Richard P. Dagres et al v. Countrywide Bank, N.A. et al

Filing 59

MINUTES (IN CHAMBERS) by Judge Christina A. Snyder: The Court hereby GRANTS Defendants Motion to Dismiss 46 . The Court dismisses with prejudice plaintiff's first, second, fourth, fifth, sixth, seventh, tenth, and eleventh claims. All other cla ims are dismissed without prejudice. Plaintiff shall have until 8/4/2014, to file an amended complaint correcting the deficiencies identified herein. Plaintiff shall not add any claims not currently pled in the Second Amended Complaint. Plaintiff is admonished that any amended pleading must clearly set forth the factual basis of plaintiff's claims, including what communications, if any, plaintiff has had with defendants. Court Reporter: Not Present. (gk)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

‘O’

Case No.

2:14-cv-01339-CAS(CWx)

Title

RICHARD P. DAGRES V. COUNTRYWIDE BANK, N.A. ET AL

Present: The Honorable

Date

July 10, 2014

CHRISTINA A. SNYDER

Catherine Jeang
Deputy Clerk

Not Present
Court Reporter / Recorder

N/A
Tape No.

Attorneys Present for Plaintiff:

Attorneys Present for Defendants

Not Present

Not Present

Proceedings:

(In chambers:) MOTION TO DISMISS (dkt. 46, filed June 13,
2014)

The Court finds this motion appropriate for decision without oral argument. Fed.
R. Civ. P. 78; Local Rule 7-15. Accordingly, the hearing date of July 14, 2014, is
vacated, and the matter is hereby taken under submission.
I.

INTRODUCTION AND BACKGROUND

Pro se plaintiff Richard Dagres filed this case in this Court on February 21, 2014,
against defendants Bank of America, N.A. (“BOA”), Deutsche Bank National Trust
Company (“Deutsche Bank”), Greenwich Capital Financial Products, Inc. (“GFCP”),
Greenwich Capital Acceptance, Inc. (“GCA”), Countrywide Home Loan Servicing LP
(“Countrywide”), MERSCORP Inc. (“MERS”), Nationstar Mortgage (“Nationstar”),
ReconTrust Comapny N.A. (“ReconTrust”), and Does 1 through 20, inclusive.1 The
operative second amended complaint (“SAC”) asserts claims for (1) lack of standing to
foreclose, (2) fraud in the concealment, (3) fraud in the inducement, (4) intentional
infliction of emotional distress (“IIED”), (5) quiet title, (6) slander of title, (7) declaratory
relief, (8) violation of the Truth in Lending Act (“TILA”), 15 U.S.C. § 1601, (9) violation
of the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2601, (10)
rescission, (11) “beyond the statute of limitations,” and (12) “defective notices.”
In brief, plaintiff alleges that, on or about October 4, 2006, he obtained a $872,000
home mortgage loanfrom Countrywide Financial, which is now owned by defendant
1

On June 27, 2014, the parties stipulated to the dismissal of defendants GFCP and
GCA with prejudice. Dkt. 55.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

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Case No.

2:14-cv-01339-CAS(CWx)

July 10, 2014

Title

RICHARD P. DAGRES V. COUNTRYWIDE BANK, N.A. ET AL

BOA. SAC ¶ 31. This mortgage was secured by a deed of trust in favor of Countrywide
against plaintiff’s residence located at 16815 Parthenia Street, Northridge, CA 91343
(“the property”). Id. ¶¶ 12, 31. Plaintiff alleges that her loan was improperly transferred
to defendant Deutsche Bank, for the purpose of packaging it into a mortgage-backed
security. Id. ¶¶ 32–57. At some point subsequent to this transfer, a notice of default was
recorded against plaintiff, and defendants are now attempting to foreclose on the
property. Id. ¶ 233.
On June 13, 2014, defendants BOA, Countrywide Home, Deutsche Bank, MERS,
Nationstar, and ReconTrust filed a motion to dismiss the SAC. Dkt. 46. On June 23,
2014, plaintiff opposed this motion, dkt. 54, and on June 30, 204, defendants replied, dkt.
56. After considering the parties’ arguments, the Court finds and concludes as follows.
II.

LEGAL STANDARD

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
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

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Case No.

2:14-cv-01339-CAS(CWx)

July 10, 2014

Title

RICHARD P. DAGRES V. COUNTRYWIDE BANK, N.A. ET AL

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
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).
III.

ANALYSIS
A.

