Annette Britton Cordero v. Bank of America NA et al

Filing 20

ORDER by Judge Dean D. Pregerson: granting 9 defendant Bank of Americas Motion to Dismiss. Plaintiffs Sixth, Eighth, Ninth, and Tenth Causes of Action are dismissed, with leave to amend. All other causes of action are dismissed with prejudice. Any amended complaint shall be manually filed within twenty days of the date of this order. (lc). Modified on 2/14/2013 .(lc).

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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ANNETTE BRITTON CORDERO,

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Plaintiff,

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v.
BANK OF AMERICA N.A., As
Successor By Merger to BAC
HOME LOANS SERVICING, LP,
f/k/a COUNTRYWIDE HOME LOANS
SERVICING, LP,

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Case No. CV 11-08921 DDP (MRWx)
ORDER GRANTING DEFENDANT’S MOTION
TO DISMISS

[Dkt. No. 9]

Defendants.
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Presently before the court is Defendant Bank of America’s

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Motion to Dismiss.

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parties, the court grants the motion and adopts the following

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order.

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I.

Having considered the submissions of the

Background

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On March 15, 2006, Angela Britton Del Rio (Ms. Del Rio) and

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her late husband executed a $650,000 promissory note in favor of

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Instant Capital Funding Group, Inc. for the purchase of property

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at 17031 Paulette Place, Granada Hills, California.

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Amended Complaint ¶1.)

(First

The loan was secured by a Deed of Trust

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listing

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as beneficiary.

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Ms. Del Rio, alleges that the loan was later transferred and

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securitized.1

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executed an Assignment (“the Assignment”) of all beneficial

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interest in the Deed to Defendant’s predecessor in interest.

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¶ 40.)

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Flor Valerio on October 6.

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Mortgage Electronic Registration Systems, Inc. (“MERS”)
(Id., Ex. F.)

(FAC ¶¶ 17, 21.)

Plaintiff, as Attorney in Fact for

On September 22, 2010, MERS

(FAC

The Assignment was recorded by MERS Assistant Secretary
(Id.)

On September 24, 2010, Defendant’s agent recorded a Notice of

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default against Plaintiff’s property.

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agent recorded a Notice of Trustee’s Sale on July 29, 2011.

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Plaintiff’s First Amended Complaint alleges that the September 22

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Assignment of her note and Deed to Defendant was void, and that

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the Notice of Default and Notice of Trustee’s Sale are therefore

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deficient.

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(FAC ¶ 41.)

Defendant’s

(FAC ¶ 30.)

The FAC alleges ten causes of action for declaratory relief,

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quasi contract, violations of the Fair Debt Collection Practices

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Act (“FDCPA”), Truth in Lending Act (“TILA”), and Real Estate

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Settlement Procedures Act (“RESPA”), an accounting, breach of

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contract, breach of the implied covenant of good faith and fair

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dealing, unfair business practices, and violation of California

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Civil Code Sections 2923.5 and 2924.

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dismiss the FAC in its entirety.

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II.

Defendant now moves to

Legal Standard

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Hereinafter, the court refers to Plaintiff and Ms. Del Rio
interchangeably, with the exception of Section III(D), infra.
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A complaint will survive a motion to dismiss when it contains

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“sufficient factual matter, accepted as true, to state a claim to

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relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.

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662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

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570 (2007)).

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must “accept as true all allegations of material fact and must

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construe those facts in the light most favorable to the

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plaintiff.” Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000).

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Although a complaint need not include “detailed factual

When considering a Rule 12(b)(6) motion, a court

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allegations,” it must offer “more than an unadorned, the-

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defendant-unlawfully-harmed-me accusation.”

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678.

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a statement of a legal conclusion “are not entitled to the

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assumption of truth.” Id. at 679.

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merely offers “labels and conclusions,” a “formulaic recitation of

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the elements,” or “naked assertions” will not be sufficient to

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state a claim upon which relief can be granted.

