Barbara Waldrup v. Countrywide Financial Corporation et al

Filing 45

MINUTES OF Motion Hearing held before Judge Christina A. Snyder RE: Motion to Dismiss Plaintiff's Second Amended Complaint 39 . The Court hereby dismisses without prejudice plaintiff's second, third, and fourth claim. Defendants' motion to dismiss is otherwise DENIED. Plaintiff shall have until 10/27/2014, to file an amended complaint. See document for details. Court Reporter: Laura Elias. (gk)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:13-cv-08833-CAS(CWx)

Title

BARBARA WALDRUP V. COUNTRYWIDE FINANCIAL
CORPORATION ET AL.

Present: The Honorable

Date

‘O’

October 6, 2014

CHRISTINA A. SNYDER

Catherine Jeang
Deputy Clerk

Laura Elias
Court Reporter / Recorder

N/A
Tape No.

Attorneys Present for Plaintiff:

Attorneys Present for Defendants

Daniel Alberstone

Douglas Thompson

Proceedings:

I.

MOTION TO DISMISS PLAINTIFF’S SECOND AMENDED
COMPLAINT (Dkt. 39, filed September 3, 2014)

INTRODUCTION

On November 27, 2013, plaintiff Barbara Waldrup filed this putative class action
against defendants Countrywide Financial Corporation , Countrywide Home Loans, Inc.,
Countrywide Bank, N.A. (collectively, “Countrywide”), Bank of America Corporation
(“BOA”), LandSafe, Inc., and LandSafe Appraisal, Inc (collectively, “LandSafe”). The
operative second amended complaint (“SAC”) asserts claims for (1) violation of
California’s Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200 et seq., (“UCL”),
(2) violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18
U.S.C. § 1962(c), (3) conspiracy to violate RICO, 18 U.S.C. § 1962(d), (4) fraud, and (5)
unjust enrichment. Plaintiff seeks to assert claims on behalf of the following proposed
class:
All residents of the United States of America who, during the period January
1, 2003 through December 31, 2008, obtained an appraisal from LandSafe in
connection with a loan originated by Countrywide.
SAC ¶ 80.
Defendants previously moved to dismiss plaintiff’s original complaint and first
amended complaint (“FAC”). By order dated April 14, 2014, the Court found that
plaintiff’s original complaint stated claims for unjust enrichment, and under the UCL, but
had failed to plead her fraud or RICO claims with particularity. By order dated July 3,
2014, the Court again found that plaintiff had failed to plead her fraud or RICO claims
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

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Case No.

2:13-cv-08833-CAS(CWx)

October 6, 2014

Title

BARBARA WALDRUP V. COUNTRYWIDE FINANCIAL
CORPORATION ET AL.

with particularity, and that plaintiff had failed to allege damages in connection with these
claims. The Court also dismissed plaintiff’s unjust enrichment and UCL claims.
On September 3, 2014, after plaintiff had filed her second amended complaint,
defendants filed a motion to dismiss and a request for judicial notice. Dkts. 39, 40. On
September 15, 2014, plaintiff opposed both the motion and the request for judicial notice.
Dkts. 41, 42. Defendants replied to both oppositions on September 22, 2014. Dkts. 43,
44.1 Having considered the parties’ arguments, the Court finds and concludes as follows.
II.

BACKGROUND

Plaintiff Barbara Waldrup is a citizen of Texas. SAC ¶ 15. In 2004, plaintiff
applied for a loan from Countrywide to purchase a home. Plaintiff alleges that, as part of
this loan transaction, Countrywide required her to procure an appraisal of the property
being purchased. Countrywide directed plaintiff to obtain that appraisal from LandSafe,
which charged plaintiff $400 for the appraisal. Id. ¶¶ 58-64. Later, in 2007, plaintiff
applied to refinance her home for a second time through Countrywide. Id. ¶ 66.
1

Defendants’ request for judicial notice contains six documents: plaintiff’s 2004
Deed of Trust (Ex. A); plaintiff’s 2004 Purchase Money Deed of Trust (Ex. B); plaintiff’s
2004 appraisal (Ex. C); plaintiff’s 2007 appraisal (Ex. D); California Civil Code § 1090.5
(Ex. E); and a redline comparison purporting to show the differences between the FAC
and SAC (Ex. F). Request for Judicial Notice (“RJN”). The Court declines to take notice
of exhibit F, since it is not generally known, nor is it capable of accurate and ready
determination. Fed. R. Evid. 201(b). The Court takes judicial notice of exhibits A, B,
and E, since they are matters of public record. Lee v. City of Los Angeles, 250 F.3d 668,
688-89 (9th Cir. 2001). The Court does not, however, accept them for the truth of the
matters asserted therein. Exhibits C and D—the appraisals—comprise evidence upon
which the complaint “necessarily relies.” See Marder v. Lopez, 450 F.3d 445, 448 (9th
Cir. 2006). The Court takes notice of them because they are referred to expressly in
plaintiff’s complaint and, as sources of the alleged misrepresentations, are central to
plaintiff’s claims. See Id. Further, plaintiff does not appear to dispute the authenticity of
the documents; rather, she disputes the legitimacy of their contents. Opp’n RJN at 4.
Accordingly, the Court takes judicial notice of the appraisals, but does not accept them
for the matters asserted therein.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

