countrywide argues that judicial estoppel bars this entire case 6 because Plaintiff did not disclose his instant claims in any of his three prior bankruptcy 7 cases. (Doc. 11-1 at 9–12.) Defendant Countrywide contends that Plaintiff’s breach of 8 fiduciary duty claim fails because it did not owe him a fiduciary duty and the claim is 9 barred by the statute of limitations. (Id. at 12–14.) Defendant Countrywide argues that 10 Plaintiff’s breach of contract claim fails because he does not identify any contract between 11 the parties, any terms that were breached, damages suffered, or when the contract was 12 formed. (Id. at 14–15.) Defendant Countrywide argues Plaintiff’s federal consumer 13 protection law violation claim fails because he fails to identify the special purpose vehicle 14 (“SPV”) at issue or identify any violations other than allegedly not providing original 15 documents, for which a claim is barred by the statute of limitations. (Id.) Defendant 16 Countrywide also argues Plaintiff’s federal consumer protection claim is truly an argument 17 under the Federal Debt Collection Protection Act (“FDCPA”), which fails because the 18 FDCPA does not apply to Countrywide and the one-year statute of limitations has expired. 19 (Id. at 15.) Lastly, Defendant Countrywide argues Plaintiff’s request for declaratory and 20 injunctive relief fails. (Id. at 15–17.) 21 In MTD 2, Remaining Defendants argue that Plaintiff’s quiet title action in state 22 court precludes the Court’s jurisdiction over this quasi in rem action. (Doc. 13-1 at 13– 23 14.) Remaining Defendants argue Plaintiff’s breach of fiduciary duty claim fails because 24 he alleges no facts supporting a relationship beyond the conventional role of a lender and 25 cites no authority supporting such obligations. (Id. at 14–15.) Remaining Defendants 26 contend Plaintiff’s breach of contract claim fails because he does not allege which entity 27 refused payment, when, or how. (Id. at 15.) Remaining Defendants add that Plaintiff fails 28 to plead any contract terms, the breached terms, or the amount of damages suffered. (Id.) 1 Remaining Defendants argue Plaintiff’s claim under Section 27B of the Securities Act of 2 1933 does not apply to individual borrowers like Plaintiff. (Id. at 16.) Remaining 3 Defendants argue Plaintiff’s federal consumer protection law claim fails because he cites 4 no specific statute. (Id. at 16–17.) Remaining Defendants contend Plaintiff’s declaratory 5 and injunctive relief claims fail because they are not independent causes of action and there 6 is no sufficiently pled underlying cause of action. (Id. at 17–18.) Remaining Defendants 7 argue judicial estoppel bars Plaintiff’s claims. (Id. at 18–19.) Remaining Defendants 8 further contend Plaintiff impermissibly split his causes of action between the same parties 9 into different lawsuits. (Id. at 20–21.) Remaining Defendants argue Plaintiff’s insufficient 10 service of process warrants dismissal. (Id. at 21–22.) Lastly, Remaining Defendants argue 11 Sarah A. Mayen is an absent but necessary and indispensable party. (Id. at 22–23.) 12 The Court finds this matter suitable for determination without oral argument 13 pursuant to Civil Local Rule 7.1(d)(1). For the reasons discussed below, Countrywide’s 14 MTD 1 and Remaining Defendants’ MTD 2 (Docs. 11, 13.) are GRANTED and Plaintiff’s 15 Complaint is DISMISSED WITH PREJUDICE. 16 I. BACKGROUND 17 A. Plaintiff’s Complaint 18 The facts and claims alleged in Plaintiff’s Complaint are as follows. 19 1. Mortgage Agreement 20 Plaintiff entered into an originally signed mortgage and note agreement with some 21 SPV through a straw person who did not disclose the unknown investors underwriting the 22 loan, which violates state consumer protection laws and the Truth in Lending Law 23 (Regulation Z). (Doc. 1 (“Complaint”) ¶ 7.) The mortgage and note agreement include a 24 provision stating Plaintiff would pay a portion of the home’s purchase price and monthly 25 interest “in exchange for them not presenting or exhibiting the original instruments in 26 exchange for full ‘payment.’” (Id. ¶ 8.) Plaintiff struck out waiving notices, waiver 27 demand for payment, notice of dishonor, notice of default, right to due diligence, and 28 presentment clauses in the mortgage and note agreement. (Id. ¶ 9.) 