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(citations and internal quotation marks omitted).

Iqbal, 556 U.S. at

Conclusory allegations or allegations that are no more than

In other words, a pleading that

Id. at 678

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“When there are well-pleaded factual allegations, a court

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should assume their veracity and then determine whether they

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plausibly give rise to an entitlement of relief.” Id. at 679.

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Plaintiffs must allege “plausible grounds to infer” that their

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claims rise “above the speculative level.” Twombly, 550 U.S. at

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555. “Determining whether a complaint states a plausible claim for

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relief” is a “context-specific task that requires the reviewing

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court to draw on its judicial experience and common sense.”

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Iqbal, 556 U.S. at 679.

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///
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III. Discussion

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A.

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Quasi-Contract

Plaintiff’s cause of action for quasi-contract is premised

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upon the allegation that Defendant was not entitled to receive

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Plaintiff’s loan payments because the Assignment was invalid.

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(FAC ¶¶ 66-69.)

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correct that Bank of America lacks a beneficial interest in her

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Deed, Defendant was entitled to collect payments as the servicer

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of Plaintiff’s loan.

Defendant argues that even if Plaintiff is

(Mot. at 7; Reply at 12-13.)

Plaintiff’s

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opposition focuses solely on Defendant’s lack of beneficial

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interest, without addressing the loan servicer argument.

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Furthermore, the FAC itself alleges that Defendant is Plaintiff’s

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loan servicer, a fact upon which certain of other causes of action

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(i.e. RESPA violation) depend.

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claim for quasi contract is dismissed.

(FAC ¶¶ 110-117.)

Plaintiff’s

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B.

FDCPA

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The FDCPA seeks to curtail abusive collection practices by

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debt collectors.

15 U.S.C. § 1692.

The term “debt collector,”

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and thus the FDCPA, does not apply, however, to mortgage holders,

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mortgage loan servicers, or foreclosure activities.

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Greenpoint Mortgage Funding, Inc., No. CIV S-10-0952 LKK DAD, 2010

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WL 4983468 at *7 (E.D. Cal. Dec. 2, 2010); Lobato v. Acqura Loan

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Servs., No. 11cv2601 WDH, 2012 WL 607624 at *5 (S.D. Cal. Feb. 23,

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2012).

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beneficiary of the Deed, it is Plaintiff’s loan servicer.

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Plaintiff’s FDCPA claim is, therefore, dismissed.

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///

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Usher v.

As discussed above, even if Bank of America is not the

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C.

TILA

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Congress enacted TILA “to assure a meaningful disclosure of

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credit terms so that the consumer will be able to compare more

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readily the various credit terms available to him and avoid the

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uninformed use of credit, and to protect the consumer against

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inaccurate and unfair credit billing and credit card practices.”

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15 U.S.C. § 1601(a).

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provide borrowers with clear and accurate disclosures of terms

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dealing with things like finance charges, annual percentage rates

Accordingly, TILA “requires creditors to

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of interest, and the borrower’s rights.”

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Beach v. Ocwen Fed.

Bank, 523 U.S. 410, 412 (1998).

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TILA provides that an “action [for damages] . . . may be

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brought in any United States district court, or in any other court

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of competent jurisdiction, within one year from the date of the

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occurrence of the violation.”

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Circuit has held that the one-year window for filing a TILA

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damages claim generally “runs from the date of consummation of the

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transaction.”

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1986).

15 U.S.C. § 1640(e).

The Ninth

King v. California, 784 F.2d 910, 915 (9th Cir.

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Here, Plaintiff alleges that, although she disputes the

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validity of the Assignment to Bank of America, Defendant was

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nonetheless required to follow TILA’s disclosure provisions.

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¶ 92.)

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recorded on October 6, 2010.

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complaint until October 27, 2011, over one year later.

(FAC

The Assignment was executed on September 22, 2010 and
Plaintiff did not file her initial

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In some cases, the doctrine of equitable tolling suspends the

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applicable limitations period “until the borrower discovers or had

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reasonable opportunity to discover the fraud or nondisclosures
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that form the basis of the TILA action.”

