FILED
NOT FOR PUBLICATION DEC 12 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OLASUMBO TITILOLA AJETUNMOBI, No. 12-56523
Plaintiff - Appellant, D.C. No. 8:12-cv-00568-DOC-JPR
v.
MEMORANDUM*
CLARION MORTGAGE CAPITAL,
INC.,
Defendant,
and
COUNTRYWIDE HOME LOANS, INC.;
et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Submitted December 10, 2014**
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: GRABER, GOULD, and CALLAHAN, Circuit Judges.
Plaintiff-Appellant Olasumbo Titlola Ajetunmobi (“Ajetunmobi”) alleged
various fraud-based claims as well as claims for cancellation of deed of trust and
quiet title, and declaratory and injunctive relief against a number of defendants
including, Countrywide Home Loans, Inc. (“Countrywide”), Bank of America
(“BofA”), BAC Home Loans Servicing, LP (“BAC”), Mortgage Electronic
Registration Systems, Inc. (“MERS”), and Wells Fargo Bank, N.A. (“Wells
Fargo”). Countrywide, BofA, BAC, and MERS filed a Federal Rule of Civil
Procedure 12(b)(6) motion to dismiss, and the district court granted the motion
with prejudice on July 17, 2012. Ajetunmobi filed her notice of appeal shortly
thereafter on August 15, 2012.
Certain Defendants-Appellees claim that Ajetunmobi’s notice of appeal was
premature because the case was still pending against Wells Fargo. The district
court did not rule on Wells Fargo’s motion to dismiss until February 15, 2013.
However, when a party prematurely files a notice of appeal “after the court
announces a decision or order—but before the entry of the judgment or order—[the
notice of appeal] is treated as filed on the date of and after the entry.” Fed. R. App.
P. 4(a)(2). Therefore, Ajetunmobi’s appeal is timely.
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“We review de novo a district court’s grant of a motion to dismiss for failure
to state a claim under Federal Rule of Civil Procedure 12(b)(6) and for failure to
allege fraud with particularity under Federal Rule of Civil Procedure 9(b).” WPP
Luxembourg Gamma Three Sarl v. Spot Runner, Inc., 655 F.3d 1039, 1047 (9th
Cir. 2011).
1. A claim of fraudulent misrepresentation in California requires “a false
representation, knowledge of its falsity, intent to defraud, justifiable reliance, and
damages.” Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1105 (9th Cir. 2003)
(internal quotation marks omitted). Here, Ajetunmobi failed to plead with
particularity that any falsity existed. The July 2011 letter appears consistent with
the September 2011 assignment of the Deed of Trust. BAC and BofA never
indicated that they would not obtain an interest in the note at a later date, and
Ajetunmobi offered no evidence in support of her claim that BAC and BofA were
not the loan servicers. Therefore, the district court did not err in dismissing
Ajetunmobi’s claims for fraudulent misrepresentation.
2. Similarly, fraudulent concealment must be pleaded with particularity.
Cf. 389 Orange St. Partners v. Arnold, 179 F.3d 656, 662 (9th Cir. 1999). This
“requires that: (1) the defendant concealed a material fact; (2) the defendant was
under a duty to disclose the fact to the plaintiff; (3) the defendant concealed or
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suppressed the fact with an intent to defraud; (4) the plaintiff was unaware of the
fact and would have acted if he or she had known about it; and (5) the concealment
caused the plaintiff to sustain damage.” Williamson v. Gen. Dynamics Corp., 208
F.3d 1144, 1156 n.3 (9th Cir. 2000). In this case, Ajetunmobi never indicated
which document, representation, or communication contained the allegedly
concealed information. Accordingly, the district court did not err in dismissing
Ajetunmobi’s claims for fraudulent concealment.
3. “Conspiracy is not a cause of action, but a legal doctrine that imposes
liability on persons who, although not actually committing a tort themselves, share
with the immediate tortfeasors a common plan or design in its perpetration.”
