Ronald D. Melton v. Bank of America, National Association, et al

Filing 31

ORDER ORDER GRANTING DEFENDANT GREEN TREE SERVICING, LLCS MOTION TO DISMISS 9 by Judge Dean D. Pregerson: All causes of action against Green Tree are DISMISSED, with leave to amend. Any amended complaint shall be filed withinfourteen days of the date of this Order. (SEE DOCUMENT FOR FURTHER DETAILS) (vv)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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RONALD D. MELTON,

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Plaintiff,

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v.
BANK OF AMERICA, N.A.; GREEN
TREE SERVICING, LLC;
NORTHWEST TRUSTEE SERVICES,
INC.;,

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Defendants.
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Case No. CV 15-06391 DDP (AGRx)

ORDER GRANTING DEFENDANT GREEN
TREE SERVICING, LLC’S MOTION TO
DISMISS
[Dkt. 9]

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Presently before the court is Defendant Green Tree Servicing,

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LLC (“Green Tree”)’s Motion to Dismiss.

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submissions of the parties, the court grants the motion and adopts

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the following Order.

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I.

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Having considered the

Background
In 2002, Plaintiff executed a promissory note secured by a

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Deed of Trust to property located at 1154 N. Sycamore Ave., No. 7,

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in Los Angeles, California.

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the property was foreclosed upon.

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rescinded in December 2010.

(Complaint ¶ 1.)
(Id. ¶ 10.)

(Id. ¶ 11.)

In September 2010,
The foreclosure was

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As a result of the foreclosure, Plaintiff’s property was

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reassessed, and his tax liability, and payments to the note holder,

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increased.

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County Tax Assessor’s Office and began withholding payments to the

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note holder.

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loan and deed to Defendant Green Tree.

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initiated foreclosure proceedings.

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causes of action for breach of contract, wrongful foreclosure, and

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negligence.

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II.

(Compl. ¶ 12.)

Plaintiff protested to the Los Angeles

(Id. ¶¶ 14-15.)

The note holder sold Plaintiff’s
(Id. ¶ 17.) Green Tree then

(Id. ¶ 18.)

Plaintiff alleges

Green Tree now moves to dismiss.

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.”

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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.”

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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

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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).

Ashcroft v. Iqbal, 556 U.S.

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

Iqbal, 556 U.S. at 678.

Although a complaint

Conclusory allegations or

Id. at 678 (citations and internal

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Resnick

In

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“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.

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

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“above the speculative level.” Twombly, 550 U.S. at 555.

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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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Plaintiffs

Iqbal,

III. Discussion

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A.

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The elements of a breach of contract claim are (1) the

Breach of Contract

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existence of a contract, (2) performance or excuse for

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nonperformance, (3) defendant’s breach, and (4) damages.

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West Realty, LLC v. Goldman, 51 Cal.4th 811, 821 (2011); See also

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Rockridge Trust v. Wells Fargo, N.A., 985 F.Supp.2d 1110, 1141

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(N.D. Cal. 2013).

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loan contract, Green Tree argues that Plaintiff has not adequately

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pleaded performance or excuse for nonperformance.

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Complaint itself

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payments in March 2013.

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July 2014.

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Oasis

Although the Complaint alleges a breach of the

Indeed, the

alleges that Plaintiff stopped making loan
(Compl. ¶ 15.)

A default was recorded in

(Green Tree’s Request for Judicial Notice, Ex. 2.)

Plaintiff’s only response is that he is excused from tendering

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the full amount of the loan “while the tax reassessment issue

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remains unresolved.”

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however, is related to Plaintiff’s wrongful foreclosure claim,

(Opposition at 5.)

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The tender requirement,

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discussed below, and not to Plaintiff’s breach of contract claim.1

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Absent any allegation of performance or excuse for nonperformance,

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Plaintiff’s breach of contract claim against Green Tree is

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dismissed.

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B.

