Munoz et al v. Federal National Mortgage Association et al

Filing 34

ORDER that Defendant Green Tree Servicing's Motion to Dismiss First Amended Complaint (Doc. 15 ) is GRANTED IN PART AND DENIED IN PART. Counts 3, 7, 8, 9, and 12 of the Amended Complaint are dismissed as to Green Tree. Counts 1, 2, 4, 5, 6, 10, 11, and 13 are not dismissed or are only partially dismissedas described herein. Signed by Judge G Murray Snow on 7/14/2014.(KMG)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

George Munoz; Magda Reyes,

10

Plaintiffs,

No. CV-13-01826-PHX-GMS
ORDER

11

v.

12

Federal National Mortgage Association;
Bank of America Corporation; Greentree
Servicing LLC; Unknown Parties,

13
14

Defendants.

15

Pending before the Court is Defendant Green Tree Servicing’s Motion to Dismiss

16

First Amended Complaint. (Doc. 15.) For the following reasons, the Motion is granted in

17

part and denied in part.

18

BACKGROUND

19

Plaintiffs George Munoz and Magda Reyes obtained a mortgage in October 2006

20

on their home in Surprise, Arizona. (Doc. 11 ¶ 13.) The other defendant in this case,

21

Bank of America, formerly Countrywide Home Loans or CFC, initially provided and

22

serviced the loan in question. (Id. ¶¶ 13–25.) The allegations related to Bank of

23

America’s conduct are not relevant to this Motion to Dismiss, which concerns only

24

defendant Green Tree Servicing, LLC (“Green Tree”).1

25

///

26
27
28

1

Although Plaintiffs generally allege that “Green Tree participated in the acts and
practices described herein,” (Id. ¶ 3) they plead no facts to suggest that Green Tree had
anything to do with their loan until April 10, 2012.

1

On April 10, 2012, all beneficial interests and the servicing responsibilities for the

2

loan were assigned to Defendant Green Tree Servicing, LLC (“Green Tree”). (Id. ¶ 26.)

3

Plaintiffs had previously been pursuing various forms of assistance with their loan from

4

Bank of America when Green Tree took over. Plaintiffs unsuccessfully sought a loan

5

modification from Green Tree and later unsuccessfully presented a buyer for a short sale.

6

(Id. ¶¶ 26–36.) Plaintiffs allege that Green Tree provided false and misleading

7

information in both of these transactions and failed to inform them of other available

8

options for relief. (Id.)

9

After Plaintiffs ceased paying their mortgage, Green Tree recorded a notice of

10

trustee sale on November 5, 2012. (Doc. 15 at 4.) That foreclosure has been postponed

11

and has not yet occurred. (Id.) For a period of time, Plaintiffs were under the impression

12

that the foreclosure had already occurred even though they remained in the home. (Doc.

13

11 ¶ 37.) On June 11, 2013 and again on June 25, Green Tree offered Plaintiffs a

14

permanent modification of their loan. (Id. ¶¶ 37–40.) Plaintiffs did not accept either offer

15

and allege that Green Tree provided them with an unreasonable deadline of five or ten

16

days to reply to those offers. (Id.)

17

On August 9, 2013 the Plaintiffs initiated this action in Arizona Superior Court

18

and Defendants removed to this Court. (Docs. 1, 1-2.) The Plaintiffs filed an Amended

19

Complaint (“FAC”) on October 23, 2013 and Defendant Green Tree filed the instant

20

Motion to Dismiss on December 4, 2013. (Docs. 11, 15.)
DISCUSSION

21
22

I.

Legal Standard

23

Federal Rule of Civil Procedure 12(b)(6) is designed to “test[] the legal sufficiency

24

of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). To survive dismissal

25

for failure to state a claim pursuant to Rule 12(b)(6), a complaint must contain more than

26

“labels and conclusions” or a “formulaic recitation of the elements of a cause of action”;

27

it must contain factual allegations sufficient to “raise a right to relief above the

28

speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). While “a

-2-

1

complaint need not contain detailed factual allegations . . . it must plead ‘enough facts to

2

state a claim to relief that is plausible on its face.’” Clemens v. DaimlerChrysler Corp.,

3

534 F.3d 1017, 1022 (9th Cir. 2008) (quoting Twombly, 550 U.S. at 570). “A claim has

4

facial plausibility when the plaintiff pleads factual content that allows the court to draw

5

the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft

6

v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). The plausibility

7

standard “asks for more than a sheer possibility that a defendant has acted unlawfully.”

