Ronald Gutierrez v. Wells Fargo Bank

concurring in the judgment:

On appeal, when reviewing a district court’s order granting a motion to dismiss, all allegations of material fact in the complaint must be taken as true and construed in the light most favorable to the nonmov-ing party. See Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir.2005). In his complaint, Gutierrez alleged that the definition of “tax service fee” in the Settlement Cost Booklet did not permit Wells Fargo to charge him a fee connected to the payment of property taxes. In its motion to dismiss, Wells Fargo asserted that its prac *911 tices complied with its interpretation of the definition of “tax service fee.”

In making its decision, the majority improperly accepts Wells Fargo’s arguments and declares that Wells Fargo has acted in accordance with its interpretations of whatever obligations the “tax service fee” provision imposes upon it. It cites no precedent defining the term “tax service fee.” It engages in no statutory construction of alleged statutes or regulations nor any interpretation of alleged contractual terms. On this limited record and considering our role at the motion to dismiss phase, the majority offers no reason that Wells Fargo’s…

MEMORANDUM *

Ronald Gutierrez appeals the district court’s dismissal of his action for failure to state a claim. His claims turn on language contained in a Settlement Cost Booklet mandated by Department of Housing and Urban Development regulations and provided to him by Wells Fargo. The facts are known to the parties and will not be repeated here.

The district court did not err when it concluded that Gutierrez failed to allege adequately that Wells Fargo’s practices were contrary to the Booklet’s language. The Booklet provides that the tax service fee “covers the cost of your lender engaging a third party to monitor and handle the payment of your property tax bills.” It explains that “[t]his is done to ensure that your tax payments are made on time and to prevent tax liens from occurring.” It also states that the tax service fee is “paid to a tax service provider for information on the real estate property tax.” Gutierrez urges that Wells Fargo did not actually provide tax services because he paid his own property taxes in lieu of Wells Fargo maintaining an escrow account to pay those taxes.

Gutierrez’s allegations regarding Wells Fargo’s business practices do not plausibly…

FILED

NOT FOR PUBLICATION APR 06 2015

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RONALD M. GUTIERREZ, on behalf of No. 12-17271 himself and all others similarly situated, D.C. No. 3:12-cv-01135-SI Plaintiff - Appellant,

v. MEMORANDUM*

WELLS FARGO BANK, NA, DBA Wells Fargo Home Mortgage, Inc. And WELLS

FARGO REAL ESTATE TAX

SERVICES, LLC,

Defendants - Appellees.

Appeal from the United States District Court for the Northern District of California Susan Illston, Senior District Judge, Presiding

Argued and Submitted December 12, 2014 San Francisco, California

Before: O’SCANNLAIN, N.R. SMITH, and HURWITZ, Circuit Judges.

Ronald Gutierrez appeals the district court’s dismissal of his action for

failure to state a claim. His claims turn on language contained in a Settlement Cost

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Booklet mandated by Department of Housing and Urban Development regulations

and provided to him by Wells Fargo. The…