Wrongful Foreclosure

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Plaintiff does not dispute that he is required to allege

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tender of the amount of his indebtedness in order to maintain a

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cause of action for wrongful foreclosure.

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Savings Bank, 43 Cal.App.4th 1101, 1109 (1996).

See Abdallay v. United
Tender may not be

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required, however, when imposition of the rule would be

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inequitable.

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No. 12-09166 DDP, 2013 WL 140248 *1 (C.D. Cal. Jan. 10, 2013).

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See, e.g., Bok Sil Rah v. Aurora Loan Servs., LLC,

Plaintiff contends that such an exception applies here “since

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Plaintiff is being drastically overcharged due to the unresolved

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tax reassessment issue.”

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that this court take judicial notice of two letters sent by the Los

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Angeles County Assessor’s Office.

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first letter, sent in June 2012, acknowledges that the Assessor’s

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ownership records were corrected to reflect Plaintiff’s continued

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ownership.

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reversed to restore the 2001 value. . . . “[I}f appropriate, new

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tax . . . refunds will be issued.”

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December 2012, indicates that the recalculation of Plaintiff’s tax

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liability is in process.

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facts recited in these letters “are disputed by Plaintiff,” he

(Opposition at 6.)

Green Tree requests

(Green Tree RJN, Ex. 1.)

The

The letter further states, “The reappraisal is being

(Id.)

(Id.)

A second letter, sent in

Although Plaintiff argues that the

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To the extent Plaintiff intends to argue that the lack of
resolution of the tax reassessment issue required him to withhold
payments, that argument is not persuasive, as discussed below.
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provides no explanation why the accuracy of the calculations or

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facts therein can reasonably be questioned.

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Given the apparent resolution of the tax liability issue, this

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court cannot conclude that imposition of the tender rule would be

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inequitable.

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dismissed, with leave to amend.

See F.R.E. 201(b)(2).2

Plaintiff’s wrongful foreclosure claim is, therefore,

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C.

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The elements of a negligence claim are: (1) the existence of a

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Negligence

duty to exercise due care, (2) breach of that duty, (3) causation,

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and (4) damages.

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(2001).

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plaintiff is a prerequisite to establishing a claim for

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negligence.”

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Cal.App.3d 1089, 1095 (1991).

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institution owes no duty of care to a borrower when the

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institution’s involvement in the loan transaction does not exceed

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the scope of its conventional role as a mere lender of money.”

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Nymark, 231 Cal. App. 3d at 1096.

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Merrill v. Navegar, Inc., 26 Cal.4th 465, 500

The “existence of a duty of care owed by a defendant to a

Nymark v. Heart Fed. Savings & Loan Assn., 231
“[A]s a general rule, a financial

As Plaintiff correctly points out, the Nymark rule is not

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absolute. In California, courts employ a six factor test to

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determine whether a financial institution owes a duty of care to a

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borrower.

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transaction was intended to affect the plaintiff, [2] the

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foreseeability of harm to him, [3] the degree of certainty that the

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plaintiff suffered injury, [4] the closeness of the connection

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between the defendant’s conduct and the injury suffered, [5] the

The court must consider “[1] the extent to which the

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Plaintiff appears to mistakenly refer to the Federal Rules
of Civil Procedure rather than the Federal Rules of Evidence.
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moral blame attached to the defendant’s conduct, and [6] the policy

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of preventing future harm.”

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Irving, 49 Ca.2d 647 (1958)).

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Biankanja factors, neither his opposition nor the Complaint sets

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forth any specific facts necessary to a Biakanja analysis.

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Plaintiff’s negligence claim is, therefore, dismissed.

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IV.

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Id. at 1098 (citing Biakanja v.
Although Plaintiff recites the

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

is GRANTED.

All causes of action against Green Tree are DISMISSED,

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with leave to amend.

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fourteen days of the date of this Order.

Any amended complaint shall be filed within

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IT IS SO ORDERED.
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Dated: May 16, 2016
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DEAN D. PREGERSON
United States District Judge

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