Peter Maloney v. IndyMac Mortgage Services et al
Filing
61
ORDER GRANTING DEFENDANTS MOTION TO DISMISS IN PART AND DENYING IN PART 27 .Plaintiffs claims are not preempted. Plaintiffs claims for unjust enrichment, breach of fiduciary duty, and conversion are DISMISSED, prejudice. In all other respects, Defendants motion is DENIED by Judge Dean D. Pregerson. (lc). Modified on 11/17/2014. (lc).
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NO JS-6
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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PETER MALONEY, individually
and on behalf of all others
similarly situated,
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Plaintiff,
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v.
INDYMAC MORTGAGE SERVICES,
ONEWEST BANK FSB,
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Defendants.
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___________________________
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Case No. CV 13-04781 DDP (AGRx)
ORDER GRANTING DEFENDANT’S MOTION
TO DISMISS IN PART AND DENYING IN
PART
[Dkt. No. 27]
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Presently before the court is Defendant OneWest Bank, FSB
20
(“the Bank”)’s Motion to Dismiss.
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submissions of the parties and heard oral argument, the court
22
grants the motion in part, denies the motion in part, and adopts
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the following order.
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I.
25
Having considered the
Background
Plaintiff Peter Maloney purchased a condominium, secured by
26
$158,500.00 mortgage, in 2006.
27
required Plaintiff to acquire insurance against any hazard “for
28
which Lender requires insurance . . . for the periods that Lender
(Complaint ¶ 20.)
The deed
1
requires.”
2
Plaintiff failed to maintain the required insurance coverage,
3
“Lender may obtain insurance coverage, at Lender’s option and
4
[Plaintiff’s] expense.”
5
the insurance be maintained “in the amounts . . . and for the
6
periods that Lender requires.”
7
the deed allowed the Lender to “do and pay for whatever is
8
reasonable or appropriate to protect Lender’s interest in the
9
Property” if Plaintiff failed to perform under the deed.
(Compl.,
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Ex. 1 ¶ 9.)
(Compl. ¶
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10.)
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of the Bank serviced the loan during all relevant time periods.
13
(Compl. ¶¶ 10, 29.)
14
(Compl. ¶ 22.)
The deed further provided that if
(Id. ¶ 23.)
The deed also required that
(Compl., Ex. 1 ¶ 5.)
More broadly,
The Bank is a national banking association.
While nonparty Fannie Mae owns Plaintiff’s loan, a subsidiary
At some unspecified date, the Bank sent Plaintiff a letter
15
stating that, due to a change in Federal Emergency Management
16
Agency (“FEMA”) flood maps, Plaintiff’s property was located in a
17
Special Flood Hazard Area.
18
letter explained, Plaintiff’s condo needed to be covered by flood
19
insurance.1
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letter on September 17, 2011.
21
informed Plaintiff that if he did not obtain flood insurance, the
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Bank would have to obtain it on his behalf.
23
explained that if the Bank obtained coverage, “the cost may be
24
significantly higher than the premium that could be obtained if you
25
were to contact your local agent.”
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disclosed that “We and/or our affiliates may receive compensation
(Id.)
(Compl., Ex. 5.)
As a result, the
The Bank sent Plaintiff a second, similar
(Compl., Ex. 8.)
(Id.)
The second letter
The second letter
The letter further
27
1
28
It appears that at least one page of this undated letter is
missing from the exhibit to the complaint.
2
1
in connection with the insurance policy described in this letter.”
2
(Id.)
3
Plaintiff did not obtain flood insurance.
The Bank then
4
force-placed a $250,000 flood policy on Plaintiff’s property, with
5
an annual premium of $2,250.00.
6
alleges that the Bank received kickbacks from the insurance company
7
in the form of “‘commissions,’ ‘expense’ reimbursements, and/or
8
other compensation.”
9
that the Bank’s acts and excessive insurance requirements resulted
(Compl. ¶¶ 36-37.)