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Case No.

2:13-cv-08833-CAS(CWx)

October 6, 2014

Title

BARBARA WALDRUP V. COUNTRYWIDE FINANCIAL
CORPORATION ET AL.

Countrywide again required plaintiff to seek an appraisal from LandSafe. Id. ¶ 67.
Plaintiff paid $320 for this second appraisal. Id. ¶ 72.
Plaintiff alleges that these two appraisals were not performed in accordance with
the Uniform Standards of Professional Appraisal Practice (“USPAP”) and other
applicable regulations and laws governing appraisals. Id. ¶ 72. Instead, the appraisals
were “reports of a predetermined value that favored Countrywide's cause of rapidly
closing loans.” Id. ¶ 74. Plaintiff alleges that LandSafe performed these “inflated” and
“predetermined” appraisals at the behest of Countrywide, which in the mid-2000s sought
to originate as many mortgages as possible to fill demand. Id. ¶ 47. Because a loan could
not be made unless it was justified by the appraised value of the property, plaintiff alleges
that Countrywide loosened applicable appraisal standards. Id. To this end, plaintiff
alleges that Countrywide “developed an affiliation” with LandSafe, which served as a
captive appraiser that would deliver the appraisals Countrywide needed to justify its
loans. Id. ¶ 48. Plaintiff asserts that LandSafe performed the two appraisals it sold to her
in 2004 and 2007 as part of this scheme to assist Countrywide in originating as many
loans as possible.
Plaintiff contends that the details of Countrywide’s scheme to procure appraisals
first came to light as the result of a whistleblower who was employed by LandSafe
between 2004 and 2008. Id. ¶¶ 49. On May 13, 2009, this whistleblower, an individual
named Kyle Lagow, filed a sealed qui tam complaint against Countrywide, BOA,
LandSafe and others pursuant to the False Claims Act, 31 U.S.C. § 3729, et seq. Id.
Lagow’s whistleblower complaint revealed the alleged relationship between Countrywide
and LandSafe, and the resultant inflation of appraisal values. Lagow’s complaint
included allegations that LandSafe officers instructed appraisal managers that “LandSafe
appraisers were there to help facilitate a Countrywide loan closing.” Id. ¶ 55. Plaintiff
asserts that the Countrywide scheme was not exposed until the Lagow complaint was first
unsealed in May 2012. Id. ¶ 49.

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:13-cv-08833-CAS(CWx)

Title

BARBARA WALDRUP V. COUNTRYWIDE FINANCIAL
CORPORATION ET AL.

III.

Date

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October 6, 2014

LEGAL STANDARD
A.

Motion to Dismiss

A Rule 12(b)(6) motion tests the legal sufficiency of the claims asserted in a
complaint. “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not
need detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his
‘entitlement to relief’ requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). “[F]actual allegations must be enough to raise a
right to relief above the speculative level.” Id.
In considering a motion pursuant to Rule 12(b)(6), a court must accept as true all
material allegations in the complaint, as well as all reasonable inferences to be drawn
from them. Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th Cir. 1998). The complaint must be
read in the light most favorable to the nonmoving party. Sprewell v. Golden State
Warriors, 266 F.3d 979, 988 (9th Cir. 2001); Parks Sch. of Bus., Inc. v. Symington, 51
F.3d 1480, 1484 (9th Cir. 1995). However, “[i]n keeping with these principles a court
considering a motion to dismiss can choose to begin by identifying pleadings that,
because they are no more than conclusions, are not entitled to the assumption of truth.
While legal conclusions can provide the framework of a complaint, they must be
supported by factual allegations.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1950
(2009); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009) (“[F]or a
complaint to survive a motion to dismiss, the non-conclusory ‘factual content,’ and
reasonable inferences from that content, must be plausibly suggestive of a claim entitling
the plaintiff to relief.”) (citing Twombly and Iqbal); Sprewell, 266 F.3d at 988; W.
Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). Ultimately, “[d]etermining
whether a complaint states a plausible claim for relief will . . . be a context-specific task
that requires the reviewing court to draw on its judicial experience and common sense.”
Iqbal, 129 S.Ct. at 1950.
Furthermore, unless a court converts a Rule 12(b)(6) motion into a motion for
summary judgment, a court cannot consider material outside of the complaint (e.g., facts
presented in briefs, affidavits, or discovery materials). In re American Cont’l
Corp./Lincoln Sav. & Loan Sec. Litig., 102 F.3d 1524, 1537 (9th Cir. 1996), rev’d on
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

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Case No.

