Bergdale v. Countrywide Bank FSB et al

Filing 37

ORDER that the 27 Motion to Dismiss filed by the Defendants is granted in part and denied in part. Signed by Judge G Murray Snow on 1/9/2013. (See Order for details.)(LFIG)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Rozann G. Bergdale,

No. CV-12-8057-PCT-GMS

Plaintiff,

10

ORDER

11

vs.

12

Countrywide Bank FSB; Bank of America,
National Association; and John Does,

13

Defendants.

14
15

Pending before the Court is a Motion to Dismiss Second Amended Complaint

16

(Doc. 27) filed by Defendants Countrywide Home Loans, Inc., Bank of America, N.A.,

17

BAC Home Loan Servicing LP, Mortgage Electronic Registration Systems, Inc., and

18

ReconTrust. For the following reasons, the Court grants in part and denies in part the

19

motion.
BACKGROUND

20
21

Plaintiff Rozann Bergdale purchased a home in Yavapai County, Arizona, around

22

October 26, 2007. (Doc. 21 ¶ 14; id., Ex. A at 1-3.)1 To finance this purchase, she

23

obtained a loan of $576,000.00 from Defendant Countrywide Bank. (Id., Ex. A at 1-2.)

24

The parties executed and recorded the Deed of Trust (“DOT”) in the office of the

25
26
27
28

1

The Court takes judicial notice of the DOT and subsequent assignments because
they are documents “whose contents are alleged in a complaint and whose authenticity no
party questions, but which are not physically attached to the [plaintiff's] pleading,”
Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir.2005) (quoting In re Silicon Graphics Inc.
Sec. Litig., 183 F.3d 970, 986 (9th Cir.1999) (alteration in original).

1

Yavapai County Recorder on Oct. 31, 2007. (Id. ¶ 14.) The DOT designates Countrywide

2

as the “Lender,” Fidelity National Title Insurance as the “Trustee,” and Defendant

3

Mortgage Electronic Registration Systems, Inc. (“MERS”) as “the beneficiary under this

4

Security Instrument” and “nominee for Lender and Lender’s successors and assigns.” (Id.

5

Ex. A at 1-2.) Subsequently, Defendant Bank of America acquired Countrywide, and

6

Defendant BAC Home Loan Servicing, a Bank of America subsidiary, began servicing

7

the loan. (Id. ¶¶ 2, 5-6.)

8

Bergdale’s monthly payment, including principal, interest, escrow, and other

9

charges was originally $3,195.50. (Id. ¶ 29.) At some point, Bergdale missed a monthly

10

payment, but she alleges that she made up for that missed payment in various monthly

11

“installments,” totaling $2,500.00. (Id. ¶¶ 30, 37.) In October 2009, Bergdale entered into

12

a three-month “Trial Modification Program” with BAC that temporarily reduced her

13

monthly payment to $2,325.00. (Id. ¶ 31.) She negotiated with BAC for her first trial

14

program payment to occur on November 17, 2009. (Id.) Bergdale contacted BAC on

15

November 13 to determine whether check she sent for the first trial payment had posted.

16

(Id. ¶ 34.) The BAC representative could not see the payment and recommended that

17

Bergdale send another check. (Id.) The BAC representative assured her that any previous

18

check she had sent for the November payment, if found, would be cancelled to avoid

19

duplicate payments. (Id.)

