Guy Hart et al v. Bayview Loan Servicing et al

Filing 33

MINUTES (IN CHAMBERS) by Judge Christina A. Snyder RE: Defendant Bayview Loan Servicing, LLC and Bank of America's Motion to Dismiss 7 and Defendant REO Partners, LLC's Motion to Dismiss 12 . Defendants' respective motions to dismiss are hereby GRANTED without prejudice. Plaintiff is granted 21 days to file an amended complaint addressing the deficiencies identified herein. Failure to do so may result in dismissal with prejudice. Court Reporter: Not Present. (gk)

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

‘O’

Case No.

2:16-cv-01309-CAS(AFMx)

Title

GUY HART, ET AL., v. BAYVIEW LOAN SERVICING, ET AL.

Present: The Honorable

Date

May 10, 2016

CHRISTINA A. SNYDER

Catherine Jeang
Deputy Clerk

Not Present
Court Reporter / Recorder

N/A
Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

Not Present

Not Present

Proceedings:

(IN CHAMBERS) - DEFENDANT BAYVIEW LOAN
SERVICING, LLC AND BANK OF AMERICA’S MOTION TO
DISMISS (Dkt. 7, filed March 2, 2016)
DEFENDANT REO PARTNERS, LLC’s MOTION TO DISMISS
(Dkt. 12, filed March 15, 2016)

I.

INTRODUCTION

On December 21, 2015, plaintiffs Guy Hart, Leemor Hart Lavy, and Zeev Lavy
(collectively, “plaintiffs”) filed the instant action in the Los Angeles County Superior
Court against defendants Bayview Loan Servicing (“Bayview”), Bank of America (“Bank
of America”), the Law Offices of Les Zieve (“Zieve”), and Does 1 through 20, inclusive.
Dkt. 1 (Compl.). Plaintiffs later identified Doe 1 as REO Partners, LLC (“REO”). The
complaint asserts claims for wrongful foreclosure, declaratory relief, and “temporary
restraining order and preliminary injunctions.”1 See generally Compl. On February 25,
2016, defendants removed this action to federal court, asserting diversity jurisdiction.
Dkt. 1 (Notice of Removal).

1

Of course, “[a] preliminary injunction . . . is not, in itself a cause of action. Thus,
a cause of action must exist before injunctive relief may be granted.” Major v. Miraverde
Homeowners Assn., 7 Cal.App.4th 618, 623 (1992). Accordingly, defendants Bayview
and Bank of America argue in their motion to dismiss that plaintiffs cannot sustain an
independent claim for “injunctive relief” because no such claim exists. Plaintiffs’ papers
do not address this issue or otherwise rebut defendants’ argument. Accordingly,
plaintiffs’ third claim is DISMISSED without prejudice.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

‘O’

Case No.

2:16-cv-01309-CAS(AFMx)

May 10, 2016

Title

GUY HART, ET AL., v. BAYVIEW LOAN SERVICING, ET AL.

On March 2, 2016, defendants Bayview and Bank of America filed a joint motion
to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Dkt. 7 (“Bayview
Motion”). On March 28, 2016, plaintiffs filed an opposition to the Bayview Motion.
Dkt. 20 (“Opp’n to Bayview”). On April 20, 2015, defendants Bayview and Bank of
America filed a reply. Dkt. 29 (“Bayview Reply”). On March 15, 2016, defendant REO
filed a separate motion to dismiss pursuant to Rule 12(b)(6). Dkt. 12 (“REO Motion”).
On April 4, 2016, plaintiffs filed an opposition to REO’s motion. Dkt. 22 (Opp’n to
REO). Having carefully considered the parties’ arguments, the Court finds and concludes
as follows.
II.

BACKGROUND

On or about March 27, 2007, plaintiff Guy Hart obtained a $1,000,000 loan (the
“subject loan”) from Countrywide Home Loans, Inc. in order to purchase the real
property located at 20338 Via Sansovino, Los Angeles, California 91326 (the
“Property”). See Compl. at ¶¶ 12-13; Dkt. 8 (Request for Judicial Notice, or “RJN”), Ex.
1.2 A Deed of Trust was entered evidencing a mortgage. See RJN, Ex. 1. According to
the complaint in this action, plaintiff Guy Hart’s sister (plaintiff Leemor Hart Levy) and
her husband (plaintiff Zeev Lavy) have resided at the Property since 2007. Compl. at ¶¶
4–5.
On or about November 18, 2011, a Notice of Default and Election to Sell Under
Deed of Trust indicating an arrearage of $78,534.24 was recorded in the Los Angeles
County Recorder’s Office. See RJN, Ex. 2; Compl. at ¶ 16. The complaint alleges that