2:13-cv-08833-CAS(CWx)

October 6, 2014

Title

BARBARA WALDRUP V. COUNTRYWIDE FINANCIAL
CORPORATION ET AL.

other grounds sub nom Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523
U.S. 26 (1998). A court may, however, consider exhibits submitted with or alleged in the
complaint and matters that may be judicially noticed pursuant to Federal Rule of
Evidence 201. In re Silicon Graphics Inc. Sec. Litig., 183 F.3d 970, 986 (9th Cir. 1999);
Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001).
For all of these reasons, it is only under extraordinary circumstances that dismissal
is proper under Rule 12(b)(6). United States v. City of Redwood City, 640 F.2d 963, 966
(9th Cir. 1981).
As a general rule, leave to amend a complaint which has been dismissed should be
freely granted. Fed. R. Civ. P. 15(a). However, leave to amend may be denied when “the
court determines that the allegation of other facts consistent with the challenged pleading
could not possibly cure the deficiency.” Schreiber Distrib. Co. v. Serv-Well Furniture
Co., 806 F.2d 1393, 1401 (9th Cir. 1986); see Lopez v. Smith, 203 F.3d 1122, 1127 (9th
Cir. 2000).
B.

Rule 9(b)

Federal Rule of Civil Procedure 9(b) requires that the circumstances constituting a
claim for fraud be pled with particularity. Federal Rule of Civil Procedure 9(b) applies
not just where a complaint specifically alleges fraud as an essential element of a claim,
but also where the claim is “grounded in fraud” or “[sounds] in fraud.” Vess v. CibaGeigy Corp. U.S.A., 317 F.3d 1097, 1103-04 (9th Cir. 2003). A claim is said to be
“grounded in fraud” or “‘sounds in fraud’” where a plaintiff alleges that defendant
engaged in fraudulent conduct and relies on solely on that conduct to prove a claim. Id.
“In that event, . . . the pleading of that claim as a whole must satisfy the particularity
requirement of [Fed. R. Civ. P.] 9(b).” Id. However, where a plaintiff alleges claims
grounded in fraudulent and non fraudulent conduct, only the allegations of fraud are
subject to heightened pleading requirements. Id. at 1104.
A pleading is sufficient under Fed. R. Civ. P. 9(b) if it “[identifies] the
circumstances constituting fraud so that the defendant can prepare an adequate answer
from the allegations.” Walling v. Beverly Enters., 476 F.2d 393, 397 (9th Cir. 1973).
This requires that a false statement must be alleged, and that “circumstances indicating
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

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Case No.

2:13-cv-08833-CAS(CWx)

October 6, 2014

Title

BARBARA WALDRUP V. COUNTRYWIDE FINANCIAL
CORPORATION ET AL.

falseness” must be set forth. In re GlenFed Sec. Litig., 42 F.3d 1541, 1548 (9th Cir.
1994). Thus, Rule 9(b) requires a plaintiff to “identify the ‘who, what, when, where and
how of the misconduct charged,’ as well as ‘what is false or misleading about [the
purportedly fraudulent conduct], and why it is false.” Cafasso, ex rel. United States v.
Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1055 (9th Cir. 2011) (quoting Ebeid ex rel.
United States v. Lungwitz, 616 F.3d 993, 998 (9th Cir. 2010)).
IV.

