Harriet Williams v. Novad Management Consulting, Llc et al

NOTICE OF MOTION AND MOTION to Dismiss Case

C.D. Cal.December 9, 2016

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EILEEN M. DECKER United States Attorney DOROTHY A. SCHOUTEN Assistant United States Attorney Chief, Civil Division ROBYN-MARIE LYON MONTELEONE Assistant United States Attorney Chief, General Civil Section SEKRET T. SNEED (State Bar No. 217193) Assistant United States Attorney Federal Building, Suite 7516 300 North Los Angeles Street Los Angeles, California 90012 Telephone: (213) 894-3551 Facsimile: (213) 894-7819 E-mail: sekret.sneed@usdoj.gov Attorneys for Defendant SECRETARY OF THE U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA HARRIET WILLIAMS TRUSTEE OF THE FAMILY TRUST DATED 04/14/2006, Plaintiff, vs NOVAD MANAGEMENT CONSULTING, LLC; THE SECRETARY OF HOUSING AND URBAN DEVELOPMENT, CIMARRON SERVICE CORP OF NEVADA; WELLS FARGO BANK, N.A. and DOES 1 through 5, inclusive, Defendants. No. CV16-08200 FMO (JCx) DEFENDANT SECRETARY OF THE U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT’S NOTICE OF MOTION AND MOTION TO DISMISS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF [Filed Concurrently with Declaration of HUD Regional Counsel Miniard Culpepper and Request for Judicial Notice] Date: January 26, 2017 Time: 10:00 a.m. Ctrm: First Street Federal Courthouse 350 W. 1st Street Courtroom 6D, 6th Floor Los Angeles, California 90012 Honorable Fernando M. Olguin Case 2:16-cv-08200-FMO-JC Document 9 Filed 12/09/16 Page 1 of 13 Page ID #:80 - 1 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO ALL PARTIES AND TO THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that on January 26, 2017, at 10:00 a.m., or as soon thereafter as the matter may be heard, in Courtroom 6D of the above-entitled court located at the First Street Federal Courthouse, 350 W. 1st Street, 6th Floor, Los Angeles, California 90012, the Honorable Fernando M. Olguin presiding, defendant Secretary of the U.S. Department of Housing and Urban Development (“Secretary”) will, and hereby does, move this Court for an Order dismissing this action against him with prejudice. This Motion is brought pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure1 on the following grounds: First Claim - Quiet Title The Court should dismiss the First Claim for quiet title against the Secretary pursuant to Rule 12(b)(6) because plaintiff Harriet Williams (“Plaintiff”) fails to allege facts sufficient to show that Plaintiff has an interest in the real property at issue superior to the Secretary’s interest. Third Claim - Wrongful Foreclosure The Court should dismiss the Third Claim for wrongful foreclosure against the Secretary pursuant to Rule 12(b)(6) because Plaintiff fails to allege facts sufficient to show that any alleged acts by the Secretary did not comply with the Single Family Mortgage Foreclosure Act, 12 U.S.C. §§ 3751-3768, which is the exclusive statutory scheme that governs the disposal of property secured by mortgage interests owned by the Secretary under the Home Equity Conversion Mortgages for Seniors (“HECM”) Program. 1 Unless otherwise noted, all statutory references shall be to the Federal Rules of Civil Procedure. Case 2:16-cv-08200-FMO-JC Document 9 Filed 12/09/16 Page 2 of 13 Page ID #:81 - 2 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Fourth Claim - Negligence (1) Pursuant to Rule 12(b)(1), this Court lacks subject matter jurisdiction over the Fourth Claim for negligence against the Secretary because a plaintiff may only bring a claim based upon the alleged negligent or wrongful conduct of a Federal Government actor against the United States of America. 