20

On November 23, 2009, BAC delivered a Notice of Intent to Accelerate that

21

claimed Bergdale owed $9,007.80 on the loan and threatened to institute foreclosure if

22

she did not cure. (Id. ¶ 36.) Bergdale alleges that “NO PAYMENT WAS LATE AT

23

ALL”, and claims she was current on her payments. (Id. ¶ 37.) She reached out to BAC

24

and was informed that her balance was now $4,650.00 because BAC had applied two

25

payments of $2,325.00 to her account. (Id. ¶¶ 38-39.) Bergdale filed a letter of dispute

26

asserting that BAC had posted the second November payment in error and requesting

27

reimbursement for the overdraft fees she incurred as a result of the second November

28

payment. (Id. ¶ 40.) After Bergdale sent her letter of dispute, BAC told her that she
-2-

1

actually owed $4,372.80 on her loan. (Id.) Subsequently, she received a second Notice of

2

Intent to Accelerate that stated she owed $4,372.00, but was then told on a phone call that

3

she actually owed $7,568.30. (Id. ¶¶ 40-41.) The dispute over what Bergdale owed

4

stretched into December. (Id. ¶¶ 43-45, 47.) There was also a dispute between Bergdale

5

and BAC as to whether she had been paying property taxes. (Id. ¶¶ 33, 41-42.)

6

Throughout the back-and-forth with BAC, Bergdale denied any delinquency. (Id.)

7

Outside of phone calls, though, no specific action was taken by either party at this time.

8

Bergdale made six months of payments in the amount specified in the previous

9

three-month trial program. (Id. ¶¶ 48-49.) The following November, BAC and Bergdale

10

agreed to a permanent loan modification. (Doc. 21-5, Ex. E at 1.)2 Bergdale agreed that

11

she owed $604,324.81, an addition of about $25,000 to the principal. (Id.; id. ¶ 50.) The

12

parties also agreed that, beginning December 1, 2010, Bergdale’s monthly principal and

13

interest payment would be $2,163.39 until December 2013, when it would increase.

14

(Doc. 21-5, Ex. E at 3.)

15

When Bergdale received her statement on December 20, it offered three payment

16

choices for the month of January: (1) An interest only payment of $2,395.39, consisting

17

of a $1,510.81 interest payment plus $884.58 of “outstanding late charges” and “amounts

18

collected for escrow items such as taxes and insurance premiums”; (2) a 15-year

19

Amortized Payment Choice of $5,916.17, consisting of a principal and interest payment

20

of $5,031.59 plus charges; and (3) an Amortized Payment Choice of $3,047.97,

21

consisting of a $2,163.39 principal and interest payment plus charges. (Doc. 21-6, Ex. F

22

at 3.)3 Bergdale selected the interest-only payment and made the $2,395.39 payment for

23

both January and February. (Id. ¶¶ 52-53.)

24

She received a letter informing her that her March payment would increase to

25

offset the interest-only payments she made for both January and February. (Id. ¶ 54.) The

26
27

2

The Court takes judicial notice of the Loan Modification Agreement.

28

3

The Court likewise takes judicial notice of the December 20 statement.
-3-

1

SAC does not allege what the revised payment was in March or anytime subsequent to

2

that notice. Bergdale did, however, send a check in April for $3,156.14. (Id.) A Notice of

3

Intent to Accelerate arrived on April 18, 2011, that claimed Bergdale owed $3,808.71.

4

(Id. ¶ 55.)

5

On October 18, 2011, MERS assigned all of its beneficial interest under the DOT

6

to Bank of America. (Doc. 21-2, Ex. B.) Bank of America then exercised its power as

7

beneficiary to appoint ReconTrust Company as the successor trustee on November 29,

8

2011. (Doc. 21-3, Ex. C.) That same day, ReconTrust filed a Notice of Trustee’s Sale to

9

take place on March 7, 2012. (Doc. 21-4, Ex. D.) Bergdale received a copy of this Notice

10

of Trustee’s Sale. (Id. ¶ 56.) No sale appears to have taken place as of yet.

11

Bergdale filed a complaint against the Defendants in Arizona Superior Court on

12

Mar. 2, 2012. (Doc. 1, Ex. 1), and the action was subsequently removed to this Court

13

(Doc. 1). The Court granted Defendants’ Motion to Dismiss the First Amended

14

Complaint on September 18, 2012 (Doc. 20), giving Bergdale a “very limited opportunity

15

to amend.” She filed her SAC on October 17, 2012, and all Defendants filed the current

16

Motion to Dismiss on November 5, 2012. (Doc. 27.)