ANALYSIS

As a preliminary matter, the Court addresses the issue of damages. In the July 23,
2014 Order dismissing plaintiff’s FAC, the Court found that “plaintiff ha[d] failed to
allege how she was damaged by defendants’ alleged misconduct, because the complaint
is devoid of any allegation that defendants sold plaintiff inaccurate appraisals.” Dkt. 36
at 8. The Court noted that plaintiff appeared to have “disclaim[ed] any theory of
recovery based on an allegation that the appraisals did not correctly value her property.”
Id. Instead, the Court found that “plaintiff appears to assert that she was damaged by
procedural irregularities that corrupted the process by which her property was appraised.”
Id. at 9.
In plaintiff’s opposition to the instant motion, she asserts that she did not disclaim
this theory of recovery in her FAC. Opp’n at 2. Specifically, plaintiff argues that she
was
simply noting that, because Defendants were not preparing legitimate
opinions of value, but rather were simply adhering to a corrupt
process designed to achieve a predetermined value which always
exceeded the loan amount, Plaintiff and members of the putative class
were still injured. The injury remains even if Defendants, on the off
chance, produced an appraisal report which, by happenstance,
included an accurate value of property. In other words, Plaintiff was
attempting to focus the Court on the conduct of charging borrowers
for a represented service (the preparation of a USPAP appraisal)
which was never performed.
Id. at 2, n2.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

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Case No.

2:13-cv-08833-CAS(CWx)

October 6, 2014

Title

BARBARA WALDRUP V. COUNTRYWIDE FINANCIAL
CORPORATION ET AL.

In essence, plaintiff alleges she was overcharged for her appraisals. Because
Countrywide was allegedly indifferent to the appraisals’ accuracy, instead directing
captive appraisers to provide predetermined and inflated values, there was no reason for
plaintiff to pay for the appraisals in the first place. Plaintiff’s SAC comports with this
theory. See SAC ¶ 75 (“Defendants produced so-called ‘appraisal reports’ which were
not legitimate opinions of the value of Plaintiffs property. Rather, they were reports of a
predetermined value that favored Countrywide's cause of rapidly closing loans.”). The
Court thus finds that plaintiff has adequately pled damages in the form of appraisal
payments, at least with regard to her common law fraud claim.
A.

Claims Sounding in Fraud

Plaintiff asserts claims for fraud and violations of RICO, 18 U.S.C. § 1962(c), (d).
Plaintiff’s RICO claims are expressly predicated on allegations of mail and wire fraud.
See SAC ¶¶ 114, 133. Specifically, plaintiff alleges that defendants “misrepresented that
they had prepared an ‘appraisal’ of real property that was performed in accordance with
strict USPAP's legal and ethical standards governing appraisals.” SAC ¶ 144. In reality,
however, plaintiff alleges the “appraisals” were “reports of a predetermined value,” id. ¶
144, that were “not prepared in accordance with USPAP' s legal and ethical standards but
rather w[ere] inflated or otherwise manipulated,” id. ¶ 145.
Because plaintiff’s claims sound in fraud, Fed. R. Civ. P. 9(b) requires that plaintiff
“state with particularity the circumstances constituting fraud or mistake.” See also Vess,
317 F.3d at 1103-04. The Court previously found that plaintiff had not pled her fraud
claims with particularity. Dkt. 36 at 6-8. Defendants again move to dismiss plaintiff’s
fraud claims on three grounds. First, defendants contend that the SAC, like the FAC, is
not pled with the particularity required by Rule 9(b). Second, defendants argue that
plaintiff has not alleged that she relied on any misrepresentations about her appraisals.
Third, defendants assert that plaintiff has not alleged how she was damaged by any
alleged misrepresentations about her appraisals.
The elements of fraud in California are: “(1) a misrepresentation (false
representation, concealment, or nondisclosure); (2) knowledge of falsity (or scienter); (3)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
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Case No.

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October 6, 2014

Title

BARBARA WALDRUP V. COUNTRYWIDE FINANCIAL
CORPORATION ET AL.

intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting
damage.” Robinson Helicopter Co. v. Dana Corp., 34 Cal. 4th 979, 990 (2004).
The Court finds that plaintiff has not pled her fraud claims with the required
specificity. Namely, plaintiff has not identified the specific corporate individuals who
made the representations regarding the appraisals and the authority of those individuals to
make such representations. See, e.g., Serna v. Bank of Am., N.A., 2012 WL 2030705 at
*3 (C.D. Cal. June 4, 2012) (“The requirement of specificity in a fraud action against a
corporation requires the plaintiff to allege the names of the persons who made the
allegedly fraudulent representations, their authority to speak, to whom they spoke, what
they said or wrote, and when it was said or written.”) (internal quotation marks omitted).
Plaintiff resists this conclusion, and cites Moore v. Kayport Package Exp., Inc., 885 F.2d
531, 540 (9th Cir. 1989), for the proposition that the requirements of Rule 9(b) are
relaxed in cases of corporate fraud where “plaintiffs will not have personal knowledge of
all of the underlying facts.” Opp’n at 7-8. The Court does not doubt that some of the
underlying facts are exclusively “within the opposing party's knowledge,” Moore, 885
F.2d at 540, and thus cannot be pled by plaintiff with particularity at this juncture.
However, plaintiff does not explain why the identities of the LandSafe appraisers and
Countrywide employees who allegedly transmitted the appraisals to plaintiff are not
within her personal knowledge. See, e.g., SAC ¶ 62 (“LandSafe provided the 2004
Appraisal to Countrywide Home Loans and Countrywide Home Loans transmitted the
2004 Appraisal to Plaintiff.”).2 Accordingly, the Court finds that plaintiff has not pled
her common law fraud and RICO claims with sufficient particularity.
B.