8

Id.

9

When analyzing a complaint for the failure to state a claim under Rule 12(b)(6),

10

“[a]ll allegations of material fact are taken as true and construed in the light most

11

favorable to the nonmoving party.” Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir. 1996).

12

However, legal conclusions couched as factual allegations are not given a presumption of

13

truthfulness, and “conclusory allegations of law and unwarranted inferences are not

14

sufficient to defeat a motion to dismiss.” Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir.

15

1998).

16

Federal Rule of Civil Procedure 9(b) requires more specificity for allegations of

17

fraud, including an account of the “time, place, and specific content of the false

18

representations as well as the identities of the parties to the misrepresentations.” Edwards

19

v. Marin Park, Inc., 356 F.3d 1058, 1066 (9th Cir. 2004) (citation omitted). In addition to

20

time, place, and content allegations, the plaintiff also must explain what is false or

21

misleading about the statements or omissions. In re Stac Electronics Sec. Litig., 89 F.3d

22

1399, 1404 (9th Cir. 1996). “To comply with Rule 9(b), allegations of fraud must be

23

specific enough to give defendants notice of the particular misconduct which is alleged to

24

constitute the fraud charged so that they can defend against the charge and not just deny

25

that they have done anything wrong.” Bly–Magee v. California, 236 F.3d 1014, 1019 (9th

26

Cir. 2001) (citation, quotations omitted).

27

As a general rule, “a district court may not consider any material beyond the

28

pleadings in ruling on a Rule 12(b)(6) motion.” Branch v. Tunnell, 14 F.3d 449, 453 (9th

-3-

1

Cir. 1994), overruled on other grounds by Galbraith v. Cnty. of Santa Clara, 307 F.3d

2

1119 (9th Cir. 2002) (citation omitted). However, documents subject to judicial notice

3

may be considered on a motion to dismiss. In doing so, the Court does not convert a

4

motion to dismiss to one for summary judgment. See Mack v. South Bay Beer Distrib.,

5

798 F.2d 1279, 1282 (9th Cir. 1986), overruled on other grounds by Astoria Fed. Sav. &

6

Loan Ass’n v. Solimino, 501 U.S. 104 (1991).

7

II.

Analysis

8

Green Tree first argues that dismissal is appropriate on all counts under Rule 8(a),

9

which requires “a short and plain statement of the claim showing that the pleader is

10

entitled to relief.” Fed. R. Civ. P. 8(a). It argues that the Plaintiffs have failed to comply

11

with Rule 8(a) because they provide only “threadbare accusations and conclusions and

12

recitations of law.” (Doc. 15 at 7.)

13

Here, the Plaintiffs set out occasions on which Defendants made promises or

14

assurances with respect to various refinancing, short-sale, and other loan modification

15

opportunities. Plaintiffs’ claim that they were misled and harmed by these alleged

16

actions. Although the FAC does include legal conclusions and recitations of law,

17

Plaintiffs also plead enough factual material to demonstrate facial plausibility if those

18

facts are taken as true. As discussed below, not all of the Claims survive this Motion to

19

Dismiss, but the Court will not dismiss the entire FAC as failing to meet the Rule 8(a)

20

standards.

21

A.

22

The Arizona Consumer Fraud Act (“CFA”) grants an implied private right of

23

action against persons who violate its provisions. Dunlap v. Jimmy GMC of Tucson, Inc.,

24

136 Ariz. 338, 342, 666 P.2d 83, 87 (Ct. App. 1983). To prevail on a CFA claim in

25

Arizona, the plaintiff must show “(1) a false promise or misrepresentation made in

26

connection with sale or advertisement of merchandise, and (2) consequent and proximate

27

injury.” Stratton v. Am. Med. Sec., Inc., No. CV-07-1491-PHX-SMM, 2008 WL 2039313

28

at *7 (D. Ariz. May 12, 2008) (citing Kuehn v. Stanley, 208 Ariz. 124, 129, 91 P.3d 346,

Arizona’s Consumer Fraud Act Claims (Counts One and Two)

-4-

1

351 (Ct. App. 2004)). Because claims brought under the CFA involve allegations of

2

fraud, they must be pled with particularity. Silving v. Wells Fargo Bank, NA, 800 F. Supp.

