Menelaos Saridakis v. JPMorgan Chase Bank NA et al.

Filing 19

ORDER GRANTING DEFENDANT JP MORGAN CHASE BANKS MOTION TO DISMISS 7 by Judge Dean D. Pregerson: Chases Motion to Dismiss is GRANTED. Plaintiffs First and Second Causes of Action are dismissed with prejudice. Plaintiffs Third through Sixth Causes of Action are dismissed with leave to amend. Any amended complaint shall be filed within ten days of the date of this Order. (lc). Modified on 2/11/2015 (lc).

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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MENELAOS SARIDAKIS, an
individual,

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Plaintiff,
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v.
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JPMORGAN CHASE BANK, a New
York corporation; ALBERTELLI
LAW PARTNERS CALIFORNIA, PA,
a California corporation,
Defendants.
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Case No. CV 14-06279 DDP (Ex)
ORDER GRANTING DEFENDANT JP
MORGAN CHASE BANK’S MOTION TO
DISMISS

[Dkt. 7]

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Presently before the court is Defendant JPMorgan Chase Bank,

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N.A. (“Chase” or “Defendant”)’s Motion to Dismiss.

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considered the submissions of the parties, the court grants the

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motion and adopts the following order.

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I.

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Having

Background
In July 2016, Plaintiff executed a Deed of Trust to real

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property located at 607 S. Gertruda Avenue in the city of Redondo

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Beach as security for a $1,172,500.00 mortgage against the

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property.

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Notice (“RJN”), Ex. 1 at 3.)

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(Compl. ¶¶ 2, 10.)

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(Complaint ¶¶ 7-8; Defendant’s Request for Judicial
Chase is the mortgage servicer.

On March 12, 2010, Chase recorded a Notice of Default.

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(Compl. ¶ 15.)

The Complaint alleges that “[d]uring the year 2013,

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Plaintiff submitted a completed, legible and satisfactory loan

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modification application” to Chase.

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2014, Chase recorded a Substitution of Trustee listing itself as

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beneficiary and naming Defendant Albertelli Law Partners

(Id. ¶ 28.)

On January 8,

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California, PA (“ALAW”) as trustee.

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2014, ALAW recorded a Notice of Trustee’s Sale with a sale date of

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April 10, 2014.

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postponed.

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of action related to foreclosure proceedings.

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dismiss the Complaint.

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II.

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(Compl. ¶¶ 20-21.)

(Id. ¶ 24.)

(RJN Ex. 5).

On March 20,

The sale date was later

Plaintiff’s Complaint alleges eight causes
Chase now moves to

Legal Standard
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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“accept as true all allegations of material fact and must construe

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those facts in the light most favorable to the plaintiff.” Resnick

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

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need not include “detailed factual allegations,” it must offer

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“more than an unadorned, the-defendant-unlawfully-harmed-me

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accusation.”

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allegations that are no more than a statement of a legal conclusion

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

Iqbal, 556 U.S. at 678.

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Although a complaint

Conclusory allegations or

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“are not entitled to the assumption of truth.” Id. at 679.

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other words, a pleading that merely offers “labels and

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conclusions,” a “formulaic recitation of the elements,” or “naked

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assertions” will not be sufficient to state a claim upon which

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relief can be granted.

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quotation marks omitted).

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In

Id. at 678 (citations and internal

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

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assume their veracity and then determine whether they plausibly

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

Plaintiffs

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must allege “plausible grounds to infer” that their claims rise

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“above the speculative level.”

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“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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556 U.S. at 679.

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III. Discussion

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Twombly, 550 U.S. at 555.

Iqbal,

As an initial matter, the court notes that all of Plaintiff’s

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authorities regarding the legal standard predate Iqbal and Twombly.

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Plaintiffs’ arguments in opposition to Chase’s motion appear to be

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based upon the resulting misapprehension of the relevant standard.

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In any event, Plaintiff does not oppose dismissal of his Second

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Cause of Action.

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causes of action in turn.

(Opposition at 7.)

The court addresses the other

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A.

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Plaintiff’s brings a cause of action for injunctive relief to

Injunctive Relief

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enjoin violations of California Civil Code § 2924.12.

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33.)

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action.

(Compl. ¶

Injunctive relief, however, is a remedy, not a cause of
Rosenfeld v. JPMorgan Chase Bank, N.A., 732 F.Supp.2d 952,
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975 (N.D. Cal. 2010).

Moreover, as Plaintiff’s Complaint appears

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to recognize, § 2924.12(a)(1) states that “a borrower may bring an

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action for injunctive relief to enjoin a material violation of

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Section 2923.55, 2923., 2923.7, 2923.9, 2923.11, or 2923.17.”

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Civil Code § 2924.12(a)(1).

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cause of action for an injunction, but rather provides for

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injunctive relief as a remedy for violations of other foreclosure-

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related statutes.

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Action is therefore dismissed with prejudice.

Cal.

Section 2924.12 does not create a

(Compl. ¶ 33.)

Plaintiff’s First Cause of

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B.

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California Civil Code § 2923.6(c) states: “If a borrower

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submits a complete application for a first lien loan modification .

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. . a mortgage servicer, mortgagee, trustee, beneficiary, or

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authorized agent shall not record a notice of default or notice of

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sale . . .” unless certain other conditions are met.

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Code § 2923.6(c).

