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United States District Court

For the Northern District of California

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

ANTHONY M. ROBINSON,

Plaintiff,

 v.

ARGENT MORTGAGE COMPANY, LLC;

WELLS ARGO LTD AND THEIR AGENT

HOME EQ. DBA BARCLAYS REAL

ESTATE INC., and DOES 1-100,

Defendants /

No. C-09-2075 MMC

ORDER GRANTING IN PART AND

DENYING IN PART DEFENDANTS’

MOTIONS TO DISMISS; DISMISSING

CLAIMS ARISING UNDER FEDERAL

LAW; REMANDING STATE LAW

CLAIMS; DENYING WITHOUT

PREJUDICE MOTION TO STRIKE;

VACATING JANUARY 15, 2010

HEARING 

Before the Court are three motions: (1) defendant Barclays Capital Real Estate, Inc.,

(“Barclays”) and Wells Fargo Bank, NA (“Wells Fargo”) “Motion to Dismiss Plaintiff’s Fourth

Amended Complaint,” filed December 8, 2009; (2) defendant Argent Mortgage Company,

LLC’s (“Argent”) “Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6),”

filed December 7, 2009; and (3) Argent’s “Motion to Strike Pursuant to Federal Rule of Civil

Procedure 12(f),” filed December 7, 2009. Plaintiff Anthony M. Robinson has filed

opposition to each of the above-referenced motions, and defendants have replied. 

Additionally, Barclays and Wells Fargo have filed a notice of joinder in Argent’s motion to

strike, to which plaintiff has filed opposition. Having read and considered the papers filed in

support of and in opposition to the above-referenced motions and notice of joinder, the

Court deems the matters appropriate for decision on the parties’ respective filings, hereby

Case 3:09-cv-02075-MMC Document 89 Filed 01/08/10 Page 1 of 5
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Although the last cause of action in the 4AC is titled “Thirteenth Cause of Action,”

the 4AC includes two separate claims titled “Ninth Cause of Action.”

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VACATES the January 15, 2010 hearing, and rules as follows.

A. Claims Arising Under Federal Law

In the operative pleading, titled “Amended 4th Class Action Legal Complaint”

(“4AC”), plaintiff alleges fourteen causes of action arising out an “adjustable rate mortgage”

transaction between plaintiff and Argent in 2004. (See 4AC ¶¶ 15.0, 27.0.)1

 According to

plaintiff, the subject mortgage was sold to Wells Fargo in “approximately” 2005, and has

been serviced by Barclays since the date of the sale to Wells Fargo. (See 4AC ¶¶ 30.0,

31.0.)

Each of the two causes of action titled “Ninth Cause of Action,” as well as the

Eleventh Cause of Action, alleges violations of federal statutes. The Tenth Cause of

Action, although titled “fraud under CC [California Civil Code] 1709,” is based entirely on an

alleged violation of a federal statute, and, consequently, is a claim arising under federal

law. See Ultramar America Ltd. v. Dwelle, 900 F.2d 1412, 1414 (9th Cir. 1990) (holding

claims brought under state law “arise under” federal law where “vindication of the state right

necessarily turns upon construction of a substantial question of federal law”).

Defendants, in their respective motions to dismiss, contend each of the abovereferenced federal claims is subject to dismissal for failure to state a claim.

1. Civil Rights Claims

In the 4AC, plaintiff alleges two civil rights claims. Specifically, in the first of the two

causes of action titled “Ninth Cause of Action,” plaintiff alleges a violation of 42 U.S.C.

§ 1981, and, in the second cause of action titled “Ninth Cause of Action, plaintiff alleges a

violation of 42 U.S.C. § 1982. Each of these causes of action is based on the theory that

the loan plaintiff obtained from Argent was made as part of an alleged scheme whereby

Argent “created, maintained and enforced higher loans for plaintiff and other minorities in

racial markets than those rates for whites in their neighborhoods.” (See 4AC ¶¶ 155.0,

170.0.) 

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By order filed October 6, 2009, the Court found plaintiff’s claims under § 1981 and

§ 1982 were subject to a two-year statute of limitations, and were subject to dismissal

because such claims accrued in 2004 when plaintiff obtained the allegedly discriminatory

loan from Argent. See Lukovsky v. City of County of San Francisco, 535 F.3d 1044, 1051

(9th Cir. 2008) (holding federal civil rights claim accrues when plaintiff knows or should

know he “[has] been injured and by whom, even if at that point in time the plaintiff[ ] did not

know of the legal injury, i.e., that there was an allegedly discriminatory motive underlying

the [defendant’s act]”). Further, by said order, the Court found plaintiff’s civil rights claims

were subject to dismissal as against Barclays and Wells Fargo for the additional reason

that plaintiff had failed to allege any facts to support a finding that Barclays or Wells Fargo

engaged in any alleged deprivation of plaintiff’s civil rights at any time. Finally, the Court

gave plaintiff the opportunity to amend to cure the noted deficiencies.

