Conant v. Wells Fargo Bank, N.A.Conant v. Wells Fargo Bank, N.A.
Paul A. Kaplan, Womble Carlyle Sandridge & Rice, LLP, Business Litigation, Drew E. Shenkman, Holland & Knight, LLP, Washington, DC, for Defendants.
MEMORANDUM OPINION
COLLEEN KOLLAR-KOTELLY, United States District Judge
Plaintiff Terry Walter Conant (“Conant” or “Plaintiff“) brings this action pro se challenging the foreclosure of his property. Presently before the Court are motions by several Defendants for dismissal of this lawsuit. Also before the Court are several motions by Plaintiff arguing that certain Defendants are in default, as well as a motion to strike filed by Defendants Wells Fargo Bank, N.A., and Anglin, Flewelling, Rasmussen, Campbell & Trytten, LLP. Upon consideration of the pleadings1, the
I. BACKGROUND
A. Factual Background
Before proceeding to the facts of this case, the Court must clarify several preliminary issues of dispute. Plaintiff initially filed a fifty-four page Complaint in this action on April 19, 2013, which generally challenged the propriety of the foreclosure action against him by Defendant Wells Fargo Bank, N.A. (“Wells Fargo“) and its agents. See generally Compl. On May 30, 2013, Defendants Wells Fargo and Anglin, Flewelling, Rasmussen, Campbell & Trytten LLP (“AFRCT“) filed their [6] Motion to Dismiss Pursuant to
The Court notes that Defendants’ motion is brought in part as a motion for summary judgment under
Federal Rule of Civil Procedure 56 . Plaintiff is warned that, on a motion for summary judgment, “any factual assertions in the movant‘s affidavits will be accepted by the district judge as being true unless [the opposing party] submits his own affidavits or other documentary evidence contradicting the assertion.” Neal v. Kelly, 963 F.2d 453, 456 (D.C.Cir.1992) (quoting Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir.1982)). In other words, a party opposing a motion for summary judgment, such as Plaintiff, may not rebut the factual assertions set forth in the moving party‘s affidavits, sworn statements, or other materials simply by claiming that those factual assertions are false or incorrect. Instead, the party opposing summary judgment must either (a) show that the materials relied upon by the moving party do not establish the absence or presence of a genuine dispute, or (b) come forward with its own affidavits, sworn statements, or other competent materials contradicting the moving party‘s assertions. SeeFed.R.Civ.P. 56(c)(1) . In so doing, the party must point to specific parts of the record that support its argument; the Court need not consider materials not specifically identified. SeeFed.R.Civ.P. 56(c)(3) .
Order (May 31, 2013), ECF No. [8] at 2. In his responsive pleading, Plaintiff did not provide additional materials supporting his claims or specifically respond to Wells Fargo and AFRCT‘s statement of facts.
Defendants Wells Fargo and AFRCT subsequently moved to strike the portion of Plaintiff‘s affidavit in which he stated that “all statements, representation of facts and circumstances portrayed in the Original Complaint and all subsequent pleadings made by me in the above styled case are true and correct based on knowledge and belief.” See Wells Fargo Mot. to Strike at 1. The Court denies this motion to strike. In opposing Defendant Wells Fargo and AFRCT‘s motion for summary judgment, Plaintiff has apparently chosen to transform his Complaint into a verified complaint, and to rely on thе materials previously submitted to the Court. Accordingly, although Plaintiff has not rebutted the factual statement contained in Wells Fargo‘s motion to dismiss, or in the alternative, for summary judgment, he has essentially offered his complaint as an opposing statement of facts. To the extent the statements in this document and subsequent filings prior to the filing of Plaintiff‘s Opposition are supported by materials in the record that have been submitted by Plaintiff, the Court will consider them in assessing Defendants’ motion for summary judgment.