(Compl. ¶ 45.)
Plaintiff
Plaintiff’s Complaint alleges
10
“in unnecessary and unfair charges for force-placed flood
11
insurance.”
12
of action for breach of contract, unjust enrichment, breach of
13
fiduciary duty, conversion, and unfair business practices.
14
Bank now moves to dismiss.
15
II.
16
(Compl. ¶ 44.)
The Complaint alleges state law causes
The
Legal Standard
A complaint will survive a motion to dismiss when it contains
17
“sufficient factual matter, accepted as true, to state a claim to
18
relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
19
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
20
570 (2007)).
21
“accept as true all allegations of material fact and must construe
22
those facts in the light most favorable to the plaintiff.” Resnick
23
v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000).
24
need not include “detailed factual allegations,” it must offer
25
“more than an unadorned, the-defendant-unlawfully-harmed-me
26
accusation.”
27
allegations that are no more than a statement of a legal conclusion
28
“are not entitled to the assumption of truth.” Id. at 679.
When considering a Rule 12(b)(6) motion, a court must
Iqbal, 556 U.S. at 678.
3
Although a complaint
Conclusory allegations or
In
1
other words, a pleading that merely offers “labels and
2
conclusions,” a “formulaic recitation of the elements,” or “naked
3
assertions” will not be sufficient to state a claim upon which
4
relief can be granted.
5
quotation marks omitted).
6
Id. at 678 (citations and internal
“When there are well-pleaded factual allegations, a court should
7
assume their veracity and then determine whether they plausibly
8
give rise to an entitlement of relief.” Id. at 679.
9
must allege “plausible grounds to infer” that their claims rise
Plaintiffs
10
“above the speculative level.”
11
“Determining whether a complaint states a plausible claim for
12
relief” is a “context-specific task that requires the reviewing
13
court to draw on its judicial experience and common sense.”
14
556 U.S. at 679.
15
III. Discussion
Twombly, 550 U.S. at 555.
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A.
17
Iqbal,
The Bank contends that Plaintiff’s state law claims are
Preemption
18
preempted for a variety of reasons, each of which the court
19
addresses in turn.
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21
1.
The National Flood Insurance Act
“Congress enacted the National Flood Insurance Act of 1968 in
22
response to a growing concern that the private insurance industry
23
was unable to offer reasonably priced flood insurance on a national
24
basis.”
25
(9th Cir. 2000).
26
institutions are forbidden from making loans on structures within
27
special flood hazard areas unless the building is covered by flood
28
insurance.
Flick v. Liberty Mutual Fire Ins. Co., 205 F.3d 386, 387
As of 1973, federally regulated lending
42 U.S.C. § 4012a(b)(1)(A).
4
Covered structures must be
1
insured “in an amount at least equal to the outstanding principal
2
balance of the loan or the maximum limit of coverage made available
3
under the [NFIA] . . ., whichever is less.2
4
servicer becomes aware that a building securing a loan is
5
inadequately covered, the lender or servicer must inform the
6
borrower that the borrower should obtain flood coverage.
7
4012a(e)(1).
8
required coverage, the lender or servicer must obtain flood
9
insurance on the borrower’s behalf.
Id.
If a lender or
42 U.S.C.
If the borrower ultimately fails to obtain the
42 U.S.C. § 4012a(e)(2).
A
10
regulated institution that force-purchases required coverage
11
satisfies any regulations promulgated under
42 U.S.C. § 4012a(b),
12
“[n]otwithstanding any State or local law.”
42 U.S.C. §
13
4012a(f)(6).
14
The Bank argues that the “notwithstanding any State or local
15
law” language of 42 U.S.C. § 4012a(f)(6) indicates that the NFIA
16
occupies the field of flood insurance placement.
17
Reply at 7.)
18
thoroughly occupies a legislative field that there is no room for
19
state action in that area.”
20
(9th Cir. 2008) (citing Montalvo v. Spirit Airlines, 508 F.3d 464,
21
470 (9th Cir. 2007)).