2

Defendants filed two requests for judicial notice of certain documents contained
in the official public records of the County of Los Angeles. See Dkts. 8 (“RJN”), 13
(“RJN II”). The Court grants defendants’ request for judicial notice because these
documents are in the public record and their existence is “capable of accurate and ready
determination by resort to sources whose accuracy cannot reasonably be questioned.”
Fed. R. Evid. 201(b). Indeed, courts routinely take judicial notice of these types of
documents. See, e.g., Liebelt v. Quality Loan Serv. Corp., 2011 WL 741056, at *6 n.2
(N.D. Cal. Feb.24, 2011); Reynolds v. Applegate, 2011 WL 560757, at *1 n.2 (N.D. Cal.
Feb.14, 2011); Giordano v. Wachovia Mortg., 2010 WL 5148428, at *1 n.2 (N.D. Cal.
Dec. 14, 2011).
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

‘O’

Case No.

2:16-cv-01309-CAS(AFMx)

May 10, 2016

Title

GUY HART, ET AL., v. BAYVIEW LOAN SERVICING, ET AL.

after the recording of the Notice of Default, plaintiffs “communicated at length with Bank
of America in an effort to modify the loan,” but were informed on November 3, 2011 that
the property was to be placed in “Accelerated Foreclosure.” Compl. at ¶¶ 15-16.
Thereafter, plaintiff Guy Hart purportedly made numerous attempts to seek a loan
modification and prevent the foreclosure. Id. at ¶ 16. Specifically, plaintiffs allege that
in January 2012, they sent Bank of America a tender offer to purchase the home in full or,
in the alternative, to modify the subject loan. Id. at ¶¶ 17-18. Plaintiffs further allege,
however, that while they were engaged with Bank of America in ongoing efforts to
modify the loan, the Deed of Trust had already been assigned to The Bank of New York
Mellon in October 2011. Id. at ¶ 19. The assignment was recorded on November 1,
2011. Id.
Plaintiffs further aver that throughout 2014 and 2015, negotiations to modify the
loan were ongoing between plaintiff Guy Hart and defendant Bayview Loan Servicing.
See generally id. at ¶¶ 20-29. Nonetheless, on November 4, 2015, a Notice of Trustee’s
Sale was recorded in the Los Angeles County Recorder’s Office indicating that the
estimated amount of the “unpaid balance and other charges” on the loan was
$1,341,448.66. RJN, Ex. 3. Pursuant to the Notice of Trustee’s Sale, a sale of the
Subject Property was held on November 30, 2015. RJN, Ex. 4. In the operative
complaint, plaintiff Guy Hart alleges that on December 2, 2015, he contacted defendant
Bayview Loan Servicing regarding the status of the loan modification and discovered that
the Property had already been sold days earlier. Compl. at ¶ 31. Plaintiffs allege that
they had no notice of the impending Trustee’s Sale and that the resulting sale was
wrongful and must be set aside. See id. at ¶¶ 32-34.
III.

LEGAL STANDARD

A motion pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal
sufficiency of the claims asserted in a complaint. Under this Rule, a district court
properly dismisses a claim if “there is a ‘lack of a cognizable legal theory or the absence
of sufficient facts alleged under a cognizable legal theory.’ ” Conservation Force v.
Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011) (quoting Balisteri v. Pacifica Police Dep’t,
901 F.2d 696, 699 (9th Cir. 1988)). “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.”
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

‘O’

Case No.

2:16-cv-01309-CAS(AFMx)

May 10, 2016

Title

GUY HART, ET AL., v. BAYVIEW LOAN SERVICING, ET AL.

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. FDIC, 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). However, “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, 679 (2009); see 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.”). 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, 556 U.S. at 679.
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); see Lee v. City of Los
Angeles, 250 F.3d 668, 689 (9th Cir. 2001).
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).

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

2:16-cv-01309-CAS(AFMx)

Title

GUY HART, ET AL., v. BAYVIEW LOAN SERVICING, ET AL.

IV.

Date

‘O’

May 10, 2016

ANALYSIS
A.

Bayview and Bank of America’s Motion to Dismiss
1.