Unjust Enrichment

Under California law, the elements of unjust enrichment are “receipt of a benefit
and unjust retention of the benefit at the expense of another.” Burger v. Home Depot
USA, Inc., 741 F.3d 1061, 1070 (9th Cir. 2014) (citing Lectrodryer v. SeoulBank, 77 Cal.
App. 4th 723, 726 (2000)). In dismissing plaintiff’s FAC, the Court found that plaintiff
had not stated claims for unjust enrichment because it “appear[ed] that plaintiff ha[d]
disclaimed any allegation that the appraisals which she received were inflated or
2

As discussed supra, defendants submitted plaintiff’s two appraisals and the Court
has taken judicial notice of them, albeit not for the truth of their contents.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

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Case No.

2:13-cv-08833-CAS(CWx)

October 6, 2014

Title

BARBARA WALDRUP V. COUNTRYWIDE FINANCIAL
CORPORATION ET AL.

otherwise inaccurate.” Dkt. 36 at 10. However, plaintiff has not disclaimed this
allegation in her SAC.
Instead, plaintiff expressly alleges that defendants “prepared manipulated and/or
inflated appraisals on home loans originated by Countrywide . . . [and] then charged
[p]laintiff and members of the Class between $300 and $600 for phony, manipulated socalled USPAP appraisals.” SAC ¶ 137, 138. As discussed above, plaintiff essentially
alleges that she was overcharged for her appraisals—indeed, she alleges that she paid for
a service she did not receive. Id. ¶ 75. See Opp’n at 14 (“[B]ecause Defendants
intentionally manipulated and inflated the ‘value’ of her property . . . they did not actually
perform the appraisal service she had bargained for in paying Landsafe’s ‘appraisal’
fees.”).
Defendants contend, as they have before, that plaintiff cannot state a claim for
unjust enrichment because she “received the benefit of her bargain by obtaining the
required appraisals for which she paid.” Mot. Dism. at 19. However, plaintiff alleges
that she paid for an appraisal that would comply with USPAP protocol—i.e., an appraisal
that would not contain an inflated, predetermined value. Taking these allegations as true,
plaintiff did not receive the benefit of her bargain and defendants have been unjustly
enriched by retaining plaintiff’s appraisal payments. Accordingly, dismissal of plaintiff’s
unjust enrichment claim is not warranted.
C.

UCL

Defendants argue that plaintiff has not adequately alleged unlawful, unfair, or
fraudulent conduct sufficient to support a claim under the UCL. The UCL prohibits
“unfair competition,” which is defined as any “unlawful, unfair or fraudulent business act
or practice.” To establish a violation of the UCL, a plaintiff may establish a violation
under any one of these prongs. An unlawful business practice is one that is “prohibited
by law, where possible sources of law are defined broadly.” Multimedia Patent Trust v.
Microsoft Corp., 525 F. Supp. 2d 1200, 1217 (S.D. Cal. 2007) (citation omitted). As
discussed above, the Court concludes that plaintiff has adequately alleged a claim for
unjust enrichment. This claim for unjust enrichment, in turn, supplies a basis for a claim
under the “unlawful” prong of the UCL. See Korea Supply Co. v. Lockheed Martin
Corp., 29 Cal.4th 1134, 1143 (2003) (explaining that the UCL “‘borrows’ violations from
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
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Case No.

2:13-cv-08833-CAS(CWx)

October 6, 2014

Title

BARBARA WALDRUP V. COUNTRYWIDE FINANCIAL
CORPORATION ET AL.

other laws by making them independently actionable as unfair competitive practices”).
The Court therefore does not address whether plaintiff has sufficiently alleged a claim
under the “unfair” or “fraudulent” prongs of the UCL.
V.

CONCLUSION

In accordance with the foregoing, the Court hereby dismisses without prejudice
plaintiff’s second, third, and fourth claim. Defendants’ motion to dismiss is otherwise
DENIED. Plaintiff shall have until October 27, 2014, to file an amended complaint
addressing the deficiencies identified herein.
IT IS SO ORDERED.
00
Initials of Preparer

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