22
(Mot. at 12;
Field preemption exists when a federal law “so
Donell v. Kowell, 533 F.3d 762, 775
The Bank cites several out-of-circuit cases to support its
23
field preemption argument.
Aside from being non-binding, these
24
cases are distinguishable.
In Wright v. Allstate Insurance Co.,
25
for example, the Fifth Circuit adopted the reasoning of the Third
26
and Sixth Circuits in finding a flood insurance claim preempted
27
2
28
The maximum amount varies, depending on the type of
structure at issue. See 42 U.S.C. § 4013(b).
5
1
under the NFIA.
2
390 (5th Cir. 2005).
3
nothing to do with forced-placement of coverage, but rather a
4
disputed valuation of covered damage.
5
that specific factual context, the court limited its preemption
6
holding to “state law tort claims arising from claims handling . .
7
.,” with no mention of force-placed coverage.
8
added).
9
Wright v. Allstate Insurance Co., 415 F.3d 384,
The claim at issue in Wright, however, had
Id. at 386.
In light of
Id. at 390 (emphasis
Contrary to the Bank’s suggestion, therefore, the Wright court
10
did not opine that the NFIA occupies the field of flood insurance
11
placement.
12
federal law might impliedly preempt state law, the other being
13
conflict preemption.
14
Inc. V. Aetna Casualty and Surety Co., upon which Wright relies,
15
the Third Circuit explicitly declined to apply field preemption in
16
a flood insurance claim dispute case.
17
Casualty and Surety Co., 386 F.3d 263, 269 (9th Cir. 2004).
18
did the Sixth Circuit in Gibson v. American Bankers Insurance Co.
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specify whether field preemption principles applied.
20
952 n.2 (Sixth Cir. 2002) (Moore, J., dissenting).
21
however, the Gibson court limited its holding to claims processing
22
disputes, declining to decide “whether policy procurement type
23
state law claims are preempted by NFIA.”
Field preemption is but one of two ways in which
Montalvo, 508 F.3d at 470.
In C.E.R. 1988,
C.E.R. 1988, Inc. V. Aetna
Nor
289 F.3d 943,
As in Wright,
Id. at 949-50.
24
These authorities, therefore, cannot support the Bank’s
25
contention that NFIA occupies the field of forced flood insurance
26
placement.
27
recognized, agencies implementing the NFIA appear to agree that
28
NFIA does not preempt all flood-insurance related claims under
Furthermore, as one court in this circuit has
6
1
state law.
2
WHA, 2010 WL 3259773 at *11 (N.D. Cal. Aug. 16, 2010) (citing 74
3
Fed. Reg. 35914, 35918 (July 21, 2009) (“[T]here may be penalties
4
for over-insurance under applicable State law.”)).
5
not address whether the NFIA preempts claims-processing disputes
6
because Plaintiff here raises no such claims.
7
placement claims, however, are not field preempted.
8
9
Hofstetter v. Chase Home Finance, LLC., No. C 10-1313
2.
This court does
Plaintiff’s forced-
Filed Rate Doctrine
The Bank also argues that Plaintiff’s claims are barred by the
10
filed rate doctrine.
(Mot. at 14.)
The court-created filed rate
11
doctrine holds that any rate approved by a government regulatory
12
agency is reasonable, and therefore cannot be judicially challenged
13
by a ratepayer.
14
Cir. 1994).
15
flood insurance rates, must be approved by the California
16
Department of Insurance.
17
governing business generally also apply to the insurance industry.
18
Cal. Ins. Code §§ 1860.2, 1861.3(a).
19
Insurance Code also states that “[n]o act done, action taken or
20
agreement made pursuant to the authority conferred by this chapter
21
shall constitute a violation of or grounds for prosecution or civil
22
proceeding under any other law of this State . . . which does not
23
specifically refer to insurance.”