3

2d 1055, 1075 (D. Ariz. 2011).

4

Green Tree argues that Counts One and Two should be dismissed because

5

Plaintiffs allegations do not relate to “merchandise,” a “sale,” or an “advertisement” as

6

those terms are used in the CFA. Its position is directly contradicted by the case it cites.

7

Villegas v. Transamerica Fin. Servs., Inc., 147 Ariz. 100, 102–03, 708 P.2d 781, 783–84

8

(Ct. App. 1985). Villegas held that for purposes of the CFA: the money in a loan is

9

merchandise, the loan itself is a sale, and an oral inducement to take a loan is an

10

advertisement. Id. Green Tree’s attempt to distinguish this case based on the holding in

11

Walker v. Gallegos is unavailing. 167 F. Supp. 2d 1105, 1106–08 (D. Ariz. 2001). In

12

Walker a son was being removed from his deceased mother’s trailer based on the loan she

13

had taken on it. Id. This court made it clear in Gallegos that based on Villegas the

14

mother’s loan did fall under the CFA but that the son’s claims against an attorney seeking

15

to repossess the collateral were too attenuated to state a CFA claim. Id.

16

Here, Plaintiffs allege multiple occasions in which defendants made oral

17

inducements about refinancing, short sales, and other loan modification opportunities. All

18

of those events were attempted sales of merchandise in the form of loan money. There is

19

not attenuation because the actual parties to these transactions are the plaintiff and

20

defendant here, unlike Gallegos in which neither the son nor the attorney were parties to

21

the underlying loan transaction. Claims One and Two are not dismissed for failing to

22

state a claim that involves merchandise, a sale, or an advertisement under the CFA.2

23

B.

Breach of Contract (Count Three)

24

Under Arizona law, a breach of contract claim contains three elements: “an

25

agreement, the right to seek relief, and breach by a defendant.” Narramore v. HSBC Bank

26
2

27
28

Plaintiffs’ Response argues that Green Tree failed to dispute that it is bound by
the conditions of various government programs including MHA and HAMP. Green Tree
did not allege that as a basis for it motion and this Court makes no finding regarding
Plaintiffs’ contentions that these programs apply or provide a cause of action.
-5-

1

USA, N.A., No. 09-CV-635-TUC-CKJ, 2010 WL 2732815 at *4 (D. Ariz. July 7, 2010).

2

A plaintiff must also allege that the plaintiff was damaged as a result of the breach. Id.

3

Green Tree asserts that the Plaintiffs’ claim should be dismissed because it fails to allege

4

any agreement with specificity and because oral agreements are barred by the statue of

5

frauds.

6

Count Three alleges promises contained in “documents developed by the parties in

7

the origination of the loan and mortgage” but it does not specify what those documents

8

are. The loan documentation is mentioned but there is no indication about how it was

9

breached. Modifications that were offered and short-sale packets are also mentioned but

10

the FAC does not allege that any of these were completed contracts. Nor does it allege

11

how they were breached. Plaintiffs’ claim that these contracts include promises as to loss

12

mitigation, loan modification, payment collection, and foreclosure but they do not specify

13

such promises in a way that makes a right to relief plausible. Instead Plaintiffs’ claim that

14

they and the Defendants “understood” that things were subject to modification based on

15

economic circumstances. Even if such an understanding could be a contract, Green Tree

16

did in fact offer a modification on two occasions. Here, the FAC does not allege enough

17

factual material about the contracts or how they were allegedly breached in order to raise

18

the right to relief above a speculative level. The Plaintiffs have failed to state any claim in

19

relation to these contracts and Claim Three is dismissed as to Green Tree.

20

C.

Ariz. Rev. Stat. Title 33 Chapter 6.1 (Count Four)

21

Chapter 6.1 of Title 33 of the Arizona Revised Statutes contains twenty-three

22

sections relating to Deeds of Trust. These sections establish requirements for everything

23

from appointing successor trustees to the disposition of proceeds from a trustee’s sale.

24

See A.R.S. § 33-801 et seq. The Plaintiffs do not specify which section of Chapter 6.1

25

Green Tree violated. Plaintiffs also make assertions that Arizona court precedent requires

26

Defendants to strictly comply with all of the requirements of Title 33, which should be

27

strictly construed in Plaintiffs’ favor. Finally, Plaintiffs argue that Defendants failed to

28

provide loss mitigation and foreclosure process that includes substantive fairness.