17

DISCUSSION

18

I.

LEGAL STANDARD

19

To survive dismissal for failure to state a claim pursuant to Federal Rule of Civil

20

Procedure 12(b)(6), a complaint must contain more than “labels and conclusions” or a

21

“formulaic recitation of the elements of a cause of action”; it must contain factual

22

allegations sufficient to “raise a right to relief above the speculative level.” Bell Atl.

23

Corp. v. Twombly, 550 U.S. 544, 555 (2007). While “a complaint need not contain

24

detailed factual allegations . . . it must plead ‘enough facts to state a claim to relief that is

25

plausible on its face.’” Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1022 (9th Cir.

26

2008) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the

27

plaintiff pleads factual content that allows the court to draw the reasonable inference that

28

the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
-4-

1

(2009) (citing Twombly, 550 U.S. at 556). The plausibility standard “asks for more than a

2

sheer possibility that a defendant has acted unlawfully.” Id. When a complaint does not

3

“permit the court to infer more than the mere possibility of misconduct, the complaint has

4

alleged—but it has not shown—that the pleader is entitled to relief.” Id. at 679 (internal

5

quotation omitted).

6

When analyzing a complaint for failure to state a claim under Rule 12(b)(6), “[a]ll

7

allegations of material fact are taken as true and construed in the light most favorable to

8

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

9

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

10

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

11

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

12

1998).

13

II.

ANALYSIS

14

Bergdale’s SAC contains five counts against the Defendants: (1) Consumer Fraud,

15

(2) Quiet Title, (3) Breach of the Duty of Good Faith and Fair Dealing, (4) Negligent

16

Performance of an Undertaking, and (5) Violations of the Fair Debt Collection Practices

17

Act. (Doc. 21 ¶¶ 93-180.) Bergdale requests declaratory, injunctive, and monetary relief.

18

For the reasons discussed below, Bergdale has stated a claim against Bank of America

19

and BAC for consumer fraud and breach of the duty of good faith and fair dealing. She

20

has failed to state a claim with regard to the remaining Counts and Defendants.

21

A.

Consumer Fraud

22

Bergdale alleges that Bank of America and BAC violated Arizona’s Consumer

23

Fraud Act (“CFA”), A.R.S. § 44-1522A, which prohibits the use of “any deception,

24

deceptive act or practice, fraud, false pretense, false promise, misrepresentation, or

25

concealment, suppression or omission of any material fact with intent that others rely

26

upon such concealment, suppression or omission, in connection with the sale or

27

advertisement of any merchandise.” “To succeed on a claim of consumer fraud, a

28

plaintiff must show a false promise or misrepresentation made in connection with the sale
-5-

1

or advertisement of merchandise and consequent and proximate injury resulting from the

2

promise.” Kuehn v. Stanley, 208 Ariz. 124, 129, 91 P.3d 346, 351 (Ct. App. 2004). A

3

plaintiff must also allege reliance—though it need not be reasonable—on the

4

misrepresentations. Id. As discussed in the previous Order, the CFA applies to the

5

origination or modification of a loan. (Doc. 20 at 8-9.)

6

Because Bergdale is bringing a fraud claim, she must “state with particularity the

7

circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). “Rule 9 requires

8

allegations of fraud be pled with particularity, even if they are brought under the [CFA].”

9

Silving v. Wells Fargo Bank, NA, 800 F. Supp. 2d 1055, 1075 (D. Ariz. 2011); Vess v.

10

Ciba–Geigy Corp. USA, 317 F.3d 1097, 1103 (9th Cir. 2003) (“It is established law, in

11

this circuit and elsewhere, that Rule 9(b)’s particularity requirement applies to state-law

12

causes of action. While a federal court will examine state law to determine whether the

13

elements of fraud have been pled sufficiently to state a cause of action, the Rule 9(b)

14

requirement that the circumstances of the fraud must be stated with particularity is a

15

federally imposed rule.”) (internal quotation marks and citation omitted, alterations

16

removed).