24
attempt to harmonize these conflicting principles, California
25
courts have held that actions taken pursuant to ratemaking
26
authority, including the charging of an approved rate, are exempt
27
from other, non-insurance-related laws.
28
188 Cal. App. 4th 1427, 1443 (2010).
Wegoland Ltd. V. NYNEX Corp., 27 F.3d 17, 19 (2nd
In California, property insurance rates, including
Cal. Ins. Code § 1861.01(c).
Laws
However, the California
Cal. Ins. Code § 1860.1.
7
In an
MacKay v. Superior Court,
California’s statutory scheme
1
is thus analogous to, albeit distinct from, the filed rate
2
doctrine.
3
757 n.4 (2000).3
Walker v. Allstate Indemnity Co., 77 Cal. App. 4th 750,
4
The Bank argues that Plaintiff’s claims, though pled as
5
contract and tort claims, are actually challenges to the premiums
6
Plaintiff was required to pay on the force-placed flood insurance
7
policies.
8
or commissions underpinning Plaintiff’s complaint are merely
9
components of a government-approved rate.
In other words, the Bank contends that the “kickbacks”
As such, the argument
10
goes, the filed rate doctrine and California Insurance Code bar
11
Plaintiff’s state law claims.
12
Defendant cites Singleton v. Wells Fargo Bank, N.A., No.
13
12CV216-NBB-SAA, 2013 WL 5423917 (N.D. Miss. Sept. 26, 2013), to
14
support its argument in favor of broad application of the filed
15
rate doctrine.
16
to bar kickback claims against a bank.
17
Unlike Plaintiff here, however, the Singleton plaintiff
18
specifically alleged that she was charged “exorbitant” and
19
“illegal” rates.
20
legality of an approved rate, other out-of-circuit courts have
21
refused to apply the filed rate doctrine.
22
JPMorgan Chase Bank, N.A., 678 F.Supp.2d 1273
23
(S.D. Fla. 2009); Kunzelman v. Wells Fargo Bank, N.A., No.
24
81373-DMM, 2012 WL 2003337 (S.D. Fla. June 4, 2012).
Indeed, the Singleton court did apply the doctrine
Id.
Singleton, 2013 WL at *2.
Absent such explicit challenges to the
See, e.g. Ables v.
11-cv-
25
26
27
28
3
California courts are split as to whether the judicially
created filed rate doctrine applies. See Leghorn v. Wells Fargo
Bank, N.A., 550 F.Supp.2d. 1093, 1115 (N.D. Cal. 2013).
8
1
Courts in this circuit have adopted the same approach.
2
Leghorn v. Wells Fargo Bank, N.A., 550 F.Supp.2d. 1093, 1115-16
3
(N.D. Cal. 2013), the court explained, with reference to
4
allegations similar to those here, that kickback claims did not
5
present a challenge to an insurance rate itself, but rather the
6
lender/servicer’s decision to favor one particular insurance
7
carrier.
8
on increased costs incurred as a result of the alleged kickback
9
scheme does not transform a challenge to conduct and practices into
This court agrees.
In
“Just because the damages are based
10
a challenge to the premiums.”
11
F.Supp.2d 1063, 1083 (N.D. Cal. 2012).
12
aside the question whether the filed rate doctrine applies to a
13
claim brought against a party other than an insurer, the Bank’s
14
choice of carriers is not dependent upon or made pursuant to any
15
ratemaking authority under the California Insurance Code.
16
neither the Insurance Code nor the filed rate doctrine bar
17
Plaintiff’s claims.
18
19
3.
Ellsworth v. U.S. Bank, N.A., 908
Furthermore, even putting
Thus,
Home Owners’ Loan Act and National Bank Act
The Home Owners’ Loan Act (“HOLA”), 12 U.S.C. § 1461 et seq.,
20
granted the Office of Thrift Supervision (“OTS”) broad authority to
21
regulate federal savings associations.
22
Corp., 514 F.3d 1001, 1005 (9th Cir. 2008).