-6-

1

Green Tree initially hypothesizes that Plaintiffs intended to make a claim for

2

wrongful foreclosure, and later suggests that Plaintiffs may be alleging that the entire

3

chapter was violated. The Court does not know which of the various requirements of

4

Title 33, Chapter 6.1 Plaintiffs believe were violated. Plaintiffs’ Response does not

5

provide any guidance to understanding its FAC. As in other places, Plaintiffs’ Response

6

is primarily just a copy of the same language found in the FAC. The allegation that the

7

process lacked “substantive fairness” is a legal conclusion that is insufficient to state a

8

claim.

9

The Court need not read through an entire chapter of Arizona statutes and then

10

through the background section of Plaintiffs’ FAC searching for a claim. Plaintiffs have

11

failed to identify what section and requirement was violated. The only possible violation

12

for which they have stated any factual material is that they were not informed of the

13

rescheduling of the foreclosure sale. Aside from this, they have failed to state a claim

14

under Title 33, Chapter 6.1 of the Arizona Revised Statutes, and Count Four of their FAC

15

is dismissed as to Green Tree for all allegations except the claim that they were not

16

provided with the required notice that the foreclosure sale had been rescheduled.

17

D.

Tortious Negligent Misrepresentation (Count Five)

18

Arizona recognizes the tort of negligent misrepresentation as set out in the

19

Restatement (Second) of Torts. McAlister v. Citibank (Ariz.), a Subsidiary of Citicorp,

20

171 Ariz. 207, 215, 829 P.2d 1253, 1261 (Ct. App. 1992). Negligent misrepresentation is

21

defined as supplying “false information for the guidance of others in their business

22

transactions” in the course of the tortfeasor’s business, profession, employment, or any

23

other transaction in which he has a pecuniary interest. St. Joseph’s Hosp. & Med. Ctr. v.

24

Reserve Life Ins. Co., 154 Ariz. 307, 312, 742 P.2d 808, 813 (1987). Recovery is limited

25

to the persons or limited group of persons “for whose benefit and guidance [the

26

tortfeasor] intends to supply the information.” Id. Liability is limited in scope “because it

27

is premised on the reasonable expectations of a foreseeable user of information supplied

28

in connection with commercial transactions.” Id. at 312–13, 742 P.2d at 813–14.

-7-

1

Here, this Court has already determined that the FAC provides sufficient factual

2

information about the alleged misrepresentations to meet the requirements of Rule 8(a).

3

The question on this and other fraud based claims is whether there is sufficient additional

4

detail to survive dismissal based on the requirements of Rule 9(b) that fraud based claims

5

are plead with particularity.

6

The FAC does provide sufficient particularity about time, place, and specific

7

content of the allegedly fraudulent communications. The FAC includes dates of the

8

communications and tells whether they were by phone or letter. In some cases Plaintiffs

9

provide the name of the employee they spoke with on the phone. They also describe the

10

false information given to them about which loss mitigation programs were available.

11

They allege that these statements were untrue because other forms were available and

12

should have been offered. This information was given by Green Tree in the course of its

13

business in a way that guided Plaintiffs’ financial decisions. Therefore, Count Five is not

14

dismissed.

15

E.

Tortious Fraudulent Concealment (Count Six)

16

Arizona recognizes the tort of fraudulent concealment as set out in the

17

Restatement (Second) of Torts. Wells Fargo Bank v. Ariz. Laborers Local No. 395

18

Pension Trust Fund, 201 Ariz. 474, 496, 38 P.3d 12, 34 (2002). The tort is defined as

19

concealing or by other action intentionally preventing a party to a transaction from

20

acquiring material information. Id.

21

For the reasons just described, Plaintiffs adequately plead this fraud based claim

22

with particularity. Plaintiffs allege that Green Tree concealed the availability of other loss

23

mitigation programs. They also allege that Green Tree concealed accurate information

24

during the processing of the short sale application and throughout their dealings. Count

25

Six is not dismissed.

26

F.