In making this assessment, the Court must also clarify which of Plaintiff‘s prior pleadings are properly before the Court. On July 26, 2013, Plaintiff filed a[ 14] Motion to Portray and Assert the Certified Securitization Audit, with Memorandum of Law. In this filing, Plaintiff asserts that Wells Fargo is not the owner of his loan, but rather that the loan was securitized and sold on the secondary mortgage securities market. Pl.‘s Mot. to Portray at 1-2. Much of this filing is incomprehensible, and consists of seemingly irrelevant boilerplate discussion of Florida law that is irrelevant to this case. Id., Ex. 1 (Memorandum of Points and Authorities in Support of Plaintiff‘s Plaintiff‘s [sic] Motion to Portray and Assert the Certified Securitization Audit, with Memorandum of Law). However, this filing also includes as an exhibit a “Property Securitization Analysis Report” prepared by a company called Mortgage Compliance Investigators. Id., Ex. 2 (Property Securitization Analysis Report). This document contains an affidavit from an individual named Damion Emholtz who states that he is a private investigator who has researched the ownership of Plaintiff‘s mortgage. Id., Ex. 2 at 13, 15-17. In response to Plaintiff‘s filing, Defendants filed an opposition, arguing that Plaintiff‘s motion should be stricken as incomprehensible and irrelevant. Def.‘s Opp‘n to Pl.‘s Mot. to Portray at 1-3. The Court disagrees. While much of Plaintiff‘s motion consists of unclear or irrelevant text, the portions of the motion cited above appear to relate to an issue seemingly in dispute in this case, the ownership of Plaintiff‘s mortgage. In addition, Defendants do not contest the validity of Plaintiff‘s exhibit, other than to reference their own competing factual allegations submitted in their motion to dismiss, or in the alternative, for summary judgment. Id. at 3. Accordingly, Plaintiff‘s [14] Motion to Portray and Assert the Certified Securitization Audit, with Memorandum of Law and the attached exhibits will be considered by the Court in addressing Defendant‘s motion to dismiss, or in the alternative, for summary judgment. However, for reasons discussed infra, the Court re-quests
Having resolved these issues, the Court proceeds to the facts as set out by the parties. Where the parties are in dispute, these disagreements are noted. In August 2007, Plaintiff borrowed $820,000.000 from World Savings Bank. Compl., Ex. B (Deed of Trust). This loan was documented by an Adjustable Rate Note and secured by a deed of trust on property located at 2191 Lindenwood Drive, South Lake Tahoe, California. Id. In December 2007, World Savings Bank changed its name to Wachovia Mortgage, FSB. Wells Fargo MTD, Ex. B (World Savings Bank, FSB, Oakland, California, Notice of Amendment of Charter and Bylaws). In November 2009, Wachovia Mortgage, FSB changed its name to Wells Fargo Bank Southwest, N.A., and merged into Defendant Wells Fargo. Id., Ex. D (Application to convert Wachovia Mortgage, FSB, North Las Vegas, Nevada to a national bank and application to merge the converted bank with and into Wells Fargo Bank). In 2011, Plaintiff defaulted on his payments and Defendant Wells Fargo initiated nonjudicial foreclosure proceedings. Id. Ex. F (Notice of Default and Election to Sell Under Deed of Trust). In August 2011, the foreclosure trustee, NDeX West, recorded a Notice of Default with the El Dorado County Recorder‘s Office. Id. Plaintiff sought to delay this foreclosure with two prior court actions. First, Plaintiff filed a bankruptcy proceeding in the United States Bankruptcy Court for the Northern District of California. See Conant v. Wells Fargo Bank, N.A., No. 12–25594-A-13J (Bankr.N.D.Cal.); Second, Plaintiff challenged Wells Fargo‘s right to foreclose in a civil action in California state court before thе El Dorado County Superior Court. See Conant v. Wells Fargo Bank, N.A., No. SC20120220 (Cal.Super.Ct.). In both of these actions, Defendant AFRCT was counsel of record for Defendant Wells Fargo. Wells Fargo MTD, Ex. N (Declaration of Robert Bailey)