28 U.S.C. §§ 1346 & 2671, et seq. (2) Even if Plaintiff had properly named the United States as a defendant in this action, this Court still lacks subject matter jurisdiction over the Fourth Claim for negligence because Plaintiff failed to present her claim to the U.S. Department of Housing and Urban Development (“HUD”) prior to filing this action, as required by the Federal Tort Claims Act, 28 U.S.C. §§ 1346 & 2671, et seq. Fifth Claim - Fraud (1) Pursuant to Rule 12(b)(1), this Court lacks subject matter jurisdiction over the Fifth Claim for fraud against the Secretary because a plaintiff may only bring a claim based upon the alleged negligent or wrongful conduct of a Federal Government actor against the United States of America. (2) Even if Plaintiff had properly named the United States as a defendant in this action, this Court lacks subject matter jurisdiction over the Fifth Claim for fraud because Plaintiff failed to present her claim to HUD prior to filing this action, as required by the FTCA. Sixth Claim - “To Set Aside Trustee Sale” The Court should dismiss the Sixth Claim “to set aside trustee sale” against the Secretary pursuant to Rule 12(b)(6) because, as alleged, this is not a cognizable claim, or is merely a duplicate of Plaintiff’s First Claim for quiet title and/or Third Claim for wrongful foreclosure. Case 2:16-cv-08200-FMO-JC Document 9 Filed 12/09/16 Page 3 of 13 Page ID #:82 - 3 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Seventh Claim - “To Avoid or Cancel Trustee’s Deed” The Court should dismiss the Seventh Claim “to avoid or cancel trustee’s deed” against the Secretary pursuant to Rule 12(b)(6) because, as alleged, this is not a cognizable claim, or is merely a duplicate of Plaintiff’s First Claim for quiet title and Third Claim for wrongful foreclosure. This Motion is based on this Notice of Motion and Motion, the attached Memorandum of Points and Authorities, the concurrently filed Declaration of Miniard Culpepper, the Request for Judicial Notice, the pleadings, records and files in this action, and such other evidence and argument as may be presented at the time of hearing. This motion is made following the conference of counsel pursuant to Local Rule 7-3 which took place on December 2, 2016. Dated: December 9, 2016 Respectfully submitted, EILEEN M. DECKER United States Attorney DOROTHY A. SCHOUTEN Assistant United States Attorney Chief, Civil Division ROBYN-MARIE LYON MONTELEONE Assistant United States Attorney Chief, General Civil Section /s/ SEKRET T. SNEED Assistant United States Attorney Attorneys for Defendant SECRETARY OF THE U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT Case 2:16-cv-08200-FMO-JC Document 9 Filed 12/09/16 Page 4 of 13 Page ID #:83 - 1 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION AND RELEVANT FACTUAL BACKGROUND1 The First Amended Complaint (“FAC”) alleges that on March 27, 2006, John R. Thomas and Lucille B. Thomas obtained a reverse mortgage on a piece of real property commonly known as 9801 S. 11th Avenue, Inglewood, California 90305 (hereinafter, “11th Avenue Property”). (FAC, ¶ 2.) The Adjustable Rate Home Equity Conversion Deed of Trust, executed by John Thomas and Lucille Thomas on March 27, 2006, reflects that the reverse mortgage was secured by a Deed of Trust in favor of the lender, Wells Fargo Bank, N.A., (Request for Judicial Notice, Ex. A), and was secured by a Second Deed of Trust in favor of the Secretary, (Request for Judicial Notice, Ex. B), under the Home Equity Conversion Mortgages for Seniors (“HECM”) Program. The HECM Program is a national loan insurance program under the National Housing Act, 12 U.S.C. § 1715z-20, that allows eligible senior homeowners to obtain mortgage loans based on the equity in their homes.2 HUD insulates lenders who provide mortgage loans to senior homeowners, by allowing lenders to assign the mortgage to HUD if the mortgage balance is equal to or greater than 98% of the maximum claim amount, or the mortgagor has requested a payment which exceeds the difference between the maximum claim amount and the mortgage balance. See 24 C.F.R. § 206.107(a)(1). The mortgage only becomes due and payable when the 1 For purposes of this Motion only, the Secretary treats all factual allegations as true, except those allegations “that contradict matters properly subject to judicial notice or by exhibit .. . .