1 2. Sale of Loan 2 Plaintiff was promised access to the original signed contracts and commercial 3 agreements with Countrywide, but upon request for those documents, Countrywide and 4 others stalled while making demands for payment notwithstanding billing errors. (Id. ¶¶ 5 10–11.) Countrywide and others informed Plaintiff that his loan account was sold to some 6 other party. (Id. ¶ 12.) Countrywide and others contacted Plaintiff asserting a debt without 7 showing him the original documents; Plaintiff has not been permitted to see chain of 8 custody of the documents so he may ascertain who is involved. (Id. ¶ 14.) Countrywide 9 and others disclaimed further interest and refused payment for the mortgage by explaining 10 the instruments were absorbed into another transaction that released Plaintiff from any 11 further obligation to pay. (Id. ¶¶ 15–16.) 12 3. Payments 13 Plaintiff sent payments to Countrywide and others but received billing statements 14 that did not acknowledge these payments nor Plaintiff’s release from the obligation to pay. 15 (Id. ¶ 17.) Countrywide and others refused more of Plaintiff’s payments and to exhibit the 16 original documents to Plaintiff “until legal proceedings and judicial scrutiny to avoid unjust 17 enrichment by tendering performance or legal tender to the wrong party or where none was 18 due any longer at all.” (Id. ¶ 18.) Countrywide and others sent a billing statement to 19 Plaintiff indicating a past due debt of $1 million or more despite Plaintiff’s accusations of 20 billing errors and refusal to provide the original documents. (Id. ¶ 19.) Upon information 21 and belief, Plaintiff sent an excessive amount of legal tender in certified funds to 22 Countrywide and others in good faith, which constitute unjust enrichment “if they cannot 23 abide the statute of frauds and holder/holder in due course agreements formed by the 24 striking of the presentment waiver and express agreement that when asked they would 25 allow Mayen to inspect original mortgage and note at any time upon request.” (Id. ¶ 20.) 26 Countrywide and others did not credit Plaintiff’s payments properly. (Id. ¶ 21.) 27 Countrywide and others failed to hold partial payments per their stated policy, leading to 28 billing errors and unresolved disputes. (Id. ¶ 22.) 1 4. Claims 2 Plaintiff alleges Defendants breached their fiduciary duties by failing to provide him 3 access to the original documents, not honoring contract obligations to allow inspection, 4 and not requiring payment until that inspection occurs (First Cause of Action). (Id. ¶ 25.) 5 Plaintiff alleges Defendants breached their contract by failing to provide access to original 6 documents, refusing payment without proper justification or explanation, refusing to adjust 7 alleged monthly balances for the months original documents were not produced, and 8 through conflicts of interest (Second Cause of Action). (Id. ¶ 26.) Plaintiff alleges 9 Defendants violated SEC rules and regulations, specifically Section 27B, due to a lack of 10 transparency in the securitization process concerning the ownership of original instruments 11 and material conflicts of interest among participants in the securitization transaction (Third 12 Cause of Action). (Id. ¶ 27.) Plaintiff alleges Defendants violated federal consumer 13 protection laws through unfair and deceptive practices, including refusing payment without 14 proper explanation or documentation, failing to provide access to original documents, and 15 falsifying documents or forgery in violation of The Truth in Lending, Fair Credit Reporting 16 Laws, predatory lending practices proscriptions, and the Privacy Act (Fourth Cause of 17 Action). (Id. ¶ 23, 28.) Plaintiff seeks declaratory and injunctive relief (Fifth and Sixth 18 Causes of Action). (Id. ¶¶ 29–30.) 19 B. Judicially Noticed Documents2 20 1. The Property 21 On December 27, 2004, Plaintiff and co-borrower Sarah A Mayen executed a deed 22 of trust with Countrywide for a loan to secure a property in Jamul, California (the 23 “Property”). (Request for Judicial Notice (“RJN”) 1, Doc. 11-3 (Ex. 1) December 27, 2004 24 Deed of Trust.) On June 13, 2011, MERS, a nominee for Countrywide, assigned the 25

