MEMORANDUM DECISION RE: MOTIONS TO DISMISS FIRST AMENDED COMPLAINT
NEIL W. BASON, Bankruptcy Judge.
Except as noted below, this Court is persuaded by the arguments in the motions of the Fay Parties and BofA (each defined below) to dismiss Debtor's First Amended Complaint ("FAC," adv. dkt. 45).1 At the above-captioned hearing Plaintiff/Debtor ("Debtor") suggested that newly discovered information about an alleged loan modification might establish grounds for a motion to further amend the FAC, but no such motion has been filed by the deadline of November 26, 2019 set by this Court. Accordingly, the dismissal of the FAC will be without leave to amend.
1. BACKGROUND
This Court previously dismissed Debtor's original complaint (see adv. dkt. 30 and 39-40). Much of this Court's reasoning in dismissing the original complaint (adv. dkt. 30) applies again to the FAC.
Debtor filed his FAC on September 17, 2019. On October 1, 2019, Defendants Fay Servicing, LLC ("Fay"), Wilmington Savings Fund Society, FSB, dba Christian Trust, Not Individually But As Trustee For Hilldale Trust ("Wilmington"), and BSI Financial Services, Inc. ("BSI") (collectively the "Fay Parties") filed their motion to dismiss the FAC (the "Fay Parties MTD," adv. dkt. 47, 48). On the same date Defendant Bank of America, N.A. ("BofA") filed its motion to dismiss the FAC (the "BofA MTD," adv. dkt. 50). Debtor filed his opposition papers (adv. dkt. 57-59), and the Fay Parties and BofA filed their reply papers (adv. dkt. 62, 63).2
2. JURISDICTION, AUTHORITY, AND VENUE
This Bankruptcy Court has jurisdiction, and venue is proper, under 28 U.S.C. §§ 1334 and 1408. This Bankruptcy Court has the authority to enter a final judgment or order under 28 U.S.C. § 157(b)(2)(K). See generally Stern v. Marshall, 131 S.Ct. 2594 (2011); In re AWTR Liquidation, Inc., 547 B.R. 831 (Bankr. C.D. Cal. 2016) (discussing Stern); In re Deitz, 469 B.R. 11 (9th Cir. BAP 2012) (same). Alternatively, the parties have expressly or implicitly consented to this Bankruptcy Court's entry of a final judgment or order. See Wellness Intern. Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015); and see In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013). See also adv. dkt. 17, pp. 4 & 6 and Rules 7008 & 7012(b) and 9013-1(c)(5)&(f)(3).
3. DISCUSSION
a. Legal Standards
On a motion to dismiss for failure to state a claim (Rule 12(b)(6), incorporated by Rule 7012), this Court generally must accept all factual allegations as true, but:
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.... Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. [Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007))]
This Court must consider not only the complaint itself, but also any documents incorporated into the complaint and matters of which a court may take judicial notice. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
b. Analysis
Debtor argues that he was not required to tender payments because he "has a counterclaim" so "the tender and the counterclaim offset one another." Adv. dkt. 57, pp.10:27-11:2 & p.11:13. But that is circular reasoning: Debtor points to no "counterclaim" other than his claim for wrongful foreclosure, but the foreclosure is only wrongful if (among other things) Debtor tendered payments and Creditors foreclosed anyway, and Debtor fails to allege that he was ready, willing, and able to tender all the missing payments (as modified by the stipulation), let alone that he actually did so.
Debtor argues in the alternative that he was not required to tender payments because "it would be inequitable to impose such a condition ...." Adv. dkt. 57, p.11:3-5 & p.11:13. But Debtor fails to explain what is inequitable about foreclosing when Debtor was not ready, willing, and able to pay his mortgage (as modified by the stipulation), and when he did not actually tender the payments.