[or] that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001) (citations and quotations omitted). The Secretary has filed concurrently herewith a Request for Judicial Notice. 2 The main objective of the HECM Program is to allow senior homeowners to convert portions of their accumulated home equity into a liquid asset in order to reduce the economic hardship of increased costs of health and housing while on a reduced income. 12 U.S.C. § 1715z-20(b)(1); 24 C.F.R. § 206.33. This Program is conducted on a vast scale; as of 2011, the HECM Program insured more than 580,000 properties nationwide. See Report to Congress on Reverse Mortgages, June 2012, at p. 13. Case 2:16-cv-08200-FMO-JC Document 9 Filed 12/09/16 Page 5 of 13 Page ID #:84 - 2 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 mortgagor, i.e., the senior homeowner, dies and the property is not the principal residence of at least one surviving mortgagor. 24 C.F.R. § 206.27(c)(1). Approximately one year after John Thomas and Lucille Thomas obtained the reverse mortgage, on April 14, 2006, they created the “Thomas Family Trust.” The 11th Avenue Property was held in the Thomas Family Trust. (FAC, ¶¶ 1-2.) Lucille Thomas died on January 1, 2007, and John Thomas died in October 2011. (Id., ¶¶ 3-4.) Thus, upon John Thomas’ death, the full balance of the mortgage became due and payable. See 24 C.F.R. § 206.27(c)(1). On December 5, 2011, Wells Fargo assigned its security interest in the Deed of Trust under the HECM Program to the Secretary. (Request for Judicial Notice, Ex. C.) At that point, therefore, the Secretary held the first and the second security interest in the 11th Avenue Property. The Foreclosure Deed, recorded on April 2, 2015, reflects that the Secretary purchased the 11th Avenue Property at a foreclosure sale on March 12, 2015. (Request for Judicial Notice, Ex. D.) Plaintiff Harriet Williams (“Plaintiff”) alleges that she is a trustee of the Thomas Family Trust and brings this action against the Secretary, Cimarron Service Corporation of Nevada, which is the Secretary’s Foreclosure Commissioner, and NOVAD Management Consulting, LLC, which is the Secretary’s mortgage loan servicer.3 As to the Secretary, Plaintiff asserts claims for quiet title, wrongful foreclosure, negligence and fraud, “to set aside trustee sale” and “to avoid or cancel trustee’s deed.”4 The Court should dismiss this action against the Secretary because Plaintiff fails to plead a valid claim. First, the Court should dismiss the First Claim for quiet title 3 Plaintiff also sued Wells Fargo Bank, N.A., but dismissed Wells Fargo before the Secretary removed this action. See Los Angeles County Superior Court Case No. BC611438. 4 Plaintiff’s Second Claim for breach of oral contract is alleged against NOVAD only. Case 2:16-cv-08200-FMO-JC Document 9 Filed 12/09/16 Page 6 of 13 Page ID #:85 - 3 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 because Plaintiff has not set forth allegations that show she has an interest that is superior to the Secretary’s interest. Second, the Court should dismiss the Third Claim for wrongful foreclosure because Plaintiff has not set forth any factual allegations that demonstrate that the Secretary wrongfully foreclosed. Plaintiff points to alleged violations of California’s state law foreclosure procedures, but the Secretary is not subject to State foreclosure laws. The Single Family Mortgage Foreclosure Act, 12 U.S.C. §§ 3751-3768 (“Foreclosure Act”), is the exclusive statutory scheme governing the Secretary’s disposal of real property under the HECM Program. Plaintiff has not set forth any allegations that show the Secretary violated any terms of the Foreclosure Act. The Court also should dismiss Plaintiff’s Fourth and Fifth claims for negligence and fraud because the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) & 2671, et seq. (“FTCA”), is the exclusive remedy for an individual to recover money damages against the United States for tort liability. While Plaintiff did not expressly reference the FTCA in the complaint, this action - which