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Subramani v. Wells Fargo Bank, N.A. - Judge Conti's Excellent Analysis

June 3, 2014

What can we gleen from reading the VERY INFORMATIVE ORDER written by a very astute Judge Samuel Conti on Wells' MTD FAC in which he granted in part, and denied in part with leave to amend---to file a SAC?

More importantly, what can we gleen by reading the DOCKET ENTRIES which are very telling?

Apparently the "Committee" who assigns judges in the Northern District (No.Cal) pulls these cases from the judges who are regularly assigned to the case when it is filed (under the federal system, when a case is filed the clerk automatically assigns it the next judge in the pecking order list). I think the "behind the scenes" federal committee orders certain judges to "voluntarily recuse" themselves (without supplying any reason why) so the federal committee can assign the case to the Judge THEY want to adjudicate the case.

In this case, the federal committee believed Samuel Conti should be assigned to this case. What inferences can one draw from that?

Is this the what the federal "powers to be" are doing in the Central District, the Southern District, and other Districts? Interesting?

The decision is very well written. Judge conti leaves no stone unturned. He discusses most of the recent cases in the Ninth Circuit (and other circuits occasionally) federal cases and California cases he analyzes the issues in the federal and state aftermath of the relevant cases in the ninth circuit on issues reappearing in all MTD.

Standards of Dismissal on 12b6 MTD: (Navarro, Balistreri, Iqbal, Twombley) He distinguishes where necessary.

Securitization Failures: Almutarreb, GLASKI (minority rule), Jenkins (majority rule) and notes that until either the Ninth Circuit or the California Supreme Court rules on GLASKI (or its progeny) most courts will go with majority
tender: he cites Tamburri and Dimock as the EXCEPTION to TENDER Rule where P alleges VOID instead of VOIDABLE trustee sale.

Authorized Agent to Foreclose; he distinguished GOMES citing LESTER.

Civil 2932.5 applies only to MORTGAGES (2-party security loans) and NOT trust deeds (3-party security loans) he cites CALVO.

Bank owes Fiduciary Duty (constructive fraud) he cites Nymark as exception and grants leave to amend to allege Nymark arguments.

Civil 2934(a) arguments won't work as lender authorizes beneficiaries to use AGENTS without notice to debtor.

UNJUST ENRICHMENT (quasi contract) he cites BERNARDI and Davenport taking position P has a claim (D took $ on void contract).

UCL claims distinguishes the different PRONGS and provides a ROAD MAP of how P must plead these claims to survive MTD. A GREAT ANALYSIS AND CLEARLY A BENEFIT TO P AS HE RECITES EXACTLY WHAT P MUST PLEAD (helping P!!!!) He cites all the leading cases on UCL claims and how they interrelate and what P must PLEAS (helping P).

TILA - he gives P leave to amend and EXPLAINS how P must PLEAD FACTS showing how the 3-4 year SOL WAS TOLLED (helps P).

He holds that DECLARATORY RELIEF is a NOT A CAUSE OF ACTION , but rather a REMEDY. Here is where he FAILED to tell P what she needs to PLEAD in FEDERAL COURT for DECLARATORY RELIEF. 22 USC 2201(a) which GRANTS a CAUSE OF ACTION in FEDERAL COURT for declaratory relief. See page 14 of the Carole Alles opposition to 12 b 6 attached.

VERY WELL WRITTEN DECISION...... IT SHOULD BE USED AS A MODEL IN PLEADING A NEW CASE IN FEDERAL COURT EXCELLENT ANALYSIS.

All documents available in PDF format.

 

 

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Nancy Duffy McCarron, CBN 164780
Attorney, Real Estate Broker, BBB Arbitrator, CA Notary Public
Certified Forensic Loan Auditor, Property Manager

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