Debtor argues (Adv. dkt. 57, pp.12:20-13:3; FAC, p. 11, ¶ 46) that the signature on one assignment among Creditors does not comport with California law:
When an attorney in fact executes an instrument transferring an estate in real property, he must subscribe the name of his principal to it, and his own name as attorney in fact. [Cal. Civ. C. § 1095 (emphasis added)]
But the assignment is signed "by Fay Servicing, LLC as attorney in fact," and Wilmington is listed right above the signature line. FAC, Ex. H (emphasis added). Debtor asserts (FAC, ¶ 46, p. 11:22-27) that the signature line should read "its attorney in fact" not "as attorney in fact" (emphasis added). Debtor cites no authority for this argument, which is contrary to the plain meaning of the statute, and also contrary to any common sense application of the statute. See Reply (adv. dkt. 63), p.3:11-23.
Debtor also asserts (FAC, p.11, para. 43 & 45) that the date on a form reflecting a transfer of a claim (FAC, Ex. G) is different from the date of the transfer of the deed of trust from BofA to Wilmington (FAC, Ex. F), but that is a non-sequitur. The date on the notice of transfer of claim has no bearing on when the transfer of the security interest actually occurred. See Reply (adv. dkt. 63), p.3:11-23.
c. Creditors' arguments that are not persuasive
Creditors' alternative arguments that are not persuasive to this Court are as follows. It bears emphasizing, though, that these are only alternative arguments, and this Court remains persuaded by all of Creditors' other arguments for dismissal.
First, this Court is not persuaded by Creditors' alternative argument that Debtor was not substituted for the original borrower. For the reasons previously set forth (adv. dkt. 30, p.6:5-20), Debtor was substituted (although the Fay Parties might not have had notice of that fact until Debtor brought to their attention his stipulation with BofA).
Second, this Court is not persuaded the Fay Parties' argument that Debtor seeks an advisory opinion in his claim for declaratory relief (adv. dkt. 47, p.22:24-28). There is an actual controversy between Debtor and the Fay Parties regarding their alleged refusal to accept his payments, and their foreclosure of the property in which he asserted an ownership interest.
Third, this Court is not persuaded by the Fay Parties' statute of limitations defense (adv. dkt. 47, p.17:11-17). Contrary to the Fay Parties' argument, the statute would not start to run when the stipulation was entered into, because Plaintiff/Debtor alleges that BofA continued to accept payments. Rather, the statute would have started to run in December of 2016, when Plaintiff/Debtor alleges that his payments were refused by the new loan servicer. See FAC (adv. dkt. 45), para.33-40, and Opp. to MTD (adv. dkt. 59), pp.5:14-6:11.
Fourth, this Court is not persuaded to accept, for purposes of these proceedings, Creditors' assertion that no payments were refused. See, e.g., MTD (adv. dkt. 50, p.16:13-15) and Reply (adv. dkt. 62, p.5:13-24). This Court cannot resolve factual disputes in the MTD context.
Fifth, this Court is not persuaded that Debtor had to specify the name of the person(s) who made alleged oral misrepresentations reinforcing that, pursuant to the stipulation with BofA, Debtor had been substituted for the original borrower. See MTD (adv. dkt. 50, pp.11:28-12:1). Such alleged oral statements might or might not be admissible at trial, but Creditors have not cited sufficient authority to disregard them in this MTD context.
Notwithstanding this Court's rejection of the foregoing alternative arguments, this Court remains persuaded by all of Creditors' other arguments. Debtor's FAC fails to state a claim as a matter of law.
4. CONCLUSION
Even after Debtor was effectively substituted as the borrower, he has failed to allege that he was ready, willing, and able tender all payments, let alone that he actually did so. Unsurprisingly, when the mortgage was going unpaid, Creditors foreclosed. Debtor has not suggested any way in which he could further amend his FAC to state a cognizable claim. Accordingly, the MTDs must be granted.
The Fay Parties and BofA are directed to lodge a proposed order on their respective MTDs within seven days of entry of this Memorandum Decision on the docket.