Claims for Lack of Standing to Foreclose, Fraud in the Concealment,
Quiet Title, Slander of Title, Declaratory Relief, and Rescission

The gravamen of these six claims is that defendants cannot foreclose on plaintiff’s
property because the promissory note was improperly repackaged into a mortgage-backed
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

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Case No.

2:14-cv-01339-CAS(CWx)

July 10, 2014

Title

RICHARD P. DAGRES V. COUNTRYWIDE BANK, N.A. ET AL

security. SAC ¶¶ 15-30, 32-56, 59-60, 123, 169-70, 181, 189. Plaintiff argues that this
securitization process deprived defendants of the authority to foreclose on the property.
Plaintiff particularly objects that any transfer of his note was not performed in accordance
with the Pooling and Servicing Agreement (“PSA”) governing securitization of his
mortgage. Id. ¶ 46.
In ruling on plaintiff’s application for a temporary restraining order, the Court
previously found that these claims had no probability of success on the merits, because
the securitization of plaintiff’s promissory note did not deprive defendants of the power
to foreclose on the property. This reasoning has subsequently been confirmed by
numerous California Court of Appeal decisions. See, e.g., Castro v. Aurora Loan Servs.,
LLC, B247114, 2014 WL 2446719 (Cal. Ct. App. June 2, 2014) (“Any alleged
securitization issues did not render the plaintiff’s default irrelevant, and thus allegations
of an improper securitization did not give rise to an actual, present controversy involving
the plaintiff.”); Keshtgar v. U.S. Bank, N.A., 2014 WL 2943240 (Cal. Ct. App. June 30,
2014); Spicuzza v. U.S. Bank, Nat’l Ass’n, 2014 WL 2735769 (Cal. Ct. App. June 17,
2014); Fontes v. U.S. Bank Nat’l Ass’n, 2014 WL 2772402 (Cal. Ct. App. June 19,
2014); Yvanova v. New Century Mortgage Corp., 226 Cal. App. 4th 495, 502 (2014);
Peng v. Chase Home Fin. LLC, 2014 WL 1373784 (Cal. Ct. App. Apr. 8, 2014).
Accordingly, because plaintiff’s SAC alleges essentially the same securitization-based
contentions as plaintiff’s original complaint, the Court finds that these claims must be
dismissed. Moreover, as it does not appear any amendment could cure the fundamental
deficiencies with plaintiff’s securitization-based claims, this dismissal shall be with
prejudice. See Schreiber Distrib. Co., 806 F.2d at 1401.
B.

Claim for “Beyond Statue of Limitations”

Plaintiff also asserts that defendants are attempting to foreclose more than four
years after his last payment on the loan, placing them outside the four year statute of
limitations on breach of contract actions. This claim fails, however, as defendants are not
asserting a claim for breach of contract, but rather exercising the power of sale contained
within the deed of trust. California law expressly provides that the statute of limitations
on a power of sale is either 10 years after the last date fixed for payment of the debt, or
“60 years after the date the instrument that created the security interest was recorded.”

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

‘O’

Case No.

2:14-cv-01339-CAS(CWx)

July 10, 2014

Title

RICHARD P. DAGRES V. COUNTRYWIDE BANK, N.A. ET AL

Cal. Civ. Code § 882.020; see also Ung v. Koehler, 135 Cal. App. 4th 186, 194 (2005)
(analyzing the effects of § 882.020).
Plaintiff argues that this Court should instead apply the four year statute of
limitations for contracts, because his promissary note has been separated from the deed of
trust on his property during the securitization process. Plaintiff cites no authority for the
proposition that securitization alters the statute of limitation imposed by § 882.020.
Accordingly, the Court finds this argument unpersuasive, and thus dismisses this claim.
As it does not appear that plaintiff could allege facts that would make defendants’ efforts
to foreclose untimely, this dismissal shall be with prejudice. See Schreiber Distrib. Co.,
806 F.2d at 1401.
C.

Claim for IIED.