The parties are in dispute as to whether Wells Fargo is the owner of Plaintiff‘s mortgage and has the ability to foreclose. In support of its position that it holds Plaintiff‘s mortgage, Wells Fargo has provided a March 2010 loan agreement between it and Plaintiff with respect to the property located at 2191 Lindenwood Drive, South Lake Tahoe, California. Id., Ex. E. (Loan Modification Agreement). This agreement describes Wells Fargo as the “Lender” and Plaintiff as the “Borrower.” Id. In response, Plaintiff argues that Wells Fargo is not the holder of Plaintiff‘s mortgage. In making this claim, Plaintiff argues that his mortgage has been securitized and sold on a secondary mortgage market. See, e.g., Pl.‘s Mot. to Portray at 1-2. As support for this position, Plaintiff relies primarily on the above-referenced “Property Securitization Analysis Report” prepared by a company called Mortgage Compliance Investigators. Id., Ex. 2. This document contains a sworn affidavit from an individual named Damion Emholtz who states that he has researched Plaintiff‘s loan and determined that “the loan is an asset in the WORLD SAVINGS BANK REMIC 30. My research also shows that the loan was current in its status as a performing asset in this pool of mortgage-backed securities prior to going into foreclosure.” Id., Ex. 2 at 16. Perhaps because the Court had not yet addressed Plaintiff‘s [14] Motion to Portray and Assert the Certified Securitization Audit, with Memorandum of Law, Defendants do not address this filing, its contents, or its relevance to Plaintiff‘s claims. See Def.‘s Opp‘n to Pl.‘s Mot. at 1-3 (arguing that this filing should be stricken).
Plaintiff filed suit in this Court on April 19, 2013 seeking declaratory and injunctive relief to stop the foreclosure action against him. Compl. at 47-49. Plaintiff also sought monetary damages in the event his complaint was opposed. Id. at 49-50. Plaintiff named as Defendants in this action Wells Fargo, AFRCT, NDEX West, Sheriff-Coroner John D. Agostini, in his official capacity of as Sheriff of Eldorado County, California, the Clerk of the Court of Eldorado County, California, and twenty John Doe Defendants (“John Does 1-20“).2 Id. at 1. One sentence in Plaintiff‘s Complaint also seeks damages against Agency Sales and Posting (“ASAP“). Id. at 50. However, Plaintiff fails to mention this potential additional Defendant in the case caption of his Complaint or discuss them anywhere else in the filing.
Read liberally, Plaintiff‘s Complaint appears to allege the following claims. First, Plaintiff alleges that the Defendants are in violation of the Consent Judgment entered into by Wells Fargo and several other banks in United States v. Bank of America Corp., et al., No. 12-0361 (D.D.C. Apr. 4, 2012). Second, Plaintiff alleges more generally that Wells Fargo is not the owner of his mortgage and is therefore improperly foreclosing on his home. Id. at 11. Third, and relatedly, Plaintiff alleges that Wells Fargo‘s attempt at foreclosure in the absence of ownership of his mortgage constitutes fraud. Id. at 32. Fourth, Plaintiff alleges that this fоreclosure process constitutes a deprivation of his due process rights. Id. at 37. Fifth, Plaintiff argues that in foreclosing on his home, Plaintiffs are in violation of the Fair Debt Collection Practices Act (“FDCPA“),
Defendants Wells Fargo, AFRCT, ASAP and NDeX West subsequently filed motions to dismiss, or in the alternative, motions for summary judgment. See Wells Fargo MTD; ASAP MTD; NDEX MTD. Plaintiff has also filed several motions arguing that various Defendants are in default. See Pl.‘s Mot. for Default J.; Pl.‘s Mot. to Quash ASAP MTD; Pl.‘s Mot. to Quash Wells Fargo MTD.