Applied Equip. Corp. v. Litton Saudi Arabia Ltd., 869 P.2d 454, 457 (Cal. 1994)
(in bank). “Standing alone, a conspiracy does no harm and engenders no tort
liability. It must be activated by the commission of an actual tort.” Id. at 511.
Ajetunmobi failed to plead the critical conspiratorial act or underlying tort needed
to assert this theory of liability. Thus, the district court properly dismissed her
claim for civil conspiracy to defraud.
4. California Business and Professions Code § 17200 prohibits “any
unlawful, unfair or fraudulent business act.” Ajetunmobi relied on the same acts
alleged in her fraudulent misrepresentation and fraudulent concealment claims in
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asserting her § 17200 claim; however, the acts she relied upon did not appear to be
fraudulent. As such, the district court did not err in dismissing Ajetunmobi’s
§ 17200 claim.
5. The Truth in Lending Act (“TILA”) states that “any action under this
section may be brought . . . within one year from the date of the occurrence of the
violation.” 15 U.S.C. § 1640(e). In this case, Ajetunmobi signed the original note
and loan agreement on February 23, 2007. All parties agreed that shortly
thereafter, Countrywide obtained ownership of the loan. Ajetunmobi brought the
present action in 2012. She conceded that the statute of limitations barred her
TILA claim against Countrywide. Consequently, the district court properly
dismissed Ajetunmobi’s TILA claim against Countrywide.
TILA’s Regulation Z applies only to a “covered person.” 12 C.F.R.
§ 226.39(a)(1). A covered person is an entity that “becomes the owner of an
existing mortgage loan by acquiring legal title to the debt obligation.” Id. “[A]
servicer of a mortgage loan shall not be treated as the owner of the obligation if the
servicer holds title to the loan, or title is assigned to the servicer, solely for the
administrative convenience of the servicer in servicing the obligation.” Id.
Here, BofA and BAC serviced Ajetunmobi’s loan before MERS assigned
BofA the Deed of Trust. The record indicates that MERS assigned the Deed of
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Trust to BofA for “administrative convenience.” The district court, therefore, did
not err in dismissing Ajetunmobi’s claims against BofA and BAC.
Ajetunmobi’s original deed of trust listed MERS as the beneficiary and
nominee for the lender and the lender’s assign. “MERS is a private electronic
database . . . that tracks the ‘beneficial interest’ in home loans, as well as any
changes in loan servicers.” Cervantes v. Countrywide Home Loans, Inc., 656 F.3d
1034, 1038 (9th Cir. 2011). MERS itself is a system and does not possess any legal
interest in the loans. Instead, the legal interests lay in the hands of the MERS
members. See id. Thus, the district court did not err in dismissing Ajetunmobi’s
TILA claims against MERS.
6. Ajetunmobi’s claim to quiet title and cancellation of the Deed of Trust
depends on the previously discussed fraudulent acts and the alleged TILA
violations. As these claims fail, the district court properly dismissed Ajetunmobi’s
claim for quiet title and cancellation of the deed of trust.
7. In order “[t]o obtain declaratory relief in federal court, there must be an
independent basis for jurisdiction.” Stock W., Inc. v. Confederated Tribes of the
Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989). Declaratory and
injunctive relief are remedies, not causes of action. Roberts v. L.A. Cnty. Bar
Ass’n, 129 Cal. Rptr. 2d 546, 555 (Ct. App. 2003). In this case, all of
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Ajetunmobi’s claims were properly dismissed and, consequently, she had no claim
upon which to request relief. Therefore, the district court properly dismissed her
claims for declaratory and injunctive relief.
8. “[D]enial of leave to amend the complaint is reviewed for an abuse of
discretion.” Cervantes, 656 F.3d at 1041. While leave to amend may be granted
freely, Fed. R. Civ. P. 15(a)(2), “a district court may dismiss without leave where a
plaintiff’s proposed amendments would fail to cure the pleading deficiencies and
amendment would be futile,” Cervantes, 656 F.3d at 1041. Here, it appears that
leave to amend would have been futile, so there was no abuse of discretion.
AFFIRMED.
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