Tortious Failure to Hire, Train or Supervise Employee (Count Seven)

27

In Arizona, the “failure to hire” tort has only been discussed in the context of job

28

applicants bringing suits against prospective employers, and Arizona courts have

-8-

1

specified that the Arizona Civil Rights Act does not create common law action for

2

wrongful failure to hire. Burris v. City of Phoenix, 179 Ariz. 35, 43, 875 P.2d 1340, 1348

3

(Ct. App. 1993). The Plaintiffs do not cite to any case law that supports a failure to hire

4

claim on the facts of this case. Because a wrongful failure to hire claim does not apply to

5

this context, The Plaintiffs’ claim on that theory is dismissed.

6

“For an employer to be held liable for the negligent hiring, retention, or

7

supervision of an employee, a court must first find that the employee committed a tort.”

8

Kuehn, 208 Ariz. at 130, 91 P.3d at 352. The Plaintiffs do not identify in their FAC or in

9

their Response which employee is alleged to have committed what tort. Thus, they have

10

failed to allege with sufficient specificity which Green Tree employee committed a tort,

11

much less what tort it was, or how Green Tree was negligent in hiring, training, or

12

supervising the unidentified employee. They have further failed to plead any facts that

13

would indicate that any mistake by any employee was caused by poor hiring, training, or

14

supervision. As such, Plaintiffs do not state a claim that Green Tree failed to properly

15

hire, train, or supervise employees. Count Seven is dismissed as to Green Tree.

16

G.

Consent Judgment (Count Eight)

17

Count Eight alleges that the Defendants actions were in violation of a 2012

18

Consent Judgment. Green Tree argues that Plaintiffs do not have standing to enforce that

19

Consent Judgment and that Green Tree was not a party to that judgment. Plaintiffs

20

concede that Green Tree is not bound by the Consent agreement. Therefore Count Eight

21

is dismissed as to Green Tree. Plaintiffs’ argument about MHA requirements is

22

immaterial because Count Eight does not allege a violation of MHA.

23

H.

Tortious Constructive Fraud (Count Nine)

24

Arizona defines the tort of constructive fraud as “a breach of legal or equitable

25

duty which, irrespective of the moral guilt or intent of the party charged, the law declares

26

fraudulent because of its tendency to deceive others, to violate public or private

27

confidence, or to injure public interests.” Rhoads v. Harvey Publications, Inc., 145 Ariz.

28

142, 148, 700 P.2d 840, 846 (Ct. App. 1984). For the cause of action to arise, “a

-9-

1

relationship, akin to a fiduciary relationship must exist.” McAlister, 829 P.2d at 1261.

2

The requisite relationship approximates “business agency, professional relationship, or

3

family tie.” Rhoads, 700 P.2d at 847. If a “relationship of trust and confidence exists

4

between [the] two parties so that one of them places a peculiar reliance in the

5

trustworthiness of another, the latter is under a duty to make a full and truthful disclosure

6

of all material facts and is liable for misrepresentation or concealment.” Id. at 846–47.

7

Here, Green Tree argues that Count Nine should be dismissed for a lack of

8

particularity and failure to plead detrimental reliance. Plaintiffs do not respond to the

9

Motion to Dismiss as to Claim Nine. Therefore, Claim Nine is dismissed as to Green

10

Tree.

11

I.

Equitable Estoppel and Promissory Estoppel (Counts Ten and Eleven)

12

Arizona defines equitable estoppel as “an affirmative misrepresentation of a

13

present fact or state of facts and detrimental reliance by another thereon.” Tiffany Inc. v.

14

W. M. K. Transit Mix, Inc., 16 Ariz. App. 415, 419, 493 P.2d 1220, 1224 (1972). In

15

Arizona, equitable estoppel “is available only as a defense, while promissory estoppel can

16

be used as a cause of action for damages.” Id. However, Arizona courts have allowed

17

claims based on equitable estoppel to continue as promissory estoppel claims if the

18

plaintiffs adequately alleged the elements of promissory estoppel. Gorman v. Pima Cnty.,

19

230 Ariz. 506, 287 P.3d 800, 804 n.4 (Ct. App. 2012). “The critical distinction between

20

the two is that equitable estoppel refers to reliance on a misrepresentation of some present

21

or past fact, whereas ‘promissory estoppel rests upon a promise to do something in the

22

future.’” Id. (citing Trollope v. Koerner, 106 Ariz. 10, 18, 470 P.2d 91, 99 (1970)).