26 27 2 As explained infra at III.B, the Court takes judicial notice of the public records and docket entries Defendants attached to their motions to dismiss and in three separate requests for 28 1 beneficial interest under the deed of trust to BYNM. (RJN 2, Doc. 11-4 (Ex. 2) June 13, 2 2011 Assignment of Deed of Trust.) On June 23, 2023, a Notice of Default was recorded 3 due to Plaintiff’s default. (RJN 3, Doc. 11-5 (Ex. 3) June 23, 2023 Notice of Default and 4 Election to Sell Under Deed of Trust.) On September 25, 2023, a Notice of Trustee’s Sale 5 was recorded. (RJN 4, Doc. 11-6 (Ex. 4) September 25, 2023 Notice of Trustee’s Sale.) 6 2. Plaintiff’s Bankruptcies 7 On February 21, 2013, Plaintiff filed a Chapter 13 bankruptcy petition in the United 8 States Bankruptcy Court for the Southern District of California. (RJN 5, Doc. 11-7 (Ex. 5) 9 February 21, 2013 Bankruptcy Petition, Case No 3:13-01660-LT13, Doc. 1.) Plaintiff’s 10 schedules in that case did not disclose his current claims against Defendants as assets of 11 his estate. (RJN 6, Doc. 11-8 (Ex. 6) March 7, 2013 Schedule B-Personal Property.) On 12 May 3, 2013, the first bankruptcy was dismissed. (RJN 5, Doc. 11-7 (Ex. 5) February 21, 13 2013 Bankruptcy Petition, Case No 3:13-01660-LT13, Doc. 28.) 14 On August 22, 2016, Plaintiff filed a second Chapter 13 bankruptcy petition in the 15 United States Bankruptcy Court for the Southern District of California. (RJN 7, Doc. 11- 16 9 (Ex. 7) August 22, 2016 Bankruptcy Petition, Case No. 3:16-05104-LT13, Doc. 1.) 17 Plaintiff’s schedules in that case did not disclose his current claims against Defendants as 18 assets of his estate. (RJN 8, Doc. 11-10 (Ex. 8) September 19, 2016 Schedule B-Personal 19 Property.) On November 14, 2016, the second bankruptcy was dismissed. (RJN 7, Doc. 20 11-9 (Ex. 7) August 22, 2016 Bankruptcy Petition, Case No. 3:16-05104-LT13, Doc. 27.) 21 On November 28, 2016, Plaintiff filed a third Chapter 13 bankruptcy petition in the 22 United States Bankruptcy Court for the Southern District of California. (RJN 9, Doc. 11- 23 11 (Ex. 9) November 28, 2016 Bankruptcy Petition, Case No. 3:16-07181-LT13, Doc. 1.) 24 Plaintiff’s schedules in that case did not disclose his current claims against Defendants as 25 assets of his estate. (RJN 10, Doc. 11-12 (Ex. 10) – January 3, 2017 Schedule B-Personal 26 Property.) On March 6, 2017, the third bankruptcy was dismissed. ((RJN 9, Doc. 11-11 27 (Ex. 9) November 28, 2016 Bankruptcy Petition, Case No. 3:16-07181-LT13, Doc. 31.) 28 /// 1 3. Plaintiff’s Lawsuits 2 On September 5, 2013, Plaintiff filed a lawsuit in this district against Bank of 3 America as servicer of the Property. (RJN 11, Doc. 11-13 (Ex. 11) September 5, 2013 4 Lawsuit Against Bank of America, Civil Case No. #3:13-cv-02080-MMA-BGS, Doc. 1.) 5 Bank of America filed a motion to dismiss, which the district court granted on January 7, 6 2014. (Id., Doc. 6; (RJN 11, Doc. 11-13 (Ex. 12) Order Granting Motion to Dismiss, Civil 7 Case No. #3:13-cv-02080-MMA-BGS.) 8 On January 11, 2017, Plaintiff filed a second lawsuit in this district against New 9 Penn Financial, LLC. (RJN 12, Doc. 11-14 (Ex. 13) January 11, 2017 Lawsuit Against 10 New Penn Financial, LLC, Civil Case No. #3:17-cv-00050-JLS-MDD, Doc. 1.) New Penn 11 Financial, LLC filed a motion to dismiss, which the district court granted. (Id.; RJN 12, 12 Doc. 11-14 (Ex. 14) Order Granting Motion to Dismiss, Civil Case No. #3:17-cv-00050- 13 JLS-MDD, Docs. 35, 41.) Plaintiff filed a notice of appeal, and the appeal is pending. 14 (RJN 12, Doc. 11-14 (Ex. 13) Notice of Appeal, Civil Case No. #3:17-cv-00050-JLS- 15 MDD, Doc. 43.) 