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Courts must consider the applicability of equitable tolling

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whenever a complaint, liberally construed, alleges facts showing

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the “potential applicability of the equitable tolling doctrine.”

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Cervantes v. City of San Diego, 5 F.3d 1273, 1277 (9th Cir. 1993).

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King, 784 F.2d at 915.

Where a borrower does not allege that she was somehow

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prevented from comparing her loan documents with TILA’s disclosure

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requirements within the limitation period, equitable tolling is

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not available.

See Hubbard v. Fidelity Fed. Bank, 91 F.3d 75, 79

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(9th Cir. 1996);

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01304, 2009 WL 2390842, at *4 (E.D. Cal. August 3, 2009).

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Plaintiff has not alleged any facts that would warrant equitable

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tolling of her claim.

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fraudulently concealed that fact that it was assigned a beneficial

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interest in the Deed, the FAC itself acknowledges that the

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Assignment was recorded on October 6.2

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is not warranted, Plaintiff’s TILA claim is time-barred, and is

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therefore dismissed.

Feliciano v. Wash. Mut. Bank, F.A., No. 09-CVHere,

Though Plaintiff argues that Defendant

Because equitable tolling

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D.

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Plaintiff alleges that Defendant did not respond to her

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“Qualified Written Request” (“QWR”) for information about her loan

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within the time limits set forth by RESPA, 12 U.S.C. § 2605.

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¶ 114.)

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purported QWR (“the Letter”) to Defendant.

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M.)

RESPA

On September 14, 2011, Plaintiff’s counsel sent a
(FAC ¶ 109-110; Ex.

The Letter explained that counsel had been retained by

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(FAC

The FAC does not allege a cause of action for fraud.
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Augusto Britton Del Rio, Plaintiff’s father.

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requests were made on behalf of Mr. Del Rio alone.

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(FAC Ex. M.)

All

(Id.)

Mr. Del Rio died in 2007, over four years before counsel sent

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the Letter on his behalf.

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either Ms. Del Rio or Plaintiff.

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responded to the Letter, stating that they could not release the

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requested information without the approval of the executor of Mr.

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Del Rio’s estate.

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another letter to counsel, indicating that Defendant had received

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an “application for executor” from Plaintiff, but that Plaintiff’s

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application did not constitute acceptable borrower authorization

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sufficient to release loan information.

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(FAC ¶ 15.)

(FAC Ex. N.)

The QWR made no mention of

On September 30, 2011, Defendant

On October 14, Defendant sent

(Id.)

Under RESPA, mortgage loan servicers must respond to QWRs

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from a borrower or an agent of the borrower.

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2605(e)(1)(A).

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behalf of the late Mr. Del Rio.

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that Defendant received a valid QWR, Plaintiff’s RESPA claim is

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dismissed.

12 U.S.C. §

Here, however, the Letter was sent solely on
Because the FAC fails to allege

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E.

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Generally, an accounting is a remedy rather than a cause of

Accounting

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action.

Arango v. Recontrust Co., N.A., No. 09 CV 01754 MMA, 2010

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WL 2404652 at *6 (S.D. Cal. Jun. 14, 2010).

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accounting can be a cause of action when a defendant has a

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fiduciary duty to a plaintiff which requires an accounting . . .

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and that some balance is due to the plaintiff that can only be

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ascertained by an accounting.”

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Inc., 640 F.Supp.2d 1177, 1191 (N.D. Cal. 2009).

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however, a lending institution does not owe a fiduciary duty to a

“In rare cases, an

Pantoja v. Countrywide Home Loans,

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In most cases,

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borrower.

Brown v. Bank of Am., N.A., No. CIV S-10-1758 LKK DAD,

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2011 WL 1253844 at *7 (E.D. Cal. Mar. 31, 2011).