II. LEGAL STANDARD
A. Rule 12(b)(2)
When personal jurisdiction is challenged under
B. Rule 12(b)(5)
A court ordinarily may not exercise personal jurisdiction over a party named as a defendant in the absence of service of process (or waiver of service by the defendant). See Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999) (citing Omni Capital Int‘l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104, 108 (1987) (“Before a court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied.“); Mississippi Publishing Corp. v. Murphree, 326 U.S. 438, 444-45 (1946) (“[S]ervice of summons is the procedure by which a court ... asserts jurisdiction over the person of the party served.“)). Pursuant to
C. Rule 12(b)(6)
Pursuant to
In evaluating a
D. Rule 56
Defendants Wells Fargo and AFRCT have filed motions seeking dismissal for failure to state a claim, or in the alternative, summary judgment. Pursuant to
Summary judgment is appropriate where “the movant shows that there is no genuine dispute as to any material fact and [that he] is entitled to judgment as a matter of law.”
In order to establish that a fact is or cannot be genuinely disputed, a party must (a) cite to specific parts of the record—including deposition testimony, documentary evidence, affidavits or declarations, or other competent evidence—in support of her position, or (b) demonstrate that the materials relied upon by the opposing party do not actually establish the absence or presence of a genuine dispute.
When faced with a motion for summary judgment, the district court may not make
III. DISCUSSION
A. Dismissal for Lack of Personal Jurisdiction
Defendants AFRCT and NDeX West have moved to dismiss Plaintiff‘s Complaint for, inter alia, lack of personal jurisdiction. Wells Fargo MTD at 5-6. NDEX West MTD at 3-4. The Court agrees that Plaintiff has failed to establish personal jurisdiction over these Defendants, and accordingly Plaintiff‘s claims against these Defendants are dismissed pursuant to
In this Circuit, courts determine whether personal jurisdiction may be exercised “by reference to District of Columbia law.” United States v. Ferrara, 54 F.3d 825, 828 (D.C.Cir.1995). “A District of Columbia court may exercise personal jurisdiction over a person domiciled in, organized under the laws of, or maintaining his or its principal place of business in, the District of Columbia as to any claim for relief.”
To determine whether it may exercise specific jurisdiction over a particular defendant, a court must engage in a two-part inquiry. First, the Court must determine that the District of Columbia‘s long arm statute,
(even when subject matter jurisdiction is predicated on federal question, plaintiffs must rely on the D.C. long-arm statute to assert personal jurisdiction over out-of-district defendants). Second, the court must find that exercise of jurisdiction comports with the requirements of constitutional due process. See GTE New Media Servs., 199 F.3d at 1347. This determination turns on whether a defendant‘s “minimum contacts” with the District of Columbia establish that “the maintenance of the suit does not offend traditional notions of fair play аnd substantial justice.” Int‘l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (internal citation and quotation marks omitted).
Such minimum contacts must arise from some act by which the defendant “purposefully avails” himself of the privilege of conducting activities within the District of Columbia, thus invoking the “benefits and protections of its laws.” Asahi Metal Indus. Co. v. Super. Ct. of Cal., Solano Cty., 480 U.S. 102, 109 (1987). Put differently, the court “must insure that the defendant‘s conduct and connection with the forum ‘are such that he should reasonably anticipate being hauled into court there.’ ” Marshall v. Labor & Indus., State of Washington, 89 F.Supp.2d 4, 9 (D.D.C.2000) (citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980)).
Here, Plaintiff‘s Complaint fails entirely to demonstrate that this Court has personal jurisdiction over Defendants AFRCT and NDeX West. The Complaint alleges no facts suggesting that these Defendants transacted business, contracted to supply services, or caused tortious injury in the District of Columbia. Indeed, the only mention of personal jurisdiction Plaintiff makes in the Complaint is the following:
This court has jurisdiction over its own prior court orders and under the Long Arm Statute for Washington, DC, which gives the District Court jurisdiction over those who do business in the District of Columbia or enter into a contract for services in Washington, DC. WELLS FARGO BANK, NA entered into a contract in WASHINGTON, DC and did business in Washington, DC when they entered into the Consent Decree discussed above. WELLS FARGO BANK, NA has directed the actions and conduct of all other defendants either directly or by and through proxies to foreclose for WELLS FARGO BANK, NA.