is premised upon an alleged tort committed by an agency of the United States - only can be brought pursuant to the FTCA. Plaintiff, however, has not set forth allegations that show Plaintiff complied with FTCA prerequisites prior to filing this suit. Lastly, Plaintiff’s purported claims “to set aside trustee sale” and “to avoid or cancel trustee’s deed” do not state an independent claim. Accordingly, the Court should dismiss these claims with prejudice. See, e.g., Lazo v. Summit Mgmt. Co. LLC, No. 1:13-cv-02015-AWI-JLT, 2014 U.S. Dist. LEXIS 95637 at *69-70 (E.D. Cal. July 9, 2014) (dismissing claims to set aside trustee’s sale and to cancel trustee’s deed because they “are remedies, not independent claims”). Accordingly, this Court should dismiss this action against the Secretary with prejudice. Case 2:16-cv-08200-FMO-JC Document 9 Filed 12/09/16 Page 7 of 13 Page ID #:86 - 4 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. ARGUMENT A. Standard for Motion to Dismiss under Rules 12(b)(1) and 12(b)(6) Federal Rule of Civil Procedure 12(b)(1) provides a procedural mechanism for a defendant to challenge subject matter jurisdiction. A Rule 12(b)(1) motion may be asserted as a facial or factual challenge. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). A facial attack challenges the complaint on its face. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). Upon a factual challenge, on the other hand, a court may look beyond the complaint and consider extrinsic evidence. See id. In addition, “[t]he court need not presume the truthfulness of the plaintiff's allegations.” Id. Once the defendant has presented a factual challenge under Rule 12(b)(1), the burden of proof shifts to the plaintiff to “furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction.” Id. Here, the Secretary presents both a challenge to the face of the complaint based upon Plaintiff improperly naming the Secretary as a defendant to claims based on tort, and the Secretary presents a factual challenge based upon Plaintiff’s failure to present a written claim to the appropriate agency prior to filing this action, which deprives this Court of jurisdiction pursuant to the FTCA. A court also may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. Proc. 12(b)(6). A Rule 12(b)(6) dismissal is proper where the complaint offers nothing more than “labels and conclusions or a formulaic recitation of the elements of a cause of action . . ..” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In order “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 Case 2:16-cv-08200-FMO-JC Document 9 Filed 12/09/16 Page 8 of 13 Page ID #:87 - 5 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 U.S. at 678. Here, Plaintiff has not alleged facts sufficient to state a claim against the Secretary. B. Plaintiff Has Not Alleged Facts Sufficient to State a Claim for Quiet Title Against the Secretary. Plaintiff claims that the Secretary does not have a right to the property; however, the Secretary has the only proper claim to the 11th Avenue Property. Specifically, through the assignment of the First Deed of Trust, and his own interest in the Second Deed of Trust, the Secretary held the first and the second security interest in the 11th Avenue Property as of 2011. (Request for Judicial Notice, Exs. A-C.) Moreover, once the last remaining mortgagor died in October 2011, (FAC, ¶¶ 3-4), the mortgage became due and payable. 24 C.F.R. § 206.27(c)(1). Plaintiff, however, has not set forth any allegations in the FAC that she paid off the balance on the mortgage, or otherwise ever acquired rightful title to the 11th Avenue Property. Instead, the Secretary foreclosed upon its security interests and purchased the 11th Avenue Property at the March 12, 2015 foreclosure sale, thus becoming its sole owner. (Request for Judicial Notice, Ex. D.) Plaintiff has not set forth any allegations that show she has any right to the 11th Avenue Property that supersedes the Secretary’s lawful right. Accordingly, the Court should dismiss this claim with