17

1.

Lack of Authority to Foreclose

18

Part of the CFA claim rests on the theory that that Bank of America and BAC

19

“engaged in deceptive acts or practices in servicing of Plaintiff’s loan by representing

20

that it had authority to enforce her Note and to foreclose on behalf of the claimed Trust,

21

when it had knowingly failed to properly transfer the interest in the Note to the Trust.”

22

(Doc. 21 ¶ 94.) The Court has previously recognized that the documents attached to the

23

SAC (whose authenticity Bergdale does not contest) refute the claim that Bank of

24

America lacked authority to foreclose. (Doc. 20 at 5-7.) As Bergdale herself alleges,

25

Bank of America acquired Countrywide, her original lender. (Doc. 21 ¶ 2.) Bank of

26

America therefore succeeded to Countrywide’s interest in the Note, and then became the

27

beneficiary under the DOT via assignment. Bergdale attempts to challenge the validity of

28

these transactions by once again mounting sweeping arguments against the MERS
-6-

1

system. The Court need not cover the same ground, except to note again that there is no

2

“legal support for the proposition that the MERS system of securitization is so inherently

3

defective so as to render every MERS deed of trust completely unenforceable and

4

unassignable.” In re Mortgage Elec. Registration Sys. (MERS) Litig., MDL 09-2119-JAT,

5

2011 WL 4550189 at *4 (D. Ariz. Oct. 3, 2011); see also Hogan v. Wash. Mutual Bank,

6

N.A., ___ Ariz. ___, ___, 277 P.3d 781, 783 (2012); Cervantes v. Countrywide Home

7

Loans, Inc., 656 F.3d 1034, 1042 (9th Cir. 2011) (“None of their allegations indicate that

8

the plaintiffs were misinformed about MERS’s role as a beneficiary, or the possibility

9

that their loans would be resold and tracked through the MERS system . . . . By signing

10

the deeds of trust, the plaintiffs agreed to the terms and were on notice of the contents.”).

11

Bergdale has not shown that statements of authority at the origination and modification

12

stages of the loan were fraudulent or misrepresentations. Bergdale’s consumer fraud

13

claim fails to the extent it relies on these discredited theories.

14

2.

Practices in Servicing Loan

15

Another part of Bergdale’s claim is based on allegations that Bank of America and

16

BAC engaged in deceptive practices while servicing her loan. (Id. ¶ 96.) Bergdale

17

complains of the following actions of Bank of America and BAC in November and

18

December 2009: threatening foreclosure even though Bergdale was making timely

19

payments, misapplying her payments, misrepresenting amounts owed, and declaring a

20

false default. (Id.) Specifically, over the course of two weeks in November 2009,

21

different BAC representatives told Bergdale that she owed anywhere from $4,650.00 to

22

$4,372.80 to $4,372.00 to $7,568.30 to $7,712.30. (Id. ¶¶ 36-48). Throughout this

23

process, Bergdale received notices of intent to accelerate. (Id.) Bergdale maintains that

24

she was not in default at the time. (Id. ¶¶ 37, 40, 42.)

25

Taking the allegations of the SAC as true at this stage, Bergdale does not have a

26

viable CFA claim. Assuming the CFA applies to servicing activity, Bergdale failed to

27

allege detrimental reliance on the alleged misrepresentations in November and December

28

2009. See Kuehn, 208 Ariz. at 129. Bergdale continued to pay the $2,325.00 trial
-7-

1

payment throughout this period—there is not allegation of a material change in position

2

or additional, unwarranted payments made as a result of Bank of America and BAC’s

3

alleged false claims. (Id. ¶¶ 48-49.) Bergdale attempts to connect the Fall 2009 activity to

4

the Final Loan Modification Agreement in November of 2010 (id. ¶¶ 50-51, 97-100), but

5

she does not allege how those statements influenced the modification agreement, or how

6

she was in any way damaged by them, other than to say, apparently, that the statements

7

reflected that she held unequal bargaining power. Such allegations are insufficient under

8

Rule 9’s heightened pleading requirement. The alleged misrepresentations of November

9

and December 2009 regarding the amount owed cannot support a claim under the CFA.