Compl. at 2-3. As discussed, infra, Plaintiff has failed to state a claim against Defendants for violation of the Consent Judgment in of United States v. Bank of America Corp., et al., No. 12–0361 (D.D.C. Apr. 4, 2012), the “contract” entered into
B. Dismissal for Failure to Serve
A court ordinarily may not exercise personal jurisdiction over a party named as a defendant in the absence of service of process (or waiver of service by the defendant). See Murphy Bros., Inc., 526 U.S. at 350 (citing Omni Capital Int‘l, Ltd., 484 U.S. at 104, 108 (“Befоre a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied.“); Mississippi Publishing Corp., 326 U.S. at 444-45 (“[S]ervice of summons is the procedure by which a court ... asserts jurisdiction over the person of the party served.“)). Pursuant to
Pursuant to
C. Dismissal for Failure to State a Claim (Defendant ASAP)
Defendant ASAP asserts that Plaintiff has failed to state a cause of action against it, and the Court agrees. ASAP MTD at 1-2. As an initial matter, Plaintiff fails to list ASAP in the case caption. See
I, Terry Conant, the Plaintiff in this matter, demand punitive damages ... FOR ENGAGING IN ACTS OF OPPRESSION, FRAUD, AND MALICE, from the defendant AGENCY SALES & POSTING the [sic] in the amount of $80,000.00, SILVER SPECIE sum certain payable in silver one ounce coins minted by the United States Treasury, if the suit is contested ...
Compl. at 50. The remainder of the Complaint contains no mention of ASAP, much less any substantive allegations against this Defendant. Indeed, to the extent this brief mention of ASAP can be read to raise a claim of fraud, Plaintiff fails to meet the applicable heightened pleading requirements. “In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intеnt, knowledge, and other conditions of a person‘s mind may be alleged generally.”
D. Plaintiff‘s Claims Against Wells Fargo
Based on the preceding discussion, the only remaining Defendant in this suit is
1. Enforcement of Consent Judgment
Plaintiff‘s primary cause of action asserts that the Defendants, primarily Wells Fargo, are in violation of the Consent Judgment entered into by Wells Fargo and several other banks in United States v. Bank of America Corp., et al., No. 12-0361 (D.D.C. Apr. 4, 2012), ECF No. 14 (Consent Judgment). Wells Fargo has moved to dismiss this claim, arguing that because Plaintiff was not a party to this Consent Judgment, he is unable to enforce any obligation imposed upon the parties to the judgment. The Court agrees, as by its terms, this Consent Judgment is not enforceable by individual third-party beneficiaries. The Consent Judgment specifically states that enforcement actions may be brought by a “Party to this Consent Judgment or the Monitoring Committee.” Id., Ex. E (Enforcement Terms) at E-15. Plaintiff, as an individual mortgagee, is neither party to the Consent Judgment nor a member of the monitoring committee. Other courts in this district considering identical claims from other individual homeowner plaintiffs have reached the same conclusion. See, e.g., McCain v. Bank of America, No. 13-cv-1418, 13 F.Supp.3d 45, 2014 WL 334196, at *7 (D.D.C. Jan. 30, 2014) (“The plaintiff was not a party to this consent judgment, and therefore, is unable to enforce any obligation imposed upon the parties to the judgment.“); Glaviano v. J.P. Morgan Chase Bank, N.A., No. 13-cv-2049, 2013 WL 6823122, at *1 n. 1 (D.D.C. Dec. 27, 2013) (“Plaintiffs also erroneously claim that the foreclosure sale of their property is prohibited by the Consent Orders issued in United States v. Bank of America .... Plaintiffs were not parties in United States v. Bank of America, which dealt with mortgage servicing, origination, and certification in general and did not involve Plaintiffs’ mortgage or any other particular mortgage.“); Ghaffari v. Wells Fargo Bank, N.A., No. 13-115, 6 F.Supp.3d 24, 2013 WL 6070364, at *4 (D.D.C. Nov. 19, 2013) (“claims by individual borrowers, such as Plaintiff, are excluded from the Consent Judgment“); see also SEC v. Prudential Sec. Inc., 136 F.3d 153, 158 (D.C.Cir.1998) (“this circuit has opted for a bright line rule ... that third parties to government consent decrees cannot enforce those decrees absent an explicit stipulation by the government to that effect.“) (internal citation omitted). Accordingly, all of Plaintiff‘s claims against Wells Fargo relating to violation of the Consent Judgment in United States v. Bank of America Corp., et al., No. 12-0361 (D.D.C. Apr. 4, 2012) are dismissed.