prejudice. C. Plaintiff Has Not Alleged Facts Sufficient to State a Claim for Wrongful Foreclosure Against the Secretary. Plaintiff contends that the Secretary did not comply with requirements under the California Civil Code during the foreclosure process. As discussed above, however, because the 11th Avenue Property falls under the HECM program, the Secretary is not subject to State foreclosure law. The Single Family Mortgage Foreclosure Act, 12 U.S.C. §§ 3751-3768 (“Foreclosure Act”), empowers the Secretary to nonjudicially foreclose on and sell Case 2:16-cv-08200-FMO-JC Document 9 Filed 12/09/16 Page 9 of 13 Page ID #:88 - 6 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 properties held pursuant to the National Housing Act. Congress enacted this statute “to create a uniform Foreclosure remedy for single family mortgages” held by the Secretary in order to, among other things, avoid disparate State laws, reduce the Secretary’s burden to administer certain programs, decrease the costs of collecting obligations, prevent substantial Federal holding expenditures, and limit the deterioration of properties and the resulting adverse effect on neighborhoods which might occur under the long periods of time certain States required to complete foreclosure. 12 U.S.C. §§ 3751(a)-(b). The Foreclosure Act, therefore, is the exclusive statutory scheme governing the disposal of property secured by mortgage interests owned by the Secretary under HECM. Here, Plaintiff has not pled any facts that show the Secretary did not comply with the procedures outlined in the Foreclosure Act for foreclosing on the 11th Avenue Property. Accordingly, the Court should dismiss this claim against the Secretary with prejudice. D. This Court Lacks Subject Matter Jurisdiction Over Plaintiff’s Claims for Negligence and Fraud. Although Plaintiff has not specifically alleged that she brings this suit under the FTCA, the FTCA is the exclusive remedy for claims “against the United States, for money damages . . . for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b). Accordingly, since the FTCA is the exclusive remedy for a plaintiff to bring a tort claim against the Federal Government, the Secretary construes Plaintiff’s claims for negligence and fraud as being brought under the FTCA. Plaintiff, however, has not alleged facts sufficient to state a claim under the FTCA. Case 2:16-cv-08200-FMO-JC Document 9 Filed 12/09/16 Page 10 of 13 Page ID #:89 - 7 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. The United States Is the Only Proper Defendant in an FTCA Action. The United States, as sovereign, is immune from suit, except where it consents to be sued. See, e.g., Dunn & Black, P.S. v. United States, 492 F.3d 1084, 1087-1088 (9th Cir. 2007) (“It is well settled that the United States is a sovereign, and, as such, is immune from suit unless it has expressly waived such immunity and consented to be sued”) (citations and quotations omitted). This “sovereign immunity shields the Federal Government and its agencies from suit.” FDIC v. Meyer, 510 U.S. 471, 475 (1994). The United States has waived sovereign immunity under the FTCA; however, that waiver only extends to allow claims against the United States, not against its agencies or employees. See FDIC v. Craft, 157 F.3d 697, 706 (9th Cir. 1998) (“The FTCA is the exclusive remedy for tortious conduct by the United States, and it only allows claims against the United States”). Thus, agencies and employees acting on behalf of a federal agency in their official capacities, cannot be sued under the FTCA. See Craft, 157 F.3d at 706; Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985) (“It has long been the rule that the bar of sovereign immunity cannot be avoided by naming officers and employees of the United States as defendants”). Because the United States has not waived its sovereign immunity so as to permit suit against its federal employees in their official capacities under the FTCA, and Plaintiff named the Secretary as a defendant herein as to negligence and fraud claims, the Court lacks subject matter jurisdiction over such claims. See Fed. R. Civ. Proc. 12(b)(1). 