To state a claim for IIED, a plaintiff must allege: “(1) extreme and outrageous
conduct by the defendant with the intention of causing, or reckless disregard of the
probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme
emotional distress; and (3) actual and proximate causation of the emotional distress by
the defendant’s outrageous conduct.” Hughes v. Pair, 46 Cal. 4th 1035, 1050 (2009)
(citing Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 1013 (1993)). A
defendant’s conduct is considered “outrageous” when it is “so extreme as to exceed all
bounds of that usually tolerated in a civilized community.” Hughes, 46 Cal. 4th at
1050–51. Here, plaintiff contends that defendants’ efforts to foreclose on the property
were “outrageous” because they threatened plaintiff with loss of his property. SAC ¶
162.
Defendants argue that plaintiff’s claim should be dismissed because attempting to
foreclose on property is not sufficiently “outrageous” to support a claim for IIED. The
Court agrees. As discussed above, plaintiff has not alleged that a foreclosure sale has
taken place. The weight of authority indicates that the foreclosure proceedings are not
sufficiently outrageous to support a claim for IIED. In Mehta v. Wells Fargo Bank, N.A.,
737 F. Supp. 2d 1185 (S.D. Cal. 2010), for example, the court found that it was not
outrageous for a bank to lawfully foreclose on a plaintiff’s property, even though one of
the bank’s employees allegedly told plaintiff that the foreclosure sale would not occur.
Similarly, in Davenport v. Litton Loan Servicing, LP, 725 F. Supp. 2d 862, 884 (N.D.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

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Case No.

2:14-cv-01339-CAS(CWx)

July 10, 2014

Title

RICHARD P. DAGRES V. COUNTRYWIDE BANK, N.A. ET AL

Cal. 2010), the court found that while “home foreclosure is a terrible event and likely to
be fraught with unique emotions and angst,” a foreclosing party does not act outrageously
if it asserts its right to foreclosure in good faith. See also Ross v. Creel Printing & Publ’g
Co., Inc., 100 Cal. App. 4th 736, 745 n.4 (2002) (“The assertion of an economic interest
in good faith is privileged, even if it causes emotional distress.”). Accordingly, because
plaintiff has not sufficiently pled outrageous conduct, the Court finds that the IIED claim
should be dismissed with prejudice.
D.

Fraud in the Inducement

Plaintiff asserts a claim for fraud in the inducement. A claim for fraud consists of:
(1) a misrepresentation, (2) made with knowledge of its falsity; (3) with an intent to
induce reliance; combined with (4) justifiable reliance; and (5) resulting damage. 5
Witkin, Summ. Cal. Law, Torts § 772 (10th ed.2005); see also Terra Ins. Co. v. N.Y. Life
Inv. Mgmt. LLC, 717 F. Supp. 2d 883, 890 (N.D. Cal. 2010). These claims are subject to
the heightened pleading standard of Federal Rule of Civil Procedure 9(b), which requires
that “[a]verments of fraud . . . be accompanied by ‘the who, what, when, where, and how’
of the misconduct charged.” Vess v. Ciba–Geigy Corp. USA, 317 F.3d 1097, 1106 (9th
Cir. 2003). Here, Plaintiff alleges that he was defrauded into taking out a “negative
amortization no doc loan.” Plaintiff asserts that: “The Mortgage Broker working on
commission falsified my income on the application, overappraised the home, and got me
cash out that I later could not afford when the payments doubled.” SAC ¶ 143.
The Court finds that this claims fails, for two reasons. First, it does not appear that
plaintiff has alleged justifiable reliance. To show justifiable reliance in this case, plaintiff
would have to allege that he purchased the mortgage on the strength of representations
that later turned out to be untrue. Here, however, plaintiff concedes that he “willingly
participated in this scheme.” SAC ¶ 144. If plaintiff “willingly participated” in the
scheme to falsify his income and to procure him a “negative amortization no doc loan,”
plaintiff did not justifiably rely on any representations. Second, plaintiff’s fraud claim is
not pled with particularity, as required by Fed. R. Civ. P. 9(b). Plaintiff makes general
accusations about misconduct in the mortgage industry, see id. ¶¶ 145-148, but does not
provide any detail about what representations were made, and why those representations
are untrue. Accordingly, the Court finds that plaintiff has failed to state a claim for fraud,
and dismisses the claim without prejudice.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:14-cv-01339-CAS(CWx)

Title

RICHARD P. DAGRES V. COUNTRYWIDE BANK, N.A. ET AL
E.