2. Due Process
Plaintiff next asserts that Wells Fargo (in addition to the other dismissed Defendants) violated his due process rights “in their continuing theft of [his] private property.” Compl. at 38. Plaintiff asserts that by “claim[ing] to have a security interest in [his] private land and home and personal property and claim[ing] authority to hold a foreclosure sale” Defendants are “attempt[ing] to deprive [him] of [his] liberty and property without due process of law.” Id. at 39. However, because Wells Fargo is not a state actor, Plaintiff‘s claim for violation of his due process rights fails. “In order to trigger the Due Process Clause of the Fourteenth Amendment, or a comparable federal action to invoke the Fifth Amendment, there must be a ‘state action.’ ” Simms v. Dis- trict of Columbia, 699 F.Supp.2d 217, 224 (D.D.C.2010). The Due Process Clause “offers no shield” against “private conduct, however discriminatory or wrongful.” Jackson v. Metropolitan Edison Co., 419 U.S. 345, 349 (1974) (internal quotation marks omitted). Here, Wells Fargo is not a government actor and its efforts to foreclose on Plaintiff‘s property, even if accomplished through interactions with the El Dorado County Clerk‘s office, do not constitute state action. See United States v. Property Identified as Lot Numbered 718, 983 F.Supp. 9, 11 (D.D.C.1997) (“While [plaintiff] may face eviction if her lender forecloses on the residence, that ‘seizure’ by a strictly private actor does not trigger the due process clause.“). In light of the lack of state action here, Plaintiff‘s claim that Wells Fargo violated his due process rights is dismissed.
3. Remaining Claims Against Wells Fargo
Reviewing Plaintiff‘s Complaint, the Court discerns four remaining claims against Defendant Wells Fargo. First, citing to various California statutes and provisions of the Uniform Commercial Code, Plaintiff asserts generally that Defendant Wells Fargo lacks standing to foreclose on his mortgage because it does not have possession of Plaintiff‘s mortgage. See, e.g., Compl. at 11 (“The question of ownership of the note is a vital part of determining who has the right to foreclose and sell the property.“). Second, Plaintiff claims that Wells Fargo has committed fraud by improperly foreclosing on his mortgage. See id. at 32 (“The overt act of fraud occurred when the Assignment of Mortgage was recorded and subsequently when the Defendants started the foreclosure action to sell and to subsequently evict the Plaintiff from his home.... These fraudulent acts were designed tо mislead us into believing that WELLS FARGO BANK, N.A. has an enforceable interest in the note and mortgage, which they clearly do not.“). Third, Plaintiff appears to allege a violation of the FDCPA. Id. at 28, 36. Finally, Plaintiff asserts that the allegedly improper foreclosure of his home constitutes intentional infliction of emotional distress. Id. at 37-38, 46. The Court requests additional briefing from the parties as to these claims. Accordingly, Defendant Wells Fargo‘s motion to dismiss, or in the alternative, for summary judgment is held in abeyance with respect to these claims.
