James P. Barajas v. Countrywide Home Loans, Inc. et al

Filing 20

ORDER by Judge Dean D. Pregerson: granting 13 defendants Countrywide Home Loans, Inc., BAC Home Loans Servicing, LP, and Mortgage Electronic RegistrationSystems, Inc.). Motion to Dismiss as to all claims with leave to amend. Plaintiff has 20 days from the date of this order to file a Second Amended Complaint. Failure to respond to the Court's Order may result in the dismissal of the action. (lc)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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JAMES P. BARAJAS,

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Plaintiff,

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v.
COUNTRYWIDE HOME LOANS,
INC.; B ANK OF AMERICA, NA;
MORTGAGE ELECTRONIC
REGISTRATIONS SYSTEMS, INC.,

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Defendants.
___________________________

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Case No. CV 10-07961 DDP (AGRx)
ORDER GRANTING DEFENDANTS’ MOTION
TO DISMISS
[Motion filed on 3/28/11]

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Presently before the court is the Motion to Dismiss filed by

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defendants Countrywide Home Loans, Inc. (“Countrywide”), BAC Home

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Loans Servicing, LP (“BAC”), and Mortgage Electronic Registration

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Systems, Inc. (“MERS”).

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papers and heard oral agrument, the grants the motion and adopts

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the following order.

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I.

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Having considered the parties’ moving

Background
In 2007, Plaintiff obtained a loan from defendant Countrywide

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and purchased real property at 6847 Thornlake Avenue, Whittier,

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California 90606.

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Plaintiff executed a Promissory Note in favor of Countrywide and

(First Amended Complaint (“FAC”) ¶¶ 14-15).

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made a Trust Deed listing Countrywide as “Lender” and MERS as

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“nominee for lender” and “beneficiary.”1

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Plaintiff later learned that BAC was the successor in interest to

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the Note and servicer of Plaintiff’s loan.

(FAC ¶¶ 18- 19).

(FAC ¶¶ 19, 92).

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Sometime in 2008, Plaintiff began experiencing economic

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difficulties and sough to renegotiate the terms of his loan.

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¶¶ 90-91).

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believe that he “would likely qualify” for a loan modification.

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(FAC ¶ 94).

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Plaintiff alleges that BAC representatives led him to

Plaintiff’s requests for a loan modification were

ultimately denied.

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(FAC

(FAC ¶¶ 96, 99).

Plaintiff alleges that he does now know who currently owns his

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note.

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“prevent the improper taking and/or foreclosure of his family home”

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and “to establish whom ‘owns the debt’ secured by the Plaintiff’s

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Trust Deed and who has the right to notice a default and

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foreclose.”

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(collectively, the “foreclosure claims”), Plaintiff seeks (1) a

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declaration that no defendant has authority to foreclosure, (2) to

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quiet title against Countrywide, and (3) damages for BAC’s alleged

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breach of the implied covenant of good faith and fair dealing in

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connection with its acquisition of Plaintiff’s debt and authority

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to foreclose.

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the “misrepresentation claims”) allege misrepresentation against

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BAC in connection with Plaintiff’s attempts to obtain a load

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modification.

(FAC ¶ 64).

Through this action, Plaintiff seeks to

(FAC ¶ 4).

In his First, Fourth, and Fifth claims

Plaintiff’s Second and Third Claims (collectively,

Defendants now move to dismiss all claims.

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Plaintiff has not attached any exhibits to his First Amended
Complaint or Opposition to Defendants’ Motion for Summary Judgment.
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II.

Discussion

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A.

Wrongful Foreclosure Claims

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Defendants argue that Plaintiff’s foreclosure claims must be

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dismissed for failure to allege ability to tender.

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The court agrees.

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loan, and a foreclosure is either pending or has taken place, the

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debtor must allege a credible tender of the amount of the secured

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debt to maintain any cause of action for wrongful foreclosure.”

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Alicea v. GE Money Bank, 2009 WL 2136969 *3 (N.D. Cal. 2009).

(Motion at 3).

“When a debtor is in default of a home mortgage

The

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tender requirement spares courts from being called upon to “order a

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useless act performed” in cases where plaintiffs would be unable,

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even under proper sale procedures, to redeem a property.

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HAB 01 v. E & G Investments, Ltd., 207 Cal.App.3d 1018, 1021-22

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(1989).

