Wise v. Wells Fargo Bank, N.A.
2012 U.S. Dist. LEXIS 53387
C.D. Cal.2012Background
- Plaintiff Margaret Wise purchased property at 2009 Ernest Ave, Redondo Beach, with a $940,000 loan from Wells Fargo.
- Plaintiff alleges Wells Fargo’s interest was not properly assigned to U.S. Bank as Trustee.
- Defendants allegedly executed and recorded a fabricated Assignment of Deed & Trust around August 2011.
- Plaintiff paid mortgage payments through 2008, then faced a default and denied a loan modification.
- Plaintiff originally sued in 2011 for multiple federal/state claims; FAC added four new causes of action; Defendants moved to dismiss; court addresses jurisdiction, standards, and claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Declaratory relief viability against U.S. Bank authority | Wise challenges U.S. Bank’s authority to foreclose. | Gomes framework bars challenging nominee authorization in court. | Court denies the motion as to the declaratory relief challenge (claims survive). |
| Invalid securitization/pooling theory as a matter of law | FAC alleges failures to follow PSA and NY trust law; unique facts support declaratory relief. | Plaintiff challenges typical securitization transfers; claims fail. | Court denies dismissal on this theory; FAC viable on securitization issues. |
| Tender requirements bar the claims | Tender not required when challenging the creditor’s rights; plaintiff ready to tender. | Must plead ability to tender sums owed. | Court denies tender dismissal; declaratory relief claim proceeds. |
| Negligence duty owed by Defendants | Defendants’ loan modification efforts show beyond-lender role. | No duty beyond conventional lending. | Court grants negligence claim dismissed without prejudice. |
| FDCPA viability against Defendants | Defendants are debt collectors under FDCPA; misapplication of debt claims. | Defendants not debt collectors; lacks clear default timing. | Court grants FDCPA claim dismissal without prejudice. |
Key Cases Cited
- Gomes v. Countrywide Home Loans, Inc., 192 Cal.App.4th 1149 (Cal. Ct. App. 2011) (challenges to a nominee’s authorization in foreclosure actions)
- Shimpones v. Stickney, 219 Cal.1934 (Cal. 1934) (tender generally required to quiet title against mortgagee)
- Kim v. Sumitomo Bank, 17 Cal.App.4th 974 (Cal. Ct. App. 1993) (no duty for lender-borrower; no special relationship for GFD)
- Mabry v. Superior Court, 185 Cal.App.4th 208 (Cal. Ct. App. 2010) (private right under 2923.5; remedy limited if foreclosure sale occurred)
- Martinez v. America’s Wholesale Lender, 446 Fed.Appx. 940 (9th Cir. 2011) (private right under 2923.5; postponement of foreclosure only)