10

3.

Double-posting November 2009 Payment

11

Bergdale also claims she was defrauded when the Defendants double-posted her

12

November 2009 trial payment. She alleges that she had made one payment in mid-

13

November of $2,325.00 that did not show up in BAC’s computers. (Id. ¶ 34.) A BAC

14

representative then asked her to submit another payment and stated that her previous

15

payment, if it came through, would be cancelled. (Id.) Instead, BAC posted both

16

payments, despite Bergdale’s alleged lack of default at the time. (Id. ¶¶ 38-39.)

17

Defendants’ only argument for dismissing this claim is that there was no loss

18

because the trial program required three monthly payments and Bergdale’s account was

19

credited for both. On the contrary, assuming application of the CFA to these claims,

20

Bergdale has alleged a misrepresentation, reliance, and consequent damage. BAC

21

allegedly misrepresented that it would apply only one payment, when it actually applied

22

two. She relied on that misrepresentation and submitted a second payment. When both

23

payments were applied, she suffered overdraft charges and was unable to pay her bills.

24

(Id. ¶ 39.) BAC’s solitary argument to the contrary is unpersuasive, and Bergdale may

25

proceed with a CFA claim on this theory.

26

4.

Loan Modification

27

Bergdale also alleges that Bank of America and BAC violated the CFA by

28

misrepresenting the terms of the loan modification. (Id. ¶ 96.) Under the final
-8-

1

modification, Bergdale’s principal and interest payment was set at $2,163.39. (Doc. 21-5,

2

Ex. E at 3.) Her December 2010 statement, however, offered three payment choices, all

3

of which differed from the $2,163.39 specified in the final modification: (1) $2,395.39

4

(interest-only), (2) $5,916.17 (15-year amortized payment), and (3) $3,047.97 (amortized

5

payment). (Doc. 21-6, Ex. F at 3.) Nevertheless, the third choice—the “Amortized

6

Payment Choice”—references the principal and interest payment agreed upon in the

7

modification: $2,163.39. (Id.) The confusion arises because the “Total Payment Amount”

8

included certain “Outstanding Late Charges” and an escrow payment. (Id.) As Bank of

9

America and BAC point out, nowhere in the Final Modification Agreement does Bank of

10

America represent that Bergdale’s total payment would be $2,163.39. Indeed, the DOT

11

specifies that escrow items and late charges can be included in the total payment. (Doc.

12

21-1, Ex. A ¶ 1.)

13

Bergdale alleges, however, that her total payment, including escrow, should have

14

been “approximately $2,450/month”, several hundred dollars less than the amount

15

appearing on her December statement. (Doc. 21 ¶ 51.)4 Bergdale alleges that BANK OF

16

AMERICA and BAC made numerous miscalculations regarding the required escrow

17

payment, and those miscalculations could have resulted in requiring her to pay more for

18

escrow than she needed to. (Id. ¶¶ 33, 42-43.) Here, therefore, Bergdale has alleged both

19

a misrepresentation—claiming that she owed more for escrow than she actually did—and

20

detrimental reliance—making the wrong payment for two months, which led to increased

21

payments she was unable to afford. (Id. ¶ 55.) Bank of America and BAC’s arguments to

22

the contrary go to the question of the amount of the escrow payment, a factual issue

23

inappropriate for consideration on a motion to dismiss.

24

In short, Bergdale’s SAC alleges a viable CFA claim with respect to the claims of

25

double payment and misrepresenting the amount owed under the Final Loan

26

Modification. The remaining allegations of fraud are dismissed.