16 On October 10, 2023, Plaintiff filed a quiet title action against the Defendants in the 17 Superior Court of the State of California, County of San Diego. (RJN 13, Doc. 17 (Ex. 19) 18 Plaintiff’s Superior Court of the State of California, County of San Diego Complaint, Case 19 No. 37-2023-00043974-CU-OR-CTL.) 20 II. LEGAL STANDARD 21 “A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to 22 state a claim upon which relief can be granted ‘tests the legal sufficiency of a claim.’” 23 Conservation Force v. Salazar, 646 F.3d 1240, 1241–42 (9th Cir. 2011) (quoting Navarro 24 v. Block, 250 F.3d 729, 732 (9th Cir. 2001)). An action may be dismissed for failure to 25 allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. 26 v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff 27 pleads factual content that allows the court to draw the reasonable inference that the 28 defendant is liable for the misconduct alleged. The plausibility standard is not akin to a 1 ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant 2 acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted). 3 For purposes of ruling on a Rule 12(b)(6) motion, the Court “accept[s] factual allegations 4 in the complaint as true and construe[s] the pleadings in the light most favorable to the 5 nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 6 (9th Cir. 2008). 7 III. DISCUSSION 8 A. Motion to Strike 9 Plaintiff moves to strike Defendants’ MTD 1 and 2 as “dilatory and irrelevant 10 material laden misleading submissions with more harmful and prejudicial slant than 11 probative value.” (Doc. 22 at 3.) Plaintiff goes on to explain his theory as to why he no 12 longer has an obligation to pay the debt but does not address why he believes Defendants’ 13 MTD 1 and 2 are dilatory, irrelevant, misleading, or more prejudicial than probative. (See 14 id. at 3–6.) Defendants respond that these arguments fail as a matter of law and are barred 15 by judicial estoppel and the cause of action splitting doctrine. (Doc. 25 at 3–4.) Because 16 Plaintiff has failed to explain why MTD 1 and 2 must be stricken, the Court DENIES 17 Plaintiff’s motion to strike Defendants’ MTD 1 and 2 (Docs. 21, 22.). 18 B. Requests for Judicial Notice 19 Plaintiff filed a request for judicial notice but did not attach any documents for this 20 Court to notice. (See Doc. 6.) Defendants filed requests for judicial notice pertaining to 21 Plaintiff’s property, bankruptcies, and prior and current court cases. (See Docs. 11, 13, 15, 22 16, 17.) Plaintiff objects to several of Defendants’ requests for judicial notice. (Docs. 21, 23 22.) Specifically, Plaintiff challenges the validity and execution of a deed of trust, disputes 24 whether an assignment of deed was ever accepted, believes there may be errors or 25 inaccuracies in the notice of default and election to sell and notice of trustee sale. (Doc. 26 22 at 2–3 (citing Doc. 11-3 (Ex. 1), 11-4 (Ex. 2), 11-5 (Ex. 3), and 11-6 (Ex. 4).) 27 Defendants respond that these objections should be overruled because judicial notice of 28 these documents is proper, and the deed of trust and assignment were already judicially 1 noticed in his prior lawsuit in this district. (Doc. 25 at 2–3; Doc. 26 at 2–3.) 2 Under Federal Rule of Evidence 201(b), a court may take judicial notice, either on 3 its own accord or by a party’s request, of facts that are not subject to reasonable dispute 4 because they are (1) “generally known within the trial court’s territorial jurisdiction; or (2) 5 can be accurately and readily determined from sources whose accuracy cannot reasonably 6 be questioned.” Fed. R. Evid. 201(b). A court may also take judicial notice of “matters of 7 public record without converting a motion to dismiss into a motion for summary 8 judgment.” Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (internal citations 9 omitted); see also U.S. ex rel. Modglin v. DJO Glob. Inc., 48 F. Supp. 3d 1362, 1381 (C.D. 10 Cal. 2014) (“[T]he court can take judicial notice of [p]ublic records and government 11 documents available from reliable sources on the Internet, such as websites run by 12 governmental agencies.”) (internal quotations omitted). A court may also “take judicial 13 notice of the existence of another court’s opinion or of the filing of pleadings in related 14 proceedings.” Peel v. BrooksAmerica Mortg. Corp., 788 F.Supp.2d 1149, 1158 (C.D. Cal. 15 2011) (quoting Wyatt v. Terhune, 315 F.3d 1108, 1114 (9th Cir. 2003)). 