Date

‘O’

July 10, 2014

Claim for Violation of TILA

Plaintiff alleges that defendants violated TILA, 15 U.S.C. § 1601 et seq., by failing
to adequately inform plaintiff of the risks associated with adjustable-rate mortgages.
SAC ¶¶ 197-202. Defendants respond that plaintiff’s TILA claims are (1) insufficiently
pled and (2) time-barred because TILA’s three-year statute of limitations is triggered
when the borrower enters the loan agreement with the creditor. Mot. 21-22. Defendants
also argue plaintiff is not entitled to rescission under TILA because that remedy is
unavailable to residential mortgages. Id. at 23.
The Court finds that plaintiffs do not allege a valid claim for damages under TILA.
Individual actions for damages under TILA must be filed within one year of the date of
the occurrence of the alleged violation. 15 U.S.C. § 1640(e). Ordinarily, any failure to
disclose necessary information occurs, if at all, at the time the loan documents are signed.
Meyer v. Ameriquest Mortg. Co., 342 F.3d 899, 902 (9th Cir. 2003). Here, plaintiff
signed his loan documents on October 4, 2006. SAC ¶ 31. Plaintiff filed his complaint in
this Court on February 21, 2014. More than four years passed between the time when
plaintiff signed the loan documents and the time when he filed his complaint. Therefore,
the Court finds that the claim is time-barred.
Plaintiff contends that the limitations period should be tolled because defendants
failed to “effectively provide the required disclosures and notices” required under TILA.
SAC ¶ 199. The Ninth Circuit has held that equitable tolling of claims for damages under
TILA may be appropriate “in certain circumstances,” and can operate to “suspend the
limitations period until the borrower discovers or had reasonable opportunity to discover
the fraud or nondisclosures that form the basis of the TILA action.” King v. California,
784 F.2d 910, 914–15 (9th Cir. 1986). However, when a plaintiff does not allege any
facts demonstrating that he or she could not have discovered the alleged violations by
exercising due diligence, dismissal may be appropriate. See Meyer, 342 F.3d at 902–03
(declining to apply equitable tolling to TILA claim where plaintiff was in full possession
of all loan documents and did not allege any concealment of loan documents or other
action that would have prevented discovery of the alleged violations).
The Court finds that plaintiff has failed to plead sufficient facts to demonstrate that
he could not have discovered the alleged violations by exercising due diligence, and
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

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Case No.

2:14-cv-01339-CAS(CWx)

July 10, 2014

Title

RICHARD P. DAGRES V. COUNTRYWIDE BANK, N.A. ET AL

therefore that plaintiff is not entitled to equitable tolling of his TILA damages claim.
Plaintiff has possessed the allegedly deficient mortgage documentation since October
2006. Courts in the Ninth Circuit have found equitable tolling inappropriate under
similar circumstances. See Akhavein v. Argent Mortg. Co., 2009 WL 2157522, at *3
(N.D. Cal. July 18, 2009) (finding that even though plaintiffs alleged that they were not
familiar with mortgage transactions and the disclosures were unclear, plaintiffs failed to
sufficiently plead entitlement to equitable tolling since they did not provide facts
suggesting they could not have discovered the TILA violations through due diligence);
see also Suguri v. Wells Fargo Bank, 2009 WL 2486546, at *3 (C.D. Cal. Aug. 7, 2009)
(granting dismissal under similar circumstances). Thus, this claim is barred by TILA’s
one-year statute of limitations. Accordingly, the Court DISMISSES plaintiff’s claim for
damages under TILA without prejudice.
The Court also finds that plaintiff does not have a valid claim for rescission under
TILA because TILA does not apply to “residential mortgage transactions.” See 12 C.F.R.
§ 226.23(a); Sitanggang v. Countrywide Home Loans, Inc., 419 Fed. App’x 756, 757 (9th
Cir. 2011) (affirming the district court’s decision to dismiss plaintiff’s TILA claim for
rescission because the loan used to acquire plaintiff’s property qualified as a “residential
mortgage transaction.”). Here, TILA’s right of rescission does not apply because
plaintiff’s loan was used to purchase a single family residence.
F.

Claim for Violation of RESPA

Plaintiff further alleges that defendants violated RESPA, 12 U.S.C. § 2601 et seq.,
because unspecified payments sent among them “were misleading and designed to create
a windfall.” See SAC ¶¶ 207-211. Plaintiff claims the payments violated a two-part test
promulgated by the U.S. Department of Housing and Urban Development (HUD) in
1999. Id. Defendants contend that the alleged RESPA violations are impermissibly
vague as to who made and received the payments and which sections of RESPA this
conduct violated. Mot. 23. Defendants note that payments to mortgage brokers are
exempt from the statute’s prohibition of “kickbacks and unearned fees.” Id.; see also 12
U.S.C. § 2607(c)(3). Defendants also argue that RESPA claims are subject to either a
one or three-year statute of limitations, beginning from the date the loan closed. Mot. 23.
Thus, defendants argue, the RESPA claim is time-barred as well.