23
12 CFR § 560.2(a), entitled “Occupation of field,” stated that
24
“[p]ursuant to . . . HOLA, OTS is authorized to promulgate
25
regulations that preempt state laws affecting the operations of
26
federal savings associations . . . .
27
entire field of lending regulation for federal savings
28
associations.”
Silvas v. E*Trade Mortgage
One OTS regulation,
OTS hereby occupies the
Preempted state laws include those that impose
9
1
requirements regarding the “[p]rocessing, origination, servicing,
2
sale or purchase of, or investment or participation in,
3
mortgages[.]”
4
provided, however, that state laws, including contract and tort
5
laws, that “only incidentally affect the lending operations of
6
Federal savings associations” are not preempted.
7
560.2(c).
8
9
12 CFR § 560.2(b)(10).
The regulations further
12 CFR §
On July 21, 2011, however, the Dodd-Frank Act transferred
supervisory authority from OTS to the Office of the Comptroller of
10
the Currency (“OCC”).
12 U.S.C. § 5412.
All of the events at
11
issue here occurred after this transfer.
12
further provided that HOLA does not occupy the field of lending
13
regulations for thrifts, and that preemption under HOLA is governed
14
by the same standards applicable to national banks.
15
World Savings Bank F.S.B., No. ED CV 11-800 MMM; 2012 WL 1026103 at
16
*13 (C.D. Cal. Jan. 11, 2012).
17
National Bank Act (“NBA”) and its implementing regulations, are
18
more lenient and less all-encompassing than the former HOLA
19
standards.
20
1009, 1019-20 (N.D. Cal. 2012); 12 U.S.C. § 21; 12 C.F.R. § 34.4.
21
Under NBA regulations, “a national bank may make real estate
The Dodd-Frank Act
See Settle v.
Those standards, set forth by the
See Tanburri v. Suntrust Mortgage, Inc., 875 F.Supp.2d
22
loans . . . without regard to state law limitations concerning . .
23
. the ability of a creditor to require or obtain . . . insurance
24
for other collateral.”
25
the “[p]rocessing, origination, servicing, sale or purchase of, or
26
investment or participation in, mortgages” are also preempted.
27
Id.; Martinez v. Wells Fargo Home Mortgage, Inc., 598 F.3d 549, 555
28
(9th Cir. 2010) (“[S]tate laws that obstruct, impair, or condition
12 CFR § 34.4(a).
10
State laws regarding
1
a national bank’s ability to fully exercise its Federally
2
authorized real estate lending powers are preempted.” (internal
3
quotation omitted).
4
States may, however, “regulate the activities of national
5
banks where doing so does not prevent or significantly interfere
6
with the national bank’s or the national bank regulator’s exercise
7
of its powers.”
8
(2007).
9
contracts, torts, and any other laws with only incidental effect on
Watters v. Wachovia Bank, N.A., 550 U.S. 1, 12
Consistent with this principle, state laws regarding
10
lending operations are not preempted.
11
598 F.3d at 555 (“State laws of general application, which merely
12
require all businesses (including national banks) to refrain from
13
fraudulent, unfair, or illegal behavior, do not necessarily impair
14
a bank’s ability to exercise its real estate lending powers.”).
15
12 CFR § 34.3(b); Martinez,
The Bank argues that Plaintiff’s state law claims implicate
16
the Bank’s discretionary power to impose non-interest fees and
17
charges in accordance with sound banking principles and judgment.
18
12 CFR § 7.4002.
19
that the Bank charges any particular fee at all.
20
above in the filed rate context, Plaintiff’s claims do not
21
challenge any fee imposed by the Bank, but rather question the
22
method by which the Bank selects an insurance carrier.
23
Ellsworth, 908 F. Supp. 2d at 1078; Leghorn, 2013 WL at *16; Cannon
24
v. Wells Fargo Bank N.A., 917 F.Supp.2d 1025, 1049-50 (N.D. Cal.
25
2013.)