27
4

28

The statement references an escrow balance of $1,617.30, but not how much was
included in a given payment. (Doc. 21-6, Ex. F at 3.)
-9-

1

C.

Quiet Title

2

Bergdale reasserts her quiet title claim against the Defendants under A.R.S. § 12-

3

1101, which states that “[a]n action to determine and quiet title to real property may be

4

brought by anyone having or claiming an interest therein, whether in or out of possession,

5

against any person or the state when such person or the state claims an estate or interest

6

in the real property which is adverse to the party bringing the action.” Most of Bergdale’s

7

supporting allegations are based on the theory that Defendants lack authority to initiate

8

foreclosure proceedings because they are unable to produce the note at foreclosure or that

9

the documents purporting to transfer the interest were false. The Court’s previous Order

10

rejected the grounds on which Bergdale is claiming a lack of authority. (Doc. 20 at 6-7.)

11

Once again, Bergdale’s claim is really a challenge to the MERS system surrounding

12

securitization of mortgages. The Defendants are not required to record changes in

13

ownership of the note between MERS members within the MERS system as the

14

securitization process unfolds. See Cervantes, 656 F.3d at 1038-40. The remaining

15

allegations set forth by Bergdale address the loan servicing and modification process and

16

cannot support a quiet title claim. That claim is dismissed.

17

D.

Breach of Good Faith and Fair Dealing

18

Bergdale also contends that Bank of America and BAC breached their duty of

19

good faith and fair dealing. (Doc. 21 ¶¶ 125-45.) “Arizona law implies a covenant of

20

good faith and fair dealing in every contract.” Wells Fargo Bank v. Ariz. Laborers,

21

Teamsters & Cement Masons Local No. 395 Pension Trust Fund, 201 Ariz. 474, 490, 38

22

P.3d 12, 28 (2002). “The implied covenant of good faith and fair dealing prohibits a party

23

from doing anything to prevent other parties to the contract from receiving the benefits

24

and entitlements of the agreement.” Id.

25

Bergdale’s good faith claim sounds in both tort and contract. She asserts that Bank

26

of America and BAC, “exercising the threat of foreclosure at all times, used a contract

27

negotiation to manipulate bargaining power to their own advantage”. (Doc. 21 ¶ 127.)

28

Beyond these conclusory statements, however, Bergdale has offered no supporting
- 10 -

1

allegations. She does not describe how she was injured, other than general assertions that

2

she was harmed by entering into a modification agreement that was less than ideal. (Id. ¶

3

145.) Moreover, “[a] party may bring an action in tort claiming damages for breach of the

4

implied covenant of good faith . . . only where there is a ‘special relationship between the

5

parties arising from elements of public interest, adhesion, and fiduciary responsibility.’”

6

Ariz. Laborers, 201 Ariz. at 491 (quoting Burkons v. Ticor Title Ins. Co. of Cal., 168

7

Ariz. 345, 355, 813 P.2d 710, 720 (1991)). Bergdale has not pled the existence of a such

8

a special relationship arising from “elements of public interest, adhesion, and fiduciary

9

responsibility.” Burkons, 168 Ariz. at 355. She cannot assert a tort claim.

10

On the other hand, Bergdale has stated a claim under a contract theory. “When the

11

remedy for breach of the covenant sounds in contract, it is not necessary for the

12

complaining party to establish a special relationship.” Ariz. Laborers, 201 Ariz. at 491.

13

She contends that the Defendants “did not honor the terms of the Final Loan

14

Modification” by issuing the December 2010 statement that required escrow payments

15

allegedly in excess of what she owed, as discussed above. (Doc. 21 ¶ 128.) That

16

allegation, taken to be true, states a claim that Defendants breached the modification

17

agreement. Consequently, Bergdale’s good faith claim survives on this basis alone.