Plaintiffs’ Claim for Wrongful Foreclosure

“After a nonjudicial foreclosure sale has been completed, the traditional method by
which the sale is challenged is a suit in equity to set aside the trustee’s sale.” Lona v.
Citibank, N.A., 202 Cal.App. 4th 89, 103 (2011). Under California law, “[t]he elements
of an equitable cause of action to set aside a foreclosure sale are as follows: (1) the trustee
or mortgagee caused an illegal, fraudulent, or willfully oppressive sale of real property
pursuant to a power of sale in a mortgage or deed of trust; (2) the party attacking the sale
(usually but not always the trustor or mortgagor) was prejudiced or harmed; and (3) in
cases where the trustor or mortgagor challenges the sale, the trustor or mortgagor
tendered the amount of the secured indebtedness or was excused from tendering.” Id. at
104.
Plaintiffs’ claim for wrongful foreclosure arises from defendants’ alleged
violations of various provisions of the California Homeowner’s Bill of
Rights––specifically, violations of California Civil Code sections 2923.55, 2923.6,
2923.7, 2924, and 2924.9. See Compl. ¶¶ 43-46. However, Bayview and Bank of
America argue that these sections of the California Civil Code apply only to owneroccupied properties, such that plaintiffs here cannot assert a wrongful foreclosure claim
premised upon violations of these provisions. See Bayview Motion at 5-6.
Indeed, as defendants rightly note, California Civil Code section 2924.15 expressly
provides that sections 2923.55, 2923.6, 2923.7, 2924, and 2924.9 “shall apply only to
first lien mortgages or deeds of trust that are secured by owner-occupied residential real
property containing no more than four dwelling units.” Cal. Civ. Code § 2924.15(a)
(emphasis added). This provision further provides that “ ‘owner-occupied’ means that
the property is the principal residence of the borrower and is security for a loan made for
personal, family, or household purposes.” Id.
In the instant case, plaintiffs’ complaint alleges that plaintiff Guy Hart is the
“owner” of the property. Compl. at ¶ 3. The Deed of Trust further lists “Guy Hart, a
Single Man” as the sole borrower on the loan, and an address in Calabasas, California as
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

‘O’

Case No.

2:16-cv-01309-CAS(AFMx)

May 10, 2016

Title

GUY HART, ET AL., v. BAYVIEW LOAN SERVICING, ET AL.

the borrower’s address. RJN, Ex. 1. However, the complaint alleges that the residents of
the Property are plaintiffs Leemor Hart Lavy and Zeev Lavy, whose names do not appear
on the Deed of Trust. See Compl. at ¶¶ 4-5. Accordingly, based upon the allegations in
the complaint, the Deed of Trust appears not to be “secured by [an] owner-occupied
residential real property,” as that term is defined by California Civil Code section
2924.15. Thus, the relevant statutory provisions upon which plaintiffs assert their
wrongful foreclosure claim appear not to apply in the instant case, and therefore cannot
form the basis of plaintiffs’ wrongful foreclosure claim. See Corral v. Select Portfolio
Servicing, Inc., No. 14-02251, 2014 WL 3900023, at *5 (N.D. Cal. Aug. 7, 2014)
(holding plaintiffs’ allegation that “Ms. Balgas is a ‘resident at the property’ ” to be
insufficient to meet the requirements of section 2924.15); Masson v. Selene Fin. LP, No.
12–05335, 2013 WL 271256, at *3 (N.D. Cal. Jan. 24, 2013) (dismissing claim in part for
failure to meet the owner-occupied requirement of section 2924.15 where plaintiff
admitted that she did not currently live at the property).
Indeed, in opposition to the instant motion, plaintiffs acknowledge that plaintiff
Guy Hart was the sole borrower on the loan and that only his sister Leemor Hart Levy
and her family have lived at the Property. Opp’n to Bayview at 6. Nonetheless, plaintiffs
assert that Leemor Hart Levy and Zeev Levy, the residents of the Property, qualify as
“equitable owners” of the Property by virtue of their “having contributed in excess of
$600,000 in payments and maintenance since 2006.” Id. However, plaintiffs cite no
legal authority holding that any such “equitable owner” status would satisfy section
2924.15’s requirement that the Property be “the principal residence of the borrower” on
the loan.
Simply put, because (1) Hart is the borrower on the loan that is secured by the
Deed of Trust, and (2) the complaint does not allege that Hart lives at the Property, the
Levys’ status as “equitable owners” of the Property fails to bring the allegations in the
complaint within the scope of section 2924.15.3 Accordingly, because the complaint does

3

The Court notes that the principle of equitable ownership in California law
appears to apply in the context of a contract for the sale of real property. See Ocean
Avenue LLC v. County of Los Angeles, 227 Cal.App.4th 344, 352 (2014) (“An
unconditional contract for the sale of land, of which specific performance would be
decreed, grants the purchaser equitable title, and equity considers him the owner.”)
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

‘O’

Case No.

