(PS) Domantay v. NDEX West, LLC
2:15-cv-00788
E.D. Cal.Dec 21, 2015Background
- In 2007 Maribel Domantay obtained a $1,230,000 mortgage from World Savings Bank, FSB secured by a deed of trust on 814 Bridle Ridge Dr., Fairfield, CA.
- World Savings Bank, FSB later merged into Wells Fargo Bank, N.A.; NDEX West, LLC was substituted as trustee and filed a declaration of nonmonetary status (nominal party).
- Domantay alleges Wells Fargo lacked any enforceable interest because the loan was securitized/assigned, and that Wells Fargo/NDEX recorded a Notice of Default on December 22, 2009 and failed to contact her as required by Cal. Civ. Code § 2923.5; a rescission of the Notice of Default was recorded May 3, 2010.
- She pleaded multiple claims (statutory and common law): §2923.5 violation, injunctive relief, fraud by concealment, IIED, slander of title, quiet title, declaratory relief, rescission, UCL, and asserted RESPA, TILA, FDCPA theories.
- Wells Fargo moved to dismiss under Rule 12(b)(6); the court took judicial notice of public records (deed, note, notice of default/rescission and regulatory merger documents) and recommended dismissal with prejudice, finding the pleadings deficient and amendment futile.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ownership/standing to enforce deed of trust | Securitization/assignment removed Wells Fargo’s beneficiary interest and precluded enforcement | World Savings named “successors and assignees”; merger chain shows Wells Fargo is successor beneficiary; securitization doesn’t defeat enforcement | Dismissed — documents and authority show Wells Fargo is successor beneficiary; securitization does not bar enforcement |
| Cal. Civ. Code § 2923.5 (contact before NOD) | Wells Fargo failed to contact Domantay during the 30 days prior to recording NOD | No pending foreclosure; rescission of NOD; remedy (postponement) unavailable | Dismissed — no pending foreclosure and NOD was rescinded; §2923.5 relief unavailable |
| Fraud by concealment (securitization) | Wells Fargo concealed that the loan would be securitized and terms of PSA, causing damage | Securitization does not change borrower’s obligations; no causal damage from nondisclosure; claim inadequately pleaded | Dismissed — no causal connection/damages and failure to plead with required particularity; statute of limitations bar |
| Statutory and equitable claims, injunctive relief, and other torts (TILA/RESPA/FDCPA, IIED, slander, quiet title, UCL, rescission) | Various alleged statutory violations, emotional distress, title clouding, unfair business practices, and entitlement to rescission/injunction | Claims time-barred, lack factual support, are remedies not independent claims, or premised on failed theories (no foreclosure, rescinded NOD, no pecuniary loss) | Dismissed with prejudice — failures include statute of limitations, lack of standing to quiet title absent debt payment, no underlying claim to support UCL or injunctive relief, IIED not pled, slander lacks malice/pecuniary loss |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (plausibility standard for Rule 12(b)(6))
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading must state plausible claim; court need not accept conclusory allegations)
- Meyer v. Ameriquest Mortg. Co., 342 F.3d 899 (9th Cir.) (TILA nondisclosure occurs at signing)
- Mendoza v. JPMorgan Chase Bank, N.A., 228 Cal. App. 4th 1020 (Cal. Ct. App.) (securitization does not alter beneficiary’s standing to enforce deed of trust)
- Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965 (outrageous conduct standard for IIED)
- Christensen v. Superior Court, 54 Cal. 3d 868 (elements and limits of IIED)