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FPCI RE-

Plaintiff correctly points out that district courts need not

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dismiss all foreclosure cases as a matter of law for failure to

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plead ability to tender.

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court has discretion to apply the tender requirement where

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plaintiffs seek to rescind a loan under the Truth in Lending Act,

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15 U.S.C. § 1625(b).

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1171 (9th Cir. 2003); Del Valle v. Mortgage Bank of Col., 2010 WL

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1813505 at *6, 9 (E.D. Cal. 2010).2

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(Opposition at 5).

For example, a trial

Yamamoto v. Bank of New York, 329 F.3d 1167,

Nor is tender required when plaintiffs bring suit under

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California Civil Code section 2923.5.

Das v. WMC Mortgage Corp.,

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2010 WL 4393885 *2 (N.D. Cal. 2010).

Section 2923.5 requires loan

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Notably, both the Yamamoto and Del Valle courts did apply
the tender requirement. Yamamoto, 329 F.3d at 1173; Del Valle,
2010 WL 1813505 *12.
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holders to contact borrowers to “assess the borrower’s financial

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situation and explore options for the borrower to avoid

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foreclosure.”3

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observed, voiding a foreclosure for failure to comply with Section

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2923.5 would not be futile, even absent ability to tender, because

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the very purpose of Section 2923.5 is to facilitate loan

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modifications, avoid foreclosure, and thus obviate the need for the

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plaintiff to redeem the property.

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Cal. Civ. Code § 2923.5(a)(2).

As the Das court

Das, 2010 WL 4393885 * 3.

Here, however, Plaintiff has not raised a California Civil

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Code section 2923.5 claim or a TILA claim.

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contends in his opposition that he is “not seeking to set aside the

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foreclosure sale,” that assertion is flatly contradicted by

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Plaintiff’s complaint, which states that Plaintiff seeks to

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“prevent the improper taking and/or foreclosure of his family

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home.”

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Plaintiff must allege ability to tender.

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First, Fourth, and Fifth claims are dismissed, with leave to amend.

(FAC ¶ 4).

Though Plaintiff

To maintain his wrongful foreclosure action,
Accordingly, Plaintiff’s

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B.

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Defendants argue that Plaintiff’s misrepresentation claims

Misrepresentation Claims

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should be dismissed for failure to comply with Federal Rule of

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Civil Procedure 9(b).

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a complaint alleging misrepresentation must state the time, place,

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and content of misrepresentations, as well as the misrepresenting

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parties.

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2010).

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defendants notice of the particular misconduct so that they can

The court agrees.

To comply with Rule 9(b),

Sanford v. MemberWorks, Inc., 625 F.3d 550, 558 (9th Cir.

The complaint must be sufficiently specific “to give

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Section 2923.5 became effective January 1, 2010.
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defend against the charge.”

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citation omitted).

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Id. (quotation, alteration, and

Plaintiff does not plead his misrepresentation claims with

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sufficient detail.

Plaintiff alleges that “[i]n or about 2008" an

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unknown representative of BAC told Plaintiff he “likely qualified

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for a loan modification.”

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was approved for a trial modification, but that ultimately his

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modification request was denied.

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Plaintiff that he “might be eligible” for a modification, then

(FAC ¶ 93).

Plaintiff alleges that he

(FAC ¶¶ 95-96).

BAC later told

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again denied his request.

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BAC provided false information (FAC ¶ 134), but does not specify

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which of BAC’s statements were false.

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provides no information about the size or terms of his loan, let

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alone payment history, while making bare assertions that BAC never

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intended to grant Plaintiff a loan modification .

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Plaintiff’s allegations are not sufficiently particular to satisfy

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Rule 9(b), and are therefore dismissed with leave to amend.

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III.

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(FAC ¶ 98-99).

Plaintiff alleges that

Plaintiff’s complaint

(FAC ¶ 123).

Conclusion
For the reasons stated above, Defendants’ Motion to Dismiss is

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granted with respect to all claims, with leave to amend.

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Therefore, the plaintiff has 20 days from the date of this order to

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file a Second Amended Complaint.

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Order may result in the dismissal of the action.

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IT IS SO ORDERED.

Failure to respond to the Court's

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Dated: May 24, 2011
DEAN D. PREGERSON
United States District Judge

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