18

The remaining allegations are a list of apparent practices of the Defendants. (Id. ¶¶

19

132-144.) Bergdale does not allege how she was harmed by some of these practices and

20

cites inapplicable, non-binding settlement agreements for others. As for the claims of

21

misapplication of payments, discussed above, simple negligence does not amount to a

22

breach of the duty of good faith. See Ariz. Laborers, 201 Ariz. at 491. Bergdale may,

23

however, advance her claim on the theory that Bank of America and BAC did not honor

24

the terms of the Final Loan Modification.

25

E.

Negligent Performance of Undertaking

26

Bergdale’s fourth claim for relief is for negligent performance of undertaking.

27

(Doc. 10 ¶¶ 165-80.) This “Good Samaritan” doctrine allows recovery from those who

28

undertake “to render services to another which he should recognize as necessary for the
- 11 -

1

protection of the other's person or things” but fail to exercise reasonable care in the

2

performance of the undertaking. Lloyd v. State Farm Mut. Auto. Ins. Co., 176 Ariz. 247,

3

250, 860 P.2d 1300, 1303 (Ct. App. 1992); Restatement (Second) of Torts § 323. The

4

Good Samaritan doctrine applies to allegations of both physical and economic harm. Id.

5

Liability attaches when the party’s “failure to exercise [reasonable] care increases the risk

6

of [physical or economic harm] or [t]he harm is suffered because of the other’s reliance

7

upon the undertaking.” Id.

8

Bergdale’s chief accusation is that Defendants “encourage[d] her to make

9

payments under the Trial Modification Plan so she could obtain a similar Permanent

10

Modification on the same terms.” (Doc. 21 ¶ 152.) Her payment under the permanent

11

modification, however, differed from the terms of the trial modification. Bergdale does

12

not allege how the Defendants failed to exercise reasonable care in crafting a

13

modification for her. Indeed, the fact that she received a modification indicates that

14

Defendants sought to help Bergdale avoid foreclosure. The remaining allegations go to

15

the breach of contract claim considered earlier. The Court does not see how those claims

16

fit within the parameters of the Good Samaritan doctrine. Therefore, Bergdale’s Good

17

Samaritan claim is dismissed.

18

F.

Fair Debt Collection Practices Act

19

Bergdale alleges that the Defendants violated the Fair Debt Collection Practices

20

Act (“FDCPA”), 15 U.S.C. § 1692, et. seq (2006). But the Court dismissed this claim as a

21

matter of law in the prior order, and Bergdale was not at leave to bring it again. (Doc. 20

22

at 14) (“Any count that has been dismissed as a matter of law, should not be amended.”)

23

As the Court previously held, the FDCPA does not apply to any of the alleged actions by

24

the Defendants because mortgagees and their beneficiaries are not debt collectors and a

25

non-judicial foreclosure proceeding is not the collection of a debt under the FDCPA. See

26

Mansour v. Cal-W. Reconveyance Corp., 618 F. Supp. 2d 1178, 1182 (D. Ariz. 2009);

27

Diessner v. Mortgage Elec. Registration Sys., 618 F. Supp. 2d 1184, 1188-89 (D. Ariz.

28

2009) aff'd sub nom. Diessner v. Mortgage Elec. Registration Sys., Inc., 384 F. App'x 609
- 12 -

1
2

(9th Cir. 2010). Bergdale’s FDCPA claim is also dismissed.
CONCLUSION

3

Two of Bergdale’s claims survive. She may proceed on a theory that BAC and

4

BANK OF AMERICA violated the CFA and breached their duty of good faith by (1)

5

double posting her November 2009 trial modification payment and (2) offering her

6

materially different terms in the December 2010 invoice than were required by the Final

7

Loan Modification. The remainder of the SAC fails to state a claim as a matter of law,

8

and the remaining Defendants are dismissed.

9

IT IS HEREBY ORDERED that the Motion to Dismiss filed by the Defendants

10

(Doc. 27) is granted in part and denied in part.

11

Dated this 9th day of January, 2013.

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 13 -