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application is “‘complete’ when a borrower has supplied the

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mortgage servicer with all documents required by the mortgage

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servicer within the reasonable timeframes specified by the mortgage

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servicer.”

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Dual Tracking

Cal. Civil

Section 2923.6 also sets forth that an

California Civil Code § 2923.6(h).

Here, Plaintiff alleges only that “[d]uring the year 2013,

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Plaintiff submitted a completed, legible and satisfactory loan

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modification application” to Chase.

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conclusory allegation is insufficient to plead a claim under §

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2923.6(c).

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2014 WL 4359193 at *7 (C.D. Cal. Sept. 3, 2014); Woodring v. Ocwen

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Loan Servicing, LLC, No. CV 14-3416 BRO, 2014 WL 3558716 at *7

(Compl. ¶ 28.)

Alone, that

See Stokes v. CitiMortgage, Inc., No. CV 14-278 BRO,

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(C.D. Cal. July 18, 2014).

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The Third Cause of Action is dismissed,

with leave to amend.

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C.

Failure to Re-Notice Foreclosure Sale

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Under California Civil Code § 2924(a)(5), “whenever a

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[trustee’s] sale is postponed for a period of at least 10 business

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days . . ., a mortgagee, beneficiary, or authorized agent shall

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provide written notice to a borrower regarding the new sale date

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and time . . . .”

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allege that the original sale date of April 10, 2014 was postponed

Cal. Civil Code § 2924(a)(5).

Here, Plaintiffs

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more than ten days, but Plaintiffs never received notice of the new

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sale date.

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however, that a trustee’s sale ever occurred or that a trustee’s

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sale was ever actually rescheduled.

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Defendants could have violated § 2924(a)(5) or how Plaintiff

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suffered any injury.

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Inc., No. CV 14-2571-AB, 2014 WL 6910334 at *4 (C.D. Cal. Dec. 8,

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2014).

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amend.

(Compl. ¶¶ 64-65.)

The Complaint does not allege,

It is unclear, therefore, how

See Penaloza v. Select Portfolio Servicing,

The Fourth Cause of Action is dismissed, with leave to

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D.

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Some courts have held “that an accounting is merely an

Accounting

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equitable remedy, and therefore cannot be maintained as an

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independent cause of action.”

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7275 GAF, 2011 WL 7637785 at *8 (C.D. Cal. Dec. 2, 2011).

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courts, however, citing Tesselle v. Mcloughlin, 173 Cal.App.4th 156

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(2009), have concluded that an accounting can exist as an

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independent equitable cause of action.

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Inc. v. Hon, No. 11-cv-5835 ODW, 2012 WL 1413681 at * 11 (C.D. Cal.

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Apr. 24, 2012); see also Baidoobonso-Iam v. Bank of Am., No. CV 10-

Fradis v. Savebig.com, No. CV 11-

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Other

See, e.g., Dahon North Am.,

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9171 CAS, 2011 WL 3103165 at *6 (C.D. Cal. Jul. 25, 2011) (“An

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accounting may take the form of either a legal remedy or an

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equitable claim.”).

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for an accounting requires that “a relationship exist[] between the

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plaintiff and defendant that requires an accounting, and that some

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balance is due the plaintiff that can only be ascertained by an

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accounting.”

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relationship giving rise to an accounting claim need not

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necessarily be a fiduciary one, courts typically require that it

Where independently viable, a cause of action

Tesselle, 173 Cal. App. 4th at 179.

Though the

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reflect some degree of confidentiality or closeness.

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Cal.App.4th at 179.; Dahon, 2012 WL 1413681 at *13; Fradis, 2011 WL

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7637785 at *9; Canales v. Fed. Home Loan Mortgage Corp., No. CV 11-

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2819 PSG, 2011 WL 3320478 at * 8 (C.D. Cal. Aug. 1, 2011).

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Tesselle, 173

Though the Complaint alleges that Plaintiff and Chase “share

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the relationship of mortgagor and mortgagee,” neither the Complaint

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nor Plaintiff’s opposition explain why this relationship is

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sufficiently special, confidential, or close to sustain a cause of

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action for an accounting.

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contrary, that a mortgagor-lender relationship does not suffice.

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See, e.g., Williams v. Wells Fargo Bank, N.A., No. EDCV 13-2075

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JVS, 2014 WL 1568857 at *9 (C.D. Cal. Jan. 27, 2014).

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

Indeed, courts often find, to the

Plaintiff’s

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E.

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Plaintiff’s claim for unlawful and fraudulent business

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practices under California Business & Professions Code § 17200 is

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premised upon the causes of action discussed above.

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70, 71).

Unlawful and Fraudulent Business Practices

(Compl. ¶¶ 68,

Those causes of action having been dismissed, Plaintiff’s

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Fifth Cause of Action under California Business & Professions Code

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§ 17200 is therefore also dismissed, with leave to amend.1

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IV.

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

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GRANTED.

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dismissed with prejudice.

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of Action are dismissed with leave to amend.

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shall be filed within ten days of the date of this Order.

Plaintiff’s First and Second Causes of Action are
Plaintiff’s Third through Sixth Causes
Any amended complaint

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IT IS SO ORDERED.

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Dated: February 11, 2015
DEAN D. PREGERSON
United States District Judge

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Because Plaintiff does not bring the Seventh and Eight
Causes of Action against Chase, the instant motion does not
encompass those claims.
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