23

Otherwise, “promissory estoppel includes all elements of equitable estoppel.” Id.

24

Here, the Plaintiffs plead both equitable and promissory estoppel. Under Gorman,

25

the Plaintiffs’ equitable estoppel claim only exists as an affirmative cause of action to the

26

extent that their promissory estoppel theory survives. The question is whether the

27

Plaintiffs have adequately alleged the elements of promissory estoppel. Estoppel as a

28

cause of action contains three elements: “(1) the party to be estopped commits acts

- 10 -

1

inconsistent with a position it later adopts; (2) reliance by the other party; and (3) injury

2

to the latter resulting from the former’s repudiation of its prior conduct.” Id. at 511, 287

3

P.3d at 805.

4

Here, the Plaintiffs allege reliance and injury based on Green Tree’s actions as

5

alleged in the FAC. They also allege reliance and injury based on Green Tree’s promises

6

to comply with Arizona Law. The Plaintiffs allege that they relied on Green Tree’s

7

representation that loan modification and short sale were the only options available when

8

in fact other programs would have helped. They also allege that they relied on Green

9

Tree’s statement that they had to be late on their payments in order to be eligible for any

10

relief. The Plaintiffs have adequately pled reliance and injury based on these promises

11

and actions. Counts Ten and Eleven is not dismissed.

12

J.

Duty of Good Faith and Fair Dealing (Count Twelve)

13

The duty of good faith and fair dealing is implied in every contract. Rawlings v.

14

Apodaca, 151 Ariz. 149, 153, 726 P.2d 565, 569 (1986). That duty prohibits either party

15

from acting “to impair the right of the other to receive the benefits which flow from their

16

agreement or contractual relationship.” Id. “[B]ecause a party may be injured when the

17

other party to a contract manipulates bargaining power to its own advantage, a party may

18

nevertheless breach its duty of good faith without actually breaching an express covenant

19

in the contract.” Ariz. Laborers Local No. 395, 201 Ariz. at 491, 38 P.3d at 29).

20

Here, the Plaintiffs have failed to identify any benefit under the Deed of Trust or

21

other contract that was impaired by Green Tree. They do not identify what contract they

22

are referring to or what provisions were impaired. Plaintiffs only reference loss

23

mitigation and loan modification in terms of government programs and consent decrees

24

that do not involve Green Tree. None of these are contracts between Plaintiffs and Green

25

Tree. The Plaintiffs generally allege that Green Tree made false statements to them

26

regarding the status of their short sale and the availability of other programs for loss

27

mitigation. They have not identified anything in the Deed of Trust or other contract that

28

guarantees them the right to receive truthful information about a short sale process or

- 11 -

1

other loan modification or refinance process. Thus, the Plaintiffs have failed to state a

2

claim that Green Tree breached the duty of good faith and fair dealing. Count Twelve is

3

dismissed as to Green Tree for failing to adequately state a claim.

4

K.

Common Law Fraud (Count Thirteen)

5

The elements for common law fraud are: (1) A representation; (2) its falsity; (3) its

6

materiality; (4) the speaker’s knowledge of its falsity or ignorance of its truth; (5) his

7

intent that it should be acted upon by the person and in the manner reasonably

8

contemplated; (6) the hearer’s ignorance of its falsity; (7) his reliance on its truth; (8) his

9

right to rely thereon; (9) his consequent and proximate injury. See, e.g., Nielson v.

10

Flashberg, 101 Ariz. 335, 338–39, 419 P.2d 514, 517–18 (1966) (internal quotations and

11

citations omitted).

12

The parties have not argued that the common law fraud requirements differ in a

13

significant way from the claims under the CFA. The elements for common law fraud are

14

similar and Green Tree has not argued a different basis for the common law fraud claims

15

to be dismissed. The Common Law Fraud count is not dismissed.

16

IT IS HEREBY ORDERED that Defendant Green Tree Servicing’s Motion to

17

Dismiss First Amended Complaint (Doc. 15) is GRANTED IN PART AND DENIED

18

IN PART. Counts 3, 7, 8, 9, and 12 of the Amended Complaint are dismissed as to Green

19

Tree. Counts 1, 2, 4, 5, 6, 10, 11, and 13 are not dismissed or are only partially dismissed

20

as described herein.

21

Dated this 14th day of July, 2014.

22
23
24
25
26
27
28

- 12 -