16 Each of the documents Defendants proffer are properly subject to judicial notice. 17 These documents include (1) public records pertaining to ownership of Plaintiff’s Property, 18 mortgage default, and foreclosure sale; (2) bankruptcy docket filings in Plaintiff’s three 19 bankruptcy cases; (3) district court docket filings concerning Plaintiff’s lawsuits against 20 Bank of America and New Penn Financial, LLC; and (4) Plaintiff’s Complaint in a lawsuit 21 filed in the Superior Court of California, County of San Diego against Defendants. (See 22 Doc. 11-3–11-14 (Exs. 1–14); Doc. 17 (Ex. 19).) See Monaco v. Bear Stearns Residential 23 Mortg. Corp., 554 F. Supp. 2d 1034, 1036 n.1 (C.D. Cal. 2008) (“Pursuant to Federal Rule 24 of Evidence 201, the Court takes judicial notice of the Monacos’ deed of reconveyance.”) 25 (citing W. Fed. Sav. v. Heflin, 797 F. Supp. 790, 792 (N.D. Cal. 1992) (taking judicial 26 notice of documents in a county public record, including deeds of trust)); see also Reyn’s 27 Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) (taking judicial 28 notice of “several other pleadings, memoranda, expert reports, etc.” in related court 1 proceeding); Burbank–Glendale–Pasadena Airport Authority v. City of Burbank, 136 F.3d 2 1360, 1364 (9th Cir. 1998) (court took judicial notice of pleadings filed in a related state- 3 court action). These are “matters of public record whose accuracy cannot be questioned.” 4 Castaneda v. Saxon Mortg. Services, Inc., 687 F. Supp. 2d 1191, 1196 (E.D. Cal. 2009). 5 However, the Court does not take judicial notice of these documents for the truth of the 6 matters asserted in them. See Permito v. Wells Fargo Bank, No. C–12–00545 YGR, 2012 7 WL 1380322, *2 (N.D. Cal. Apr. 20, 2012) (“The Court will take judicial notice of the 8 dates, parties, and legally operative language of these documents, but not the truth of 9 various factual representations made in the documents.”). Accordingly, the Court 10 GRANTS Defendants’ requests for judicial notice and OVERRULES Plaintiff’s 11 objections. 12 C. Judicial Estoppel 13 Defendants argue that judicial estoppel bars this entire case because Plaintiff did not 14 disclose his instant claims in any of his three prior bankruptcy cases. (Doc. 11-1 at 9–12; 15 Doc. 13 at 18–19.) Plaintiff responds that judicial estoppel does not apply because there is 16 no prior judicial order adjudicating his claims that would preclude them. (Doc. 20 at 3.) 17 Plaintiff responds that judicial estoppel does not apply because his prior case in this district 18 dismissed on judicial estoppel grounds is currently pending review in the Ninth Circuit 19 Court of Appeals. (Doc. 24 at 6.) Plaintiff further argues he did not take any contrary 20 positions in a prior proceeding and a bankruptcy court is not judicial in nature under Article 21 III. (Id. at 6–9.) Defendants reply that Plaintiff’s argument that judicial estoppel does not 22 apply is devoid of substance and that claim preclusion is distinct from judicial estoppel. 23 (Doc. 27 at 2–3; Doc. 28 at 5–6.) 24 1. Case Law 25 Under the judicial estoppel doctrine, “[w]here a party assumes a certain position in 26 a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply 27 because his interests have changed, assume a contrary position, especially if it be to the 28 prejudice of the party who has acquiesced in the position formerly taken by him.” New 1 Hampshire v. Maine, 532 U.S. 742, 749 (2001) (quoting Davis v. Wakelee, 156 U.S. 680, 2 689 (1895)). “[S]everal factors typically inform the decision whether to apply the doctrine 3 in a particular case: First, a party’s later position must be ‘clearly inconsistent’ with its 4 earlier position. Second, courts regularly inquire whether the party has succeeded in 5 persuading a court to accept that party’s earlier position, so that judicial acceptance of an 6 inconsistent position in a later proceeding would create the perception that either the first 7 or the second court was misled.’ Absent success in a prior proceeding, a party’s later 8 inconsistent position introduces no ‘risk of inconsistent court determinations,’ and thus 9 poses little threat to judicial integrity. A third consideration is whether the party seeking 10 to assert an inconsistent position would derive an unfair advantage or impose an unfair 11 detriment on the opposing party if not estopped.” Id. at 750–51 (internal citations omitted). 12 “In enumerating these factors, we do not establish inflexible prerequisites or an exhaustive 13 formula for determining the applicability of judicial estoppel.” Id. at 751. 14 In Hamilton v. State Farm Fire & Casualty Company, the defendant insurer denied 15 the plaintiff’s insurance claim for water damage to and loss of items in a house he owned 16 due to plaintiff’s suspected vandalism and theft or at least violation of a concealment or 17 fraud provision of the insurance agreement. See 270 F.3d 778, 780–81 (9th Cir. 2001). 18 The plaintiff filed for Chapter 7 bankruptcy and listed a $160,000 vandalism loss on his 19 schedules but not any corresponding claim against the defendant insurer as assets of his 20 estate. Id. at 781. The bankruptcy court discharged the plaintiff’s debts. Id. However, 21 when the bankruptcy trustee sought to inquire as to the plaintiff’s pursuit of the alleged 22 vandalism loss, the plaintiff did not provide additional information and the trustee moved 23 to dismiss the plaintiff’s bankruptcy and vacate the discharge of his debts, which the 24 bankruptcy court granted. Id. The district court granted the defendant’s motion for 25 summary judgment in part due to judicial estoppel due to plaintiff’s failure to amend his 26 bankruptcy claims to include claims against the defendant. Id. at 780–82. On appeal, the 27 Ninth Circuit explained that “[i]n the bankruptcy context, a party is judicially estopped 28 from asserting a cause of action not raised in a reorganization plan or otherwise mentioned 1 in the debtor’s schedules or disclosure statements.” Id. at 783 (citations omitted). The 2 Ninth Circuit held the plaintiff asserted inconsistent positions by failing “to list his claims 3 against State Farm as assets on his bankruptcy schedules, and then later sued State Farm 4 on the same claims.” Id. at 784. The Ninth Circuit held that the plaintiff “is precluded 5 from pursuing claims about which he had knowledge, but did not disclose, during his 6 bankruptcy proceedings, and that a discharge of debt by a bankruptcy court, under these 7 circumstances, is sufficient acceptance to provide a basis for judicial estoppel, even if the 8 discharge is later vacated.” Id. The Ninth Circuit clarified that its “holding does not imply 9 that the bankruptcy court must actually discharge debts before the judicial acceptance 10 prong may be satisfied. The bankruptcy court may ‘accept’ the debtor’s assertions by 11 relying on the debtor’s nondisclosure of potential claims in many other ways.” Id. 12 (citations omitted). The Ninth Circuit then held that “[j]udicial estoppel will be imposed 13 when the debtor has knowledge of enough facts to know that a potential cause of action 14 exists during the pendency of the bankruptcy, but fails to amend his schedules or disclosure 15 statements to identify the cause of action as a contingent asset.” Id. (citations omitted). 