2. Plaintiff Did Not Present a Claim to HUD Prior to Filing This Action, as Required by the FTCA. The Court also should dismiss Plaintiff’s claims for negligence and fraud on the grounds that Plaintiff did not present a claim to HUD prior to filing this action, as required by the FTCA. As discussed above, the United States only may be sued to the Case 2:16-cv-08200-FMO-JC Document 9 Filed 12/09/16 Page 11 of 13 Page ID #:90 - 8 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 extent that it has waived its sovereign immunity to be sued. See United States v. Orleans, 425 U.S. 807, 814 (1976). As a condition of that waiver of sovereign immunity, the FTCA requires that an individual seeking to recover damages from the United States present written notice of his or her claims to the appropriate government agency, also known as an administrative tort claim, and exhaust such claims with the agency. See 28 U.S.C. § 2675(a) (“An action shall not be instituted upon a claim against the United States for money damages ... unless the claimant shall first have presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing....”). As a result, “a district court cannot exercise subject matter jurisdiction over an action brought pursuant to the FTCA unless the plaintiff shall have first presented the claim to the appropriate Federal agency.” Blair v. IRS, 304 F.3d 861, 863-864 (9th Cir. 2002) (citations and quotations omitted). The purpose of this administrative tort claim procedure is “to encourage administrative settlement of claims against the United States and thereby to prevent an unnecessary burdening of the courts.” Cadwalder v. United States, 45 F.3d 297, 302 (9th Cir. 1995). Thus, an action filed before a claimant exhausts administrative remedies is premature and must be dismissed based upon the court’s lack of subject matter jurisdiction. See, e.g., McNeil v. United States, 508 U.S. 106 (1993). Here, Plaintiff did not present an administrative tort claim to HUD prior to filing this suit. (Declaration of HUD Regional Counsel Miniard Culpepper, ¶ 3.) Accordingly, because Plaintiff did not present a written claim to HUD prior to filing suit, as required by the FTCA, this Court lacks subject matter jurisdiction over the Fourth and Fifth Claims against the Secretary. The Court, therefore, should dismiss these claims with prejudice. // // Case 2:16-cv-08200-FMO-JC Document 9 Filed 12/09/16 Page 12 of 13 Page ID #:91 - 9 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 E. The Court Should Dismiss Plaintiff’s Sixth and Seventh Claims Because These Are Not Independent Claims. Plaintiff purports to assert claims “to set aside trustee sale” and “to avoid or cancel trustee’s deed” against the Secretary. (FAC, ¶¶ 44-51.) Such allegations, however, characterize requested “remedies, not independent claims.” See, e.g., Lazo v. Summit Mgmt. Co. LLC, No. 1:13-cv-02015-AWI-JLT, 2014 U.S. Dist. LEXIS 95637 at *69-70 (E.D. Cal. July 9, 2014). Accordingly, this Court should dismiss the Sixth and Seventh Claims against the Secretary with prejudice. III. CONCLUSION For the foregoing reasons, the Secretary respectfully requests that this Court dismiss this action with prejudice against the Secretary. Dated: December 9, 2016 Respectfully submitted, EILEEN M. DECKER United States Attorney DOROTHY A. SCHOUTEN Assistant United States Attorney Chief, Civil Division ROBYN-MARIE LYON MONTELEONE Assistant United States Attorney Chief, General Civil Section /s/ SEKRET T. SNEED Assistant United States Attorney Attorneys for Defendant SECRETARY OF THE U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT Case 2:16-cv-08200-FMO-JC Document 9 Filed 12/09/16 Page 13 of 13 Page ID #:92 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EILEEN M. DECKER United States Attorney DOROTHY A. SCHOUTEN Assistant United States Attorney Chief, Civil Division ROBYN-MARIE LYON MONTELEONE Assistant United States Attorney Chief, General