As defendants, in their respective motions to dismiss, argue, plaintiff has failed to

cure the deficiencies identified in the Court’s October 6, 2009 order. Indeed, as Argent

correctly points out, plaintiff did not substantively amend, in any way, his claims under

either § 1981 or § 1982.

Accordingly, for the reasons stated in the Court’s October 6, 2009 order, the Court

finds plaintiff’s claims under §§ 1981 and 1982 are subject to dismissal. Further, because

plaintiff has had the opportunity to amend to state viable claims under those federal

statutes, the Court finds it proper, at this time, to dismiss the two claims titled Ninth Cause

of Action, i.e., plaintiff’s claims under § 1981 and § 1982, without further leave to amend.

2. Homeowners’ Protection Act Claims

In the Eleventh Cause of Action, plaintiff alleges a violation of the Homeowners’

Protection Act (“HPA”), 12 U.S.C. § 4901 et seq. In the Tenth Cause of Action, plaintiff

alleges a “fraud” claim premised entirely on an alleged violation of the HPA.

As was explained in the Court’s October 6, 2009 order, the HPA limits the

circumstances under which private mortgage insurance can be required in connection with

a residential mortgage transaction, see 12 U.S.C. § 4902, and provides notice

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Defendants also argue there is no private cause of action under the HPA. As noted

in the Court’s October 6, 2009 order, however, § 4907 provides that a mortgagor may bring

a civil action against a “servicer, mortgagee, or mortgage insurer” who has violated the

FHA, and may recover “any actual damages sustained” and/or “statutory damages.” See

12 U.S.C. § 4907(a).

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requirements for both “private mortgage insurance,” see 12 U.S.C. §§ 4903-04, and “lender

paid mortgage insurance,” see 12 U.S.C. § 4905. In said order, the Court dismissed

plaintiff’s HPA claim for the reason that plaintiff, while alleging he was not provided notices

referenced in the HPA, had failed to allege he was required to obtain either type of

mortgage insurance.

Defendants argue that plaintiff, in his 4AC, has not cured the deficiencies identified

in the October 6, 2009 order.2 The Court agrees. Plaintiff again fails to allege he was

required to obtain either private mortgage insurance or lender paid mortgage insurance. 

Consequently, plaintiff’s allegations fail to implicate any substantive provision of the HPA.

Accordingly, the Tenth and Eleventh Causes of Action are subject to dismissal. 

Further, because plaintiff has had the opportunity to amend to state a violation of the HPA,

the Court finds it proper, at this time, to dismiss the Tenth and Eleventh Causes of Action

without further leave to amend.

B. State Law Claims and Motion to Strike

The instant action was removed from state court on the sole ground that plaintiff had

alleged claims arising under federal law. (See Notice of Removal ¶ 7.) Consequently, the

Court’s jurisdiction over the state law claims is supplemental in nature. See 28 U.S.C.

§ 1367(a).

A district court may decline to exercise supplemental jurisdiction where “the district

court has dismissed all claims over which it has original jurisdiction.” See 28 U.S.C.

§ 1367(c)(3). As discussed above, each of plaintiff’s claims arising under federal law has

been dismissed, and, given the early stage of the proceedings in federal court, the Court

declines to exercise supplemental jurisdiction over plaintiff’s state law claims and will

remand those claims to state court.

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Accordingly, to the extent defendants seek dismissal of the claims arising under

state law, their respective motions to dismiss and Argent’s motion to strike will be denied

without prejudice.

CONCLUSION

For the reasons stated above:

1. To the extent defendants seek dismissal of the two causes of action titled Ninth

Cause of Action, as well as the Tenth Cause of Action and the Eleventh Cause of Action,

defendants’ motions to dismiss are hereby GRANTED, and those causes of action are

hereby DISMISSED without leave to amend.

2. The remaining claims in the 4AC, specifically, the First through Eighth Causes of

Action, as well as the Twelfth Cause of Action and the Thirteenth Cause of Action, are

hereby REMANDED to the Superior Court of California, in and for the County of Alameda,

and to the extent defendants’ motions seek dismissal or the striking of any portion thereof,

the motions are hereby DENIED without prejudice.

IT IS SO ORDERED.

Dated: January 8, 2010 

MAXINE M. CHESNEY

United States District Judge

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