McFadden v. Deutsche Bank Nat'l Trust Co.

DENNIS WARD MCFADDEN;MARCIA-ANN: WILLARDSON, Plaintiffs,

v. DEUTSCHE BANK NATIONALTRUST COMPANY,as Trustee, intrust for the registered holders ofARGENT SECURITIES Inc.,Assetbacked Pass through Certificates, Series 2003-W6, et al., Defendants.

No. 2:10-cv-03004 JAM KJN PS

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

DATED: August 15, 2011

ORDER and FINDINGS AND RECOMMENDATIONS

Presently before the court¹ are several motions filed by various named defendants in this case, which are addressed to plaintiffs' claims alleged in the Amended Complaint (Dkt. No. 5): (1) defendants David J. Boyer and Robert Jackson & Associates, Inc.'s motion to specially strike plaintiffs' claims pursuant to California's anti-SLAPP² statute, Cal. Civ. Proc.Code § 425.16, and to dismiss plaintiffs' claims pursuant to Federal Rule of Civil Procedure 12(b)(6) (Dkt. No. 13); (2) defendant Citi Residential Lending, Inc.'s motion to dismiss plaintiffs' claims pursuant to Rule 12(b)(6) (Dkt. No. 15); (3) defendants Fidelity National Title Company and Default Resolution Network Division's motion to dismiss plaintiffs' claims pursuant to Rule 12(b)(6) (Dkt. No. 16); and (4) defendants David J. Boyer, Robert Jackson & Associates, Inc.,³ Deutsche Bank National Trust Co., American Home Mortgage Servicing Co., and Power Default Services, Inc.'s motion to dismiss or for a more definite statement filed pursuant to Rule 12(b)(6) and Rule 12(e) (Dkt. No. 18).⁴

The court heard this matter on its law and motion calendar on February 24, 2011. (Minutes, Dkt. No. 27.) Attorney Shar Bahmani appeared via telephone on behalf of defendants David J. Boyer and Robert Jackson & Associates (collectively, the "Boyer Defendants"), as well as defendants David J. Boyer, Robert Jackson & Associates, Inc., Deutsche Bank National Trust Co., American Home Mortgage Servicing Co., and Power Default Services, Inc. (collectively, the "Deutsche Bank Defendants"). Attorney Imran Hayat appeared on behalf of defendant Citi Residential Lending, Inc. ("Citi"). Attorney Christine Starkie appeared on behalf of defendants Fidelity National Title Company and Default Resolution Network Division (collectively, the "Fidelity Defendants"). Plaintiffs, who are proceeding without counsel, appeared and represented themselves at the hearing.

The undersigned has considered the briefs, oral arguments, and appropriate portions of the record in this case and, for the reasons stated below, recommends that all of plaintiffs' claims alleged against the Boyer Defendants, Citi, the Fidelity Defendants, and theDeutsche Bank Defendants be dismissed with prejudice.⁵

I. BACKGROUND

Plaintiffs' Amended Complaint concerns the alleged unlawful foreclosure on, and trustee's sale of, real property located at 10268 Pequot Lane in Nevada City, California. (Am. Compl. ¶ 4.) Plaintiffs are not the borrowers who defaulted on the loan; Bryan Byrd Chagnon and Shelley Y. Chagnon, who are husband and wife, are the borrowers. On or around September 2, 2003, Bryan and Shelley Chagnon executed a promissory note in the amount of $256,000 in favor of defendant Olympus Mortgage Company ("Olympus"), and the note was secured by a deed of trust naming Olympus as lender, trustee, and beneficiary. (Boyer Defs.' Req. For Judicial Notice ("Boyer Defs.' RFJN"),⁶ Ex. A, Dkt. No. 14; see also Am. Compl. ¶¶ 18-20.) On December 23, 2008, Olympus executed an Assignment of Deed of Trust, through Citi, Olympus's "attorney-in-fact," in favor of defendant Deutsche Bank National Trust Company as trustee ("Deutsche Bank").⁷ (Boyer Defs.' RFJN, Ex. B.) The Chagnons defaulted on their loan, and on December 26, 2008, a Notice of Default and Election to Sell Under Deed of Trust was recorded. (Id., Ex. C.)

It appears that plaintiffs now occupy the property; plaintiffs allege that they "live on the Land." (Am. Compl. ¶¶ 3a-3b.) Plaintiffs allege that they are the "real party(s) in interest and now hold the beneficial interest in the property by assignment." (Id. ¶ 14.) They further allege that on June 5, 2010, plaintiff McFadden obtained a Quitclaim Deed pertaining to thesubject property, and judicially noticeable documents substantiate that McFadden and the Chagnons executed a purported Quitclaim Deed conveying the property. (Id. ¶ 16; Deutsche Bank Defs.' Req. for Judicial Notice ("Deutsche Bank Defs.' RFJN"), Ex. 5, Dkt. No. 18, Doc. No. 18-1.) Plaintiffs further allege, and judicially noticeable documents support, that on June 11, 2010, a Grant Deed purporting to grant plaintiff Willardson fee simple title to the property was recorded—the Grant Deed purports to convey the property to "Spiritual Alliances, Corporation Sole, Marcia Ann Willardson, Public Minister." (Am. Compl. ¶ 17; Deutsche Bank Defs.' RFJN, Ex. 6.) At the hearing, plaintiffs represented that through their private transactions with the Chagnons, McFadden was somehow assigned an interest only in the "chattel paper," i.e., the promissory note and the Deed of Trust, and Willardson was somehow assigned an interest only in the physical property itself, free and clear of the Chagnon's existing obligations on the promissory note and Deed of Trust. McFadden stated at the hearing that the Chagnons received approximately $3,500 as consideration for the purported assignment.