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

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Case No.

2:14-cv-01339-CAS(CWx)

July 10, 2014

Title

RICHARD P. DAGRES V. COUNTRYWIDE BANK, N.A. ET AL

The Court finds that plaintiff’s RESPA claim fails to meet the requirements
of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a) requires sufficient
allegations to put the defendants fairly on notice of the claims against them. McKeever v.
Block, 932 F.2d 795, 797 (9th Cir. 1991). A plaintiff must allege with at least some
degree of specificty overt acts which defendants engaged in that support plaintiff’s claim.
McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996). Here, plaintiff does not explain
what payments he refers to, who made them, or why they would violate RESPA. Nor
does he explain how the HUD test he cites applies to the defendants’ conduct, or why the
test creates a private right of action. Thus, the RESPA claim fails to adequately notify
defendants of the conduct that plaintiff alleges to be wrongful. Accordingly, the Court
DISMISSES plaintiff’s RESPA claim without prejudice.
G. “Defective Notices”
The SAC asserts a claim for “defective notices.” The bulk of this claim
recapitulates plaintiff’s assertion that the securitization of his loan deprived defendants of
the authority to foreclose. See, e.g., SAC ¶¶ 237-244, 252-266. These allegations do not
state a claim, for the reasons set forth above.
However, this claim also asserts that defendants violated Cal. Civ. Code § 2923.5.
Cal. Civ. Code § 2923.5 provides that a mortgagee or authorized agent wishes to file a
notice of default must “contact the borrower in person or by telephone in order to assess
the borrower’s financial situation and explore options for the borrower to avoid
foreclosure,” at least thirty days before filing a default notice. Cal. Civ. Code § 2923.5(a)
“A notice of default recorded pursuant to Section 2924 shall include a declaration that the
mortgage servicer has contacted the borrower, has tried with due diligence to contact the
borrower as required by this section, or that no contact was required because the
individual did not meet the definition of ‘borrower’ pursuant to subdivision (c) of Section
2920.5.” Cal. Civ. Code § 2923.5(b). The remedy for violation of this statute is
postponement of the scheduled foreclosure until there is compliance by the foreclosing
party. Mabry v. Superior Court, 185 Cal. App. 4th 208 (2010).
Here, plaintiff alleges that defendants’ Notice of Default attaches a declaration
from Christopher Dar, a “Mortgage Servicing Specialist” at BOA. SAC ¶ 246. This
declaration stated that BOA exercised due diligence in trying to contact plaintiff, but was
unable to contact him prior to filing the Notice of Default. Id. ¶ 247. Plaintiff asserts that
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
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Case No.

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Title

RICHARD P. DAGRES V. COUNTRYWIDE BANK, N.A. ET AL

this declaration “is a total fabrication,” id. ¶ 248, and that he was never contacted by Mr.
Dar, id. ¶ 249.
The Court finds that these allegations do not state a claim for violation of
Cal. Civ. Code § 2923.5. Section 2923.5 does not require that Mr. Dar have contacted
plaintiff personally. Instead, it is sufficient that Bank of America or its agents have “tried
with due diligence to contact the borrower.” Because the SAC as currently pled only
alleges that plaintiff never spoke with Mr. Dar, and specifically does not allege that
plaintiff was not contacted by other individuals at BOA regarding foreclsure, the SAC
does not state a claim for violation of § 2923.5. However, because plaintiff may plead
additional facts to show he has a claim under § 2923.5, namely that he was not contacted
by any other BOA agent prior to the filing of the Notice of Default, this dismissal shall be
without prejudice.
III.

CONCLUSION

In accordance with the foregoing, the Court hereby GRANTS defendants
motion to dismiss. The Court dismisses with prejudice plaintiff’s first, second, fourth,
fifth, sixth, seventh, tenth, and eleventh claims. All other claims are dismissed without
prejudice. Plaintiff shall have until August 4, 2014, to file an amended complaint
correcting the deficiencies identified herein. Plaintiff shall not add any claims not
currently pled in the SAC. Plaintiff is admonished that any amended pleading must
clearly set forth the factual basis of plaintiff’s claims, including what communications, if
any, plaintiff has had with defendants.
IT IS SO ORDERED.

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