Civil Section SEKRET T. SNEED (State Bar No. 217193) Assistant United States Attorney Federal Building, Suite 7516 300 North Los Angeles Street Los Angeles, California 90012 Telephone: (213) 894-3551 Facsimile: (213) 894-7819 E-mail: sekret.sneed@usdoj.gov Attorneys for Defendant SECRETARY OF THE U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA HARRIET WILLIAMS TRUSTEE OF THE FAMILY TRUST DATED 04/14/2006, Plaintiff, vs NOVAD MANAGEMENT CONSULTING, LLC; THE SECRETARY OF HOUSING AND URBAN DEVELOPMENT, CIMARRON SERVICE CORP OF NEVADA; WELLS FARGO BANK, N.A. and DOES 1 through 5, inclusive, Defendants. No. CV16-08200 FMO (JCx) DECLARATION OF U.S. DEPARTMENT OF HOUSING AND UBRAN DEVELOPMENT REGIONAL COUNSEL MINIARD CULPEPPER IN SUPPORT OF DEFENDANT SECRETARY OF THE U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT’S MOTION TO DISMISS Date: January 26, 2017 Time: 10:00 a.m. Ctrm: First Street Federal Courthouse 350 W. 1st Street Courtroom 6D, 6th Floor Los Angeles, California 90012 Honorable Fernando M. Olguin Case 2:16-cv-08200-FMO-JC Document 9-1 Filed 12/09/16 Page 1 of 2 Page ID #:93 Case 2:16-cv-08200-FMO-JC Document 9-1 Filed 12/09/16 Page 2 of 2 Page ID #:94 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EILEEN M. DECKER United States Attorney DOROTHY A. SCHOUTEN Assistant United States Attorney Chief, Civil Division ROBYN-MARIE LYON MONTELEONE Assistant United States Attorney Chief, General Civil Section SEKRET T. SNEED (State Bar No. 217193) Assistant United States Attorney Federal Building, Suite 7516 300 North Los Angeles Street Los Angeles, California 90012 Telephone: (213) 894-3551 Facsimile: (213) 894-7819 E-mail: sekret.sneed@usdoj.gov Attorneys for Defendant SECRETARY OF THE U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA HARRIET WILLIAMS TRUSTEE OF THE FAMILY TRUST DATED 04/14/2006, Plaintiff, vs NOVAD MANAGEMENT CONSULTING, LLC; THE SECRETARY OF HOUSING AND URBAN DEVELOPMENT, CIMARRON SERVICE CORP OF NEVADA; WELLS FARGO BANK, N.A. and DOES 1 through 5, inclusive, Defendants. No. CV16-08200 FMO (JCx) REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANT SECRETARY OF THE U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT’S MOTION TO DISMISS Date: January 26, 2017 Time: 10:00 a.m. Ctrm: First Street Federal Courthouse 350 W. 1st Street Courtroom 6D, 6th Floor Los Angeles, California 90012 Honorable Fernando M. Olguin Case 2:16-cv-08200-FMO-JC Document 9-2 Filed 12/09/16 Page 1 of 37 Page ID #:95 -1- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO THE COURT AND TO ALL PARTIES AND TO THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that, pursuant to Rule 201 of the Federal Rules of Evidence, defendant Secretary of the U.S. Department of Housing and Urban Development (“Secretary”) hereby requests that this Court take judicial notice of the following facts: 1.) On March 27, 2006, John Thomas and Lucille Thomas executed an Adjustable Rate Home Equity Conversion Deed of Trust in favor of Wells Fargo Bank, N.A. under the Home Equity Conversion Mortgages for Seniors (“HECM”) Program, which is attached hereto as Exhibit A; 2.) On March 27, 2006, John Thomas and Lucille Thomas executed an Adjustable Rate Home Equity Conversion Second Deed of Trust in favor of the Secretary under the HECM Program, which is attached hereto as Exhibit B; 3.) On December 5, 2011, Wells Fargo assigned its security interest in the Adjustable Rate Home Equity Conversion Deed of Trust under the HECM Program to the Secretary in an Assignment of Deed of Trust and Other Loan Documents, attached hereto as Exhibit C; and, 4.) On March 12, 2015, the Secretary purchased the 11th Avenue Property at a foreclosure sale on March 12, 2015, which is reflected in the Foreclosure Deed, attached hereto as Exhibit D. // // // Case 2:16-cv-08200-FMO-JC Document 9-2 Filed 12/09/16 Page 2 of 37 Page ID #:96 -2- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Court may take judicial notice of these facts because these are official records that were recorded/filed in the Recorder’s