The first three of the remaining claims against Wells Fargo all revolve around the same issue: whether, when, and how Wells Fargo took ownership of Plaintiff‘s mortgage. Plaintiff argues that to the extent Wells Fargo does not own his mortgage, Wells Fargo lacks standing to foreclose on his home. Similarly, Plaintiff premises his claim of fraud on Wells Fargo‘s allegedly illegitimate foreclosure. To the extent this foreclosure is within Wells Fargo‘s rights as owner of Plaintiff‘s mortgage, thеre would be no fraud, and this claim would be subject to dismissal. Finally, to the extent Wells Fargo is Plaintiff‘s creditor, it “is not a debt collector and it not subject to the FDCPA unless it acquire[d] [the] debt in default solely for the purpose of facilitating collection of such debt.” McDevitt v. Wells Fargo Bank, N.A., 946 F.Supp.2d 160, 168 (D.D.C.2013); see also Dubois v. Washington Mut. Bank, No. 09-cv-2176, 2010 WL 3463368, at *5 (D.D.C. Sept. 3, 2010) (finding creditor was not a “debt collector” where it acquired the mortgage when it was not in default). Accordingly, Plaintiff‘s FDCPA claim also depends on whether, when, and how Wells Fargo acquired Plaintiff‘s mortgage. If, as it claims, Wells Fargo acquired Plaintiff‘s mortgage as
Wells Fargo contends that there is no genuine issue of material fact as to its ownership of Plaintiff‘s mortgage, which it acquired in November 2009 through its merger with Wachovia Mortgage, FSB. In support of this position, Wells Fargo relies on the following facts. Plaintiff entered into a mortgage agreement with World Savings in August 2007. Compl., Ex. B. Subsequently, in December 2007, World Savings changed its name to Wachovia Mortgage, FSB. Wells Fargo MTD, Ex. B. In November 2009, this entity changed its name to Wells Fargo Bank Southwest and merged into Wells Fargo Bank, N.A. Id., Ex. D. Accordingly, Wells Fargo states that it is neither a stranger to Plaintiff‘s mortgage, nor did it purchase the mortgage on the secondary market. Rather, Wells Fargo asserts that it acquired Plaintiff‘s loan as the successor in interest to Plaintiff‘s original lender through merger agreements. Wells Fargo has also provided the Court with a loan modification agreement entered into between Wells Fargo and Plaintiff in March 2010. Id. Ex. E. The Court notes that this agreement is signed by Plaintiff and describes him as the “Borrower” and Wells Fargo Bank, N.A. as the “Lender.”
In response, Plaintiff purports to offer evidence that his loan was sold by World Savings Bank and was not acquired by Wells Fargo as the successor in interest to World Savings. In particular, Plaintiff relies on a “Property Securitization Analysis Report” prepared by a company called Mortgage Compliance Investigators. Pl.‘s Mot. to Portray, Ex. 2. This document contains a sworn affidavit from an individual named Damion Emholtz, who describes himself as a “licensed private investigator of the State of Texas.” Id., Ex. 2 at 13. Mr. Emholtz states that he has researched Plaintiff‘s loan and determined that “the NOTE was sold, transferred and securitized into WORLD SAVINGS BANK REMIC 30.” Id., Ex. 2 at 11. This document would appear to contradict Wells Fargo‘s claim that Plaintiff‘s loan was not securitized and instead passed to Wells Fargo through various merger agreements. However, the Court is unclear as to the reliability of this document or the relevance of securitization to Plaintiff‘s claims and Wells Fargo‘s ability to foreclose.
Because the Court had not yet addressed Plaintiff‘s [14] Motion to Portray and Assert the Certified Securitization Audit, with Memorandum of Law at the time Wells Fargo filed its briefs in support of its motion to dismiss, or in the alternative, for summary judgment, it was not clear to Defendant Wells Fargo that the Court would consider the “Property Securitization Analysis Report” аttached as an exhibit in assessing Plaintiff‘s claims. Having now granted this motion and made clear that this document will be considered in assessing Plaintiff‘s claims, the Court requests additional briefing from Wells Fargo. Wells Fargo should file a supplemental brief to its motion to dismiss, or in the alternative, for summary judgment addressing the reliability of this document as well as its relevance to whether, when, and how Wells Fargo acquired Plaintiff‘s mortgage and whether Wells Fargo has the ability to foreclose on this mortgage. Plaintiff shall also be given an opportunity to respond to any filing made by Wells Fargo as to this issue. A schedule for this briefing is set out in the Order accompanying this Memorandum Opinion.