26
state laws at issue here prevent it from obtaining flood insurance
27
or interfere in any meaningful way with its ability to do so.
28
Accordingly, the NBA does not preempt Plaintiff’s claims.
Plaintiff’s complaint, however, does not allege
As discussed
See
The Bank has not demonstrated that the broadly applicable
11
1
2
B.
3
4
Sufficiency of State Law Claims
1.
Breach of Contract
A breach of contract claim requires, as a matter of course, an
5
allegation of a breach.
6
Chase Bank, NA, 863 F.Supp.2d 928, 954 (N.D. Cal. 2012).
7
argues that Plaintiff has failed to allege a breach because (1) the
8
deed of trust allows the Bank to require flood insurance, (2) the
9
deed allows the Bank to determine the proper amount of coverage,
See, e.g. McNeary-Calloway v. JPMorgan
The Bank
10
and (3) the deed does not prohibit the payment or receipt of
11
commissions.
12
Defendant is correct that Section 5 of the deed of trust
13
allows it to require flood insurance and to determine the period
14
and amount of such coverage.
15
unbridled.
16
this case, the Bank as servicer), “may do . . . whatever is
17
reasonable or appropriate to protect Lender’s interest in the
18
Property and rights under this Security Instrument . . . .”
19
terms are identical to those at issue in other, similar cases,
20
including Ellsworth.
21
That power, however, is not
Section 9 of the deed states that the Lender (or, in
These
Ellsworth, 908 F.Supp.2d at 1084-85.
The fundamental goal of contract interpretation is to give
22
effect to the mutual intention of the parties.”
23
v. Superior Court, 2 Cal.4th 1254, 552 (1992).
24
contract must be read in context, taking into account the
25
circumstances of the case and the language of the contract in its
26
entirety.
27
explicit contractual language controls, and contractual claims may
28
be resolved on a motion to dismiss when such terms are at issue.
Bank of the West
The provisions of a
Universal City, 208 Cal.App.4th at 737.
12
Clear and
1
Bank of the West, 2 Cal.4th at 552; Monaco v. Bear Stearns
2
Residential Mortgage Corp., 554 F.Supp.2d 1034, 1040 (C.D. Cal.
3
2008).
4
capable of two or more reasonable interpretations and therefore
5
leaves doubt as to the parties’ intent, a motion to dismiss must be
6
denied.
7
But where the language is ambiguous, such that is is
Monaco, 554 F.Supp.2d at 1041.
Here, as in Ellsworth, the tension between the discretion
8
granted to the Bank by section 5 of the agreement and the
9
limitations imposed by the “reasonable or appropriate” language of
10
section 9 create ambiguities regarding the authorized level of
11
insurance and the propriety of commissions that cannot be resolved
12
at this stage.
13
Bank’s motion to dismiss Plaintiff’s breach of contract claim is,
14
therefore, denied.4
15
16
2.
See Ellsworth, 908 F.Supp.2d at 1084-85.
The
Unjust Enrichment
Plaintiff’s Complaint asserts causes of action for both breach
17
of contract and unjust enrichment.
18
recover on an unjust enrichment or quasi contract claim if the
19
parties have an enforceable agreement covering the same subject
20
matter.
21
965 F.Supp.2d 1141, 1154 (E.D. Cal. 2013).
22
Civil Procedure 8(d)(3) allows inconsistent claims to be pled, Rule
23
8 does not allow a plaintiff to circumvent state law by stating a
A plaintiff may not, however,
Sacramento E.D.M. Inc. V. Hynes Aviation, Indus., Inc.,
Though Federal Rule of
24
25
26
27
28
4
Defendant argues briefly, in a footnote, that Plaintiff’s
claim for breach of the implied covenant of good faith and fair
dealing fails for the same reasons advanced with respect to the
breach of contract claim. Having concluded that Plaintiff’s breach
of contract claim survives, the court notes that Plaintiff’s good
faith and fair dealing claim survives for similar reasons. See
also Leghorn, 950 F.Supp.2d at 1119-20.