Office of Los Angeles County, which is a source whose accuracy cannot reasonably be questioned. See Fed. R. Evid. 201(b)(2). See also Grant v. Aurora Loan Services, Inc., 736 F. Supp. 2d 1257, 1263- 1264 (C.D. Cal. 2010) (finding judicial notice appropriate for deeds of trust and other documents filed with the County Recorder because such recorded documents are “records and reports of administrative bodies”). Dated: December 9, 2016 Respectfully submitted, EILEEN M. DECKER United States Attorney DOROTHY A. SCHOUTEN Assistant United States Attorney Chief, Civil Division ROBYN-MARIE LYON MONTELEONE Assistant United States Attorney Chief, General Civil Section /s/ SEKRET T. SNEED Assistant United States Attorney Attorneys for Defendant SECRETARY OF THE U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT Case 2:16-cv-08200-FMO-JC Document 9-2 Filed 12/09/16 Page 3 of 37 Page ID #:97 ATTACHMENT A Case 2:16-cv-08200-FMO-JC Document 9-2 Filed 12/09/16 Page 4 of 37 Page ID #:98 Case 2:16-cv-08200-FMO-JC Document 9-2 Filed 12/09/16 Page 5 of 37 Page ID #:99 Case 2:16-cv-08200-FMO-JC Document 9-2 Filed 12/09/16 Page 6 of 37 Page ID #:100 Case 2:16-cv-08200-FMO-JC Document 9-2 Filed 12/09/16 Page 7 of 37 Page ID #:101 Case 2:16-cv-08200-FMO-JC Document 9-2 Filed 12/09/16 Page 8 of 37 Page ID #:102 Case 2:16-cv-08200-FMO-JC Document 9-2 Filed 12/09/16 Page 9 of 37 Page ID #:103 Case 2:16-cv-08200-FMO-JC Document 9-2 Filed 12/09/16 Page 10 of 37 Page ID #:104 Case 2:16-cv-08200-FMO-JC Document 9-2 Filed 12/09/16 Page 11 of 37 Page ID #:105 Case 2:16-cv-08200-FMO-JC Document 9-2 Filed 12/09/16 Page 12 of 37 Page ID #:106 Case 2:16-cv-08200-FMO-JC Document 9-2 Filed 12/09/16 Page 13 of 37 Page ID #:107 Case 2:16-cv-08200-FMO-JC Document 9-2 Filed 12/09/16 Page 14 of 37 Page ID #:108 Case 2:16-cv-08200-FMO-JC Document 9-2 Filed 12/09/16 Page 15 of 37 Page ID #:109 EXHIBIT B Case 2:16-cv-08200-FMO-JC Document 9-2 Filed 12/09/16 Page 16 of 37 Page ID #:110 Case 2:16-cv-08200-FMO-JC Document 9-2 Filed 12/09/16 Page 17 of 37 Page ID #:111 Case 2:16-cv-08200-FMO-JC Document 9-2 Filed 12/09/16 Page 18 of 37 Page ID #:112 Case 2:16-cv-08200-FMO-JC Document 9-2 Filed 12/09/16 Page 19 of 37 Page ID #:113 Case 2:16-cv-08200-FMO-JC Document 9-2 Filed 12/09/16 Page 20 of 37 Page ID #:114 Case 2:16-cv-08200-FMO-JC Document 9-2 Filed 12/09/16 Page 21 of 37 Page ID #:115 Case 2:16-cv-08200-FMO-JC Document 9-2 Filed 12/09/16 Page 22 of 37 Page ID #:116 Case 2:16-cv-08200-FMO-JC Document 9-2 Filed 12/09/16 Page 23 of 37 Page ID #:117 Case 2:16-cv-08200-FMO-JC Document 9-2 Filed 12/09/16 Page 24 of 37 Page ID #:118 Case 2:16-cv-08200-FMO-JC Document 9-2 Filed 12/09/16 Page 25 of 37 Page ID #:119 Case 2:16-cv-08200-FMO-JC Document 9-2 Filed 12/09/16 Page 26 of 37 Page ID #:120 Case 2:16-cv-08200-FMO-JC Document 9-2 Filed 12/09/16 Page 27 of 37 Page ID #:121 Case 2:16-cv-08200-FMO-JC Document 9-2 Filed 12/09/16 Page 28 of 37 Page ID #:122 Case 2:16-cv-08200-FMO-JC Document 9-2 Filed 12/09/16 Page 29 of 37 Page ID #:123 Case 2:16-cv-08200-FMO-JC Document 9-2 Filed 12/09/16 Page 30 of 37 Page ID #:124 EXHIBIT C Case 2:16-cv-08200-FMO-JC Document 9-2 Filed 12/09/16 Page 31 of 37 Page ID #:125 Case 2:16-cv-08200-FMO-JC Document 9-2 Filed 12/09/16 Page 32 of 37 Page ID #:126 EXHIBIT D Case 2:16-cv-08200-FMO-JC Document 9-2 Filed 12/09/16 Page 33 of 37 Page ID #:127 44 Exhibit 1 Case 2:16-cv-08200 Document 1-1 Filed 11/03/16 Page 39 of 59 Page ID #:45Case 2:16-cv-0820 -FMO-JC Document 9-2 Filed 12/09/16 Page 34 of 37 Page ID #:128 45 Exhibit 1 Case 2:16-cv-08200 Document 1-1 Filed 11/03/16 Page 40 of 59 Page ID #:46Case 2:16-cv-0820 -FMO-JC Document 9-2 Filed 12/09/16 Page 3 of 37 Page ID #:129 46 Exhibit 1 Case 2:16-cv-08200 Document 1-1 Filed 11/03/16 Page 41 of 59 Page ID #:47Case 2:16-cv-0820 -FMO-JC Document 9-2 Filed 12/09/16 Page 36 of 37 Page ID #:130 47 Exhibit 1 Case 2:16-cv-08200 Document 1-1 Filed 11/03/16 Page 42 of 59 Page ID #:48Case 2:16-cv-0820 -FMO-JC Document 9-2 Filed 12/09/16 Page 37 of 37 Page ID #:131