The Court also requests additional briefing from the parties as to Plaintiff‘s claim of intentional infliction of emotional distress (“IIED“). Although Plaintiff as-serts
Defendant Wells Fargo does not address this claim in its motion to dismiss, or in the alternative, for summary judgment. Yet, at the same time, this motion requests that Plaintiff‘s case be dismissed in its entirety. Wells Fargo MTD at 1. Accordingly, given the length and vagueness of Plaintiff‘s Complaint, it appears that Defendant Wells Fargo may not have been aware that Plaintiff was raising IIED as a free-standing claim. Aсcordingly, the Court requests that Defendant Wells Fargo use the opportunity provided to submit a supplemental brief to also address Plaintiff‘s claim of IIED. If Defendant Wells Fargo seeks to dismiss this claim, it should include such a discussion in this brief. Plaintiff shall be permitted to file a response. A schedule for this briefing is set out in the Order accompanying this Memorandum Opinion.
E. Plaintiff‘s Remaining Motions
Plaintiff has filed several additional motions in this case which the Court now resolves. First, Plaintiff has filed a set of motions arguing that Defendants are in default because they failed to file a responsive pleading within 21 days of service. See Pl.‘s Mot. for Default J.; Pl.‘s Mot. to Quash ASAP MTD; Pl.‘s Mot. to Quash Wells Fargo MTD. In these motions, Plaintiff asserts that Defendants Wells Fargo, AFRCT, and ASAP are in default because they failed to timely respond to Plaintiff‘s service of the summons and complaint. See Pl.‘s Mot. for Default J. at 1-3; Pl.‘s Mot. to Quash ASAP MTD at 1-2; Pl.‘s Mot. to Quash Wells Fargo MTD at 1-3. Plaintiff states that he served these Defendants on May 6, 2013 and argues that because Wells Fargo, AFRCT, and ASAP did not file their Motion to Dismiss until June 4, 2013, these Defendants failed to comply with
The Court rejects these arguments for default because, as it noted in its July 31, 2013 [19] Order, Plaintiff‘s alleged service of these Defendants on May 6, 2013 was improper. As stated in this Order, based on the purported proofs of service filed by Plaintiff with the Court, Plaintiff had improperly attempted to serve these Defendants by mail, rather than by any of the procedures permitted under the Federal Rules of Civil Procedure or California‘s Code of Civil Procedure. See Order (July 31, 2013), ECF No. [19] at 2-3. In this Order, the Court instructed Plaintiff to properly serve these Defendants, id. at 3-4, which Plaintiff subsequently accomplished as to Defendants Wells Fargo and ASAP. See ECF No. [23] (Wells Fargo affidavit); ECF No. [34] (ASAP affidavit). As discussed, supra, Plaintiff failed to serve Defendant AFRCT properly. Accordingly, because they were not properly served on May 6, 2013, Defendants Wells Fargo, AFRCT, and ASAP are not in de-fault
Plaintiff has also filed a [39] Motion for Order of Default Judgment, Damages and Enforcement of the Consent Decree Terms and Conditions, Jointly and Severally Against the Defendants Wells Fargo Bank, N.A., Anglin, Flewelling, Rasmussen, Campbell & Trytten LLP. In this motion, Plaintiff appears to seek default judgment because Defendants Wells Fargo and AFRCT failed to file a sur-reply in response to Plaintiff‘s sur-reply in opposition to Defendants’ Motion to Strike. Pl.‘s Mot. for Order at 2-3. There is no basis for granting default judgment on the grounds that a party failed to file a sur-reply and accordingly, Plaintiff‘s motion is denied. See
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS IN PART and HOLDS IN ABEYANCE IN PART Defendants Wells Fargo Bank, N.A.‘s and Anglin, Flewelling, Rasmussen, Campbell & Trytten, LLP‘s [6] Motion to Dismiss Pursuant to
Janice A. EDWARDS, Plaintiff, v. OCWEN LOAN SERVICING, LLC and Ocwen Financial Corporation, Defendants.
Case No. 13-cv-709 (RJL)
United States District Court, District of Columbia.
Signed March 1, 2014
Filed March 5, 2014