16 2. Analysis 17 Here, the Court concludes that Plaintiff is judicially estopped from asserting his 18 claims in this case. See Ah Quin v. Cnty. of Kauai Dep't of Transp., 733 F.3d 267, 271 (9th 19 Cir. 2013) (“In the bankruptcy context, the federal courts have developed a basic default 20 rule: If a plaintiff-debtor omits a pending (or soon-to-be-filed) lawsuit from the bankruptcy 21 schedules and obtains a discharge (or plan confirmation), judicial estoppel bars the 22 action.”). While Plaintiff’s Complaint omits any reference to the timing of his allegations, 23 the Court deduces that they concern a 2004 mortgage and note agreement, alleged 24 subsequent payments, and an alleged discharge of debt following the transfer of beneficial 25 title from Defendant Countrywide to Defendant BNYM in 2011. Thus, the events appear 26 to precede each of Plaintiff’s three bankruptcies, or at least the latter two. The Court now 27 addresses the three judicial estoppel factors. 28 First, Plaintiff asserted inconsistent positions in his three bankruptcy cases and the 1 instant case by not disclosing any claims against the Defendants in his bankruptcy 2 schedules despite his knowledge of the underlying events preceding those bankruptcies. 3 Accordingly, Plaintiff had “knowledge of enough facts to know that a potential cause of 4 action exists during the pendency of the bankruptcy,” Hamilton, 270 F.3d at 784, yet failed 5 to disclose him claims against Defendants in any of his bankruptcy schedules. Thus, 6 Plaintiff has taken inconsistent positions. See id. (explaining plaintiff took inconsistent 7 positions by failing “to list his claims against State Farm as assets on his bankruptcy 8 schedules, and then later sued State Farm on the same claims.”). 9 Second, the Court determines the bankruptcy court accepted Plaintiff’s position by 10 granting automatic stays for the duration of his three bankruptcies even if each bankruptcy 11 case was eventually dismissed. See id. (explaining bankruptcy court need not actually 12 discharge debts for judicial acceptance prong so long as relies on debtor’s nondisclosure 13 of potential claims in some way); see also Sharp v. Nationstar Mortg., LLC, Case No. 14- 14 CV-00831-LHK, 2014 WL 4365116, at *6 (N.D. Cal. Sept. 3, 2014) (explaining the 15 granting of automatic stays is sufficient to meet judicial acceptance prong); Swendsen v. 16 Ocwen Loan Servicing, LLC, No. 2:13-CV-02082-TLN-CKD, 2014 WL 1155794, at *6 17 (E.D. Cal. Mar. 21, 2014) (same). 18 Third, Plaintiff derived an unfair advantage by receiving the benefit of automatic 19 stays without disclosing all of his potential assets. See Swnedsen, 2014 WL 1155794, at 20 *6 (“The law in this area is clear: a plaintiff who has received the benefit of an automatic 21 stay under 11 U.S.C. § 362(a) would receive an unfair advantage by prosecuting claims 22 against a defendant after failing to disclose those claims in his bankruptcy proceedings.”). 23 Therefore, the Court determines Plaintiff’s instant claims against Defendants are 24 judicially estopped, and the Court need not reach the parties’ remaining arguments. 25 D. Leave to Amend 26 Leave to amend is generally granted unless the Court harbors concerns “such as 27 undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure 28 deficiencies by amendments previously allowed, undue prejudice to the opposing party by 1 virtue of allowance of the amendment, futility of the amendment, etc.” Foman v. Davis, 2 371 U.S. 178, 182 (1962). Because Plaintiff’s instant claims against Defendants are barred 3 by judicial estoppel, the Court determines amendment would be futile. See Carr v. Beverly 4 Health Care & Rehab. Servs., Inc., No. C-12-2980 EMC, 2013 WL 5946364, at *6 (N.D. 5 Cal. Nov. 5, 2013) (dismissing complaint with prejudice where “there is no plausible basis 6 for finding that judicial estoppel should not apply.”); Otter v. Northland Grp., Inc., No. 12- 7 2034-RSM, 2013 WL 2243874, at *4 (W.D. Wash. May 21, 2013) (“Since the application 8 of judicial estoppel acts as an absolute bar to plaintiff’s claim, no leave shall be granted 9 and the complaint is dismissed with prejudice.”). 10 IV. CONCLUSION 11 For the foregoing reasons, the Court GRANTS Defendants’ MTD 1 and MTD 2 12 (Docs. 11, 13) and DISMISSES Plaintiff’s Complaint WITH PREJUDICE. 13 IT IS SO ORDERED. 14 DATE: June 24, 2024 15 _____________________________________ HON. RUTH BERMUDEZ MONTENEGRO 16 UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28

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