13
1
claim for both express and quasi contract.
2
Privacy Litigation, 791 F.Supp.2d 705, 718 (N.D. Cal. 2011)
3
(“Although Rule 8 . . . allows a party to state multiple, even
4
inconsistent claims, the rule does not allow a party invoking state
5
law to assert an unjust enrichment claim while also alleging an
6
express contract.”); Custom LED, LLC v. eBay, Inc., No. C 12-350
7
SI, 2012 WL 1909333 at *5 (N.D. Cal. 2012).5
8
enrichment claim is dismissed with prejudice.
9
10
3.
See In re Facebook
Plaintiff’s unjust
Breach of Fiduciary Duty
Plaintiff’s Complaint alleges that a fiduciary relationship
11
arose between he and the Bank because the Bank held money in escrow
12
for flood insurance premiums.
13
financial institutions operating as conventional lenders of money
14
do not owe fiduciary duties to borrowers.
15
Loans Servicing, LP, No. SACV 11-915-JST, 2012 WL 7051318 at *7
16
(C.D. Cal. Dec. 20, 2012).
17
loan servicer’s conventional role.
18
escrow services does not fall outside that conventional role, and
19
does not create a fiduciary relationship.
20
J.P. Morgan Chase, N.A., No. CIV. 2:12-225 WBS, 2012 WL 1574821 at
21
*3 (E.D. Cal. May 3, 2012).
22
claim is dismissed with prejudice.
23
4.
(Compl. ¶¶ 97-98.)
Generally,
Gustafson v. BAC Home
Force-placing insurance falls within a
Id.
The provision of some
Id.; See also Rose v.
Plaintiff’s breach of fiduciary duty
Conversion
24
A claim for conversion requires “(1) ownership of or right to
25
possess the property, (2) the defendant’s conversion by a wrongful
26
27
28
5
Courts are split as to whether unjust enrichment is an
independent cause of action in California. See Cheung v. Wells
Fargo Bank, N.A., 987 F.Supp.2d 972, 979 (N.D. Cal. 2013).
14
1
act or disposition of the property, and (3) damages.”
Hopkins v.
2
Wells Fargo Bank, N.A., No. CIV. 2:13-00444 WBS, 2013 WL 2253837 at
3
*9 (E.D. Cal. May 22, 2013).
4
that the Bank did have the right to use escrow funds to pay for
5
flood insurance.
6
of escrow funds was wrongful because the Bank was not authorized to
7
spend escrow funds pursuant to a kickback scheme and was not
8
authorized to purchase the level of insurance that it did.
9
at 16.)
Plaintiff does not appear to dispute,
Plaintiff contends, however, that the disposition
(Opp.
Those allegations are the core of Plaintiff’s breach of
10
contract claims, and are better resolved in that context.
11
Hopkins,
12
premised upon same conduct as breach of contract claim); McKenzie
13
v. Wells Fargo Bank, N.A, 931 F.Supp.2d 1028, 15-16 (N.D. Cal.
14
2013) (dismissing conversion claim regarding force-placed flood
15
insurance premiums).
16
IV.
17
See
2013 WL 2253837 at *10 (dismissing conversion claim
Conclusion
For the reasons stated above, Defendant’s Motion to Dismiss is
18
GRANTED in part and DENIED in part.
19
preempted.
20
fiduciary duty, and conversion are DISMISSED, prejudice.
21
other respects, Defendant’s motion is DENIED.6
22
IT IS SO ORDERED.
23
Dated:November 17, 2014
Plaintiffs’ claims are not
Plaintiff’s claims for unjust enrichment, breach of
In all
DEAN D. PREGERSON
United States District Judge
24
25
26
6
27
28
Because Plaintiff’s breach of contract and good faith and
fair dealing claims survive, so too does his unfair competition
claim under California Business & Professions Code § 17200. See
Leghorn, 950 F.Supp.2d at 1120-21.
15
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