On June 18, 2010, after plaintiffs and the Chagnons conducted their transaction, a Substitution of Trustee was recorded. (Am. Compl. ¶ 29; Boyer Defs.' RFJN, Ex. D.) The Substitution of Trustee substituted defendant Power Default Services, Inc. as trustee under the Deed of Trust, care of Fidelity National Title Company.⁸ (Id.) The Substitution of Trustee reflects that at that point, American Home Mortgaging Servicing, Inc. was the servicer of the Chagnon's loan. (Id.)

Also on June 18, 2010, a Notice of Trustee's Sale was recorded that noticed a sale date of July 8, 2010. (Boyer Defs.' RFJN, Ex. E.) On September 17, 2010, a Trustee's Deed Upon Sale in favor of Deutsche Bank was recorded, reflecting that the sale of the property occurred on September 13, 2010. (Id., Ex. F.)

On or around September 30, 2010, McFadden found pinned to the wall of a structure on the property a three-day notice to vacate the property. (Am. Compl. ¶ 40.) The notice was signed by defendant David J. Boyer, an attorney with the law firm defendant Robert J. Jackson and Associates. (Id.; see also Boyer Defs.' RFJN, Ex. G, Exhibit B to Compl. for Unlawful Detainer.)

On October 14, 2010, Deutsche Bank instituted, through attorneys at the firm of Robert J. Jackson and Associates, an unlawful detainer action in the Nevada County Superior Court, naming Bryan and Shelley Chagnon as defendants. (Boyer Defs.' RFJN, Ex. G.) Nothing in the record suggests that a judgment has yet been entered in the unlawful detainer action, and counsel for the Boyer Defendants represented at the hearing that he was unaware of any such judgment.

On November 8, 2010, plaintiffs filed their complaint and, on November 10, 2010, filed the Amended Complaint. Plaintiffs' Amended Complaint alleges thirteen claims for relief against eleven named defendants and over 1,000 "Doe" defendants. Plaintiffs indiscriminately allege all of the following "counts," not all of which are actually stand-alone claims for relief, against all of the named defendants: (1) violation of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692f; (2) violation of the FDCPA, 15 U.S.C. § 1692e(2)(A); (3) violation of the FDCPA, 15 U.S.C. § 1692e(5); (4) negligence; (5) slander of title; (6) "respondeat superior liability"; (7) "negligent or wanton hiring, supervision, training or retention"; (8) "joint venture liability"; (9) wrongful foreclosure; (10) unjust enrichment; (11) civil conspiracy; (12) fraudulent misrepresentation; and (13) declaratory relief. Plaintiffs' Amended Complaint is generally and vaguely pled in that plaintiffs failed to differentiate among the various named defendants in terms of each named defendant's alleged conduct that gave rise to each specific claim.

II. EVIDENTIARY OBJECTION

With their written opposition, plaintiffs filed an attachment that consists of a"Foreclosure Investigation Report" regarding the subject property, which was prepared by Charles J. Horner and dated November 7, 2010 (the "Horner Report"). (See Attachment to Pls.' Opp'n.) Plaintiffs' opposition to the pending motions is largely premised on this report. The reply brief filed by the Fidelity Defendants includes an evidentiary objection to the Horner Report. (Reply Br. & Evid. Objection at 5-7, Dkt. No. 22.)

The undersigned sustains the Fidelity Defendants' evidentiary objection and has not considered the Horner Report in reaching the recommendations set forth below. The Horner Report is not the proper subject of judicial notice, was not attached to the Amended Complaint, and is not subject to consideration under the incorporation by reference doctrine.⁹ Accordingly, it is not the proper subject of consideration in the context of motions to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6). Furthermore, the undersigned declines to convert the pending motions into motions for summary judgment.

III. REQUESTS FOR JUDICIAL NOTICE

In support of their respective motions, the Boyer Defendants and the Deutsche Bank Defendants each filed requests for judicial notice.¹⁰ The Boyer Defendants request that the court take judicial notice of documents labeled Exhibits A through G (Dkt. No. 14). Specifically, the Boyer Defendants seek judicial notice of: (a) a Deed of Trust dated September 2, 2003, which was recorded with the Nevada County Recorder's Office¹¹ on September 10, 2003, as documentnumber DOC-2003-0048457; (b) an Assignment of Deed of Trust dated December 23, 2008, which was recorded on December 30, 2008, as document number DOC-2008-0030931-00; (c) a Notice of Default and Election to Sell Under Deed of Trust dated December 23, 2008, which was recorded on December...