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allegations of special circumstances creating a fiduciary duty,

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Plaintiff’s claim for an accounting is dismissed.

Absent any

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F.

Breach of Contract

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The FAC alleges that Bank of America breached the Deed of

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Trust by failing to apply Plaintiff’s loan payments in the order

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of priority set out in the Deed.

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no more than a bare recitation of an element of a breach of

(FAC ¶ 159.)

This allegation is

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contract claim.

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misallocated, when the misallocation occurred, or how Defendant’s

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allocation of payments was improper.

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contract claim is therefore dismissed, with leave to amend.

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Derusseau v. Bank of America, N.A., No. 11 CV 1766 MMA, 2011 WL

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5975821 at *7 (S.D. Cal. Nov. 29, 2011).

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G.

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The FAC does not identify which payments were

Plaintiff’s breach of
See

Breach of Implied Covenant of Good Faith and Fair
Dealing

The FAC alleges that Bank of America’s improper allocation of

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her loan payments made it impossible for her to carry out her

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obligations under the contract.

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contradicts her allegation, made in the context of her breach of

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contract claim, that she substantially performed all conditions in

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the Deed.

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with leave to amend.

(FAC ¶ 158.)

(FAC ¶ 164.)

This allegation

Accordingly, this claim is dismissed,

See Armeni, 2012 WL at *5.

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H.

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Plaintiff further contends that Defendant is not entitled to

California Civil Code Sections 2923.5 and 2924

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utilize California’s non-judicial foreclosure scheme, California

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Civil Code Section 2924 et seq., because Defendant failed to
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comply with the notice requirements of California Civil Code

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section 2923.5.

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(FAC ¶¶ 176-177.)

A foreclosure sale cannot proceed without a valid Notice of

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Default.

Mabry v. Superior Court, 185 Cal.App.4th 208, 223

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(2010).

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its agent to contact, or attempt to contact, a defaulting borrower

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prior to recording a notice of default.

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2923.5(a)(1).

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beneficiary or authorized agent shall contact the borrower in

California Civil Code section 2923.5 requires a lender or

Cal. Civil Code §

Under Section 2923.5(a)(2), a “mortgagee,

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person or by telephone in order to assess the borrower's financial

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situation and explore options for the borrower to avoid

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foreclosure.”

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mortgage servicer need not necessarily make actual contact with a

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borrower, provided that the servicer exercises due diligence in

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its attempt to contact the borrower.

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Cal. Civil Code § 2923.5(a)(2).

However, a

Cal. Civil Code § 2923.5(e).

Here, the FAC only alleges that Defendant failed to contact

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Plaintiff.

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establish a violation of Section 2923.5.

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Tenth Cause of Action is dismissed, with leave to amend.

Failure to contact a borrower is insufficient to
Accordingly, Plaintiff’s

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I.

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Plaintiff’s First Cause of Action for Declaratory Relief is

Remaining Claims

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duplicative of and commensurate with relief Plaintiff seeks

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through her other causes of action, and is therefore dismissed.

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See Permpoon v. Wells Fargo Bank Nat’l Ass’n, No. 09-CV-01140-H,

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2009 WL 3214321 at *5 (S.D. Cal. Sept. 29, 2009).

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dismissed all other claims, the court also dismisses Plaintiff’s

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Sixth Cause of Action for unfair business practices in violation

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Having

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of California Business and Professions Code Section 17200, without

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prejudice.

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IV.

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Conclusion
For the reasons stated above, Defendant’s Motion to Dismiss

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is GRANTED.

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Action (unfair business practices, breach of contract, breach of

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implied covenant, and Section 2923.5/2924) are dismissed, with

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leave to amend.

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prejudice.

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Plaintiff’s Sixth, Eighth, Ninth, and Tenth Causes of

All other causes of action are dismissed with

Any amended complaint shall be manually filed within

twenty days of the date of this order.

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IT IS SO ORDERED.

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Dated:

February 14, 2013
DEAN D. PREGERSON
United States District Judge

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