2:16-cv-01309-CAS(AFMx)

May 10, 2016

Title

GUY HART, ET AL., v. BAYVIEW LOAN SERVICING, ET AL.

not allege that Hart is occupying the Property, and because the Levys are not alleged to
be borrowers on the loan, the Property is not an “owner-occupied residential real
property” under section 2924.15. Thus, plaintiffs have failed to state a claim for
wrongful foreclosure premised upon violations of sections 2923.55, 2923.6, 2923.7,
2924, and 2924.9 of the California Civil Code.
Separately, plaintiffs also argue that their claim for wrongful foreclosure survives
because they seek relief pursuant to California Civil Code sections 2924.12 (b) and
2924.12(i), which are not subject to the owner-occupied restriction of section 2924.15.
Opp’n to Bayview at 6. Specifically, the complaint invokes (1) section 2924.12(b) as the
basis for its demand for either treble damages or $50,000, and (2) section 2924.12(i) as a
basis for granting attorneys’ fees. Compl. at ¶ 52. But despite plaintiffs’ contention to
the contrary, Section 2924.12(b) does not create an independent cause of action; it merely
provides damages for violations of the aforementioned statutory provisions.4 See Cal.
Civ. Code § 2924.12(b). That is, Section 2924.12(b) provides that a borrower is entitled
to certain statutory damages for violations of the previously-discussed sections of the
California Civil Code (i.e., sections 2923.55, 2923.6, 2923.7, and 2924.9).
In sum, plaintiffs have failed to state a wrongful foreclosure claim premised upon
violations of the California Civil Code because the complaint fails properly to allege that

(citation omitted); c.f. Lang v. Klinger, 34 Cal.App.3d 987, 992 (1973) (Equitable
ownership “does not become effective as to persons whose claims or rights to the
property are purely incidental”). Here, plaintiffs do not allege that there is a contract to
which either Leemor Hart Levy or Zeev Levy are parties.
4

Plaintiffs cite two cases that purportedly support their assertion that section
2924.12 itself may provide the basis for an independent claim. Opp’n to Bayview at 7.
These cases, however, do not support any such proposition. Specifically, Alvarez v.
BAC Home Loans Serv., L.P., 228 Cal.App.4th 941, 951 (2014) merely explains that
section 2924.12 allows for injunctive relief for material violations of the California
Homeowner Bill of Rights, and Rockridge Trust v. Wells Fargo, N.A., 985 F.Supp.2d
1110, 1149 (N.D. Cal. 2013) simply explains that section 2924.12 provides for damages
and injunctive relief based upon violations of other statutory provisions.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

‘O’

Case No.

2:16-cv-01309-CAS(AFMx)

May 10, 2016

Title

GUY HART, ET AL., v. BAYVIEW LOAN SERVICING, ET AL.

the Property is owner-occupied.5 Accordingly, plaintiffs’ claim for wrongful foreclosure
based upon alleged violations of the California Civil Code is DISMISSED without
prejudice.
2.

Plaintiffs’ Claim for Declaratory Relief

Plaintiffs’ complaint asserts a second claim for declaratory relief, seeking a
declaration of the parties’ respective rights and duties related to the Property. Compl. at ¶
57. Under California Code of Civil Procedure section 1060, a court may grant
declaratory relief to “[a]ny person . . . who desires a declaration of his or her rights or
duties with respect to another . . . in cases of actual controversy relating to the legal rights
and duties of the respective parties.” Accordingly, a declaratory judgment acts
prospectively to quiet actual controversies before they lead to “repudiation of obligations,
invasion of rights or commission of wrongs.” County of San Diego v. State, 164
Cal.App.4th 580, 607 (2008). “In order for a party to pursue an action for declaratory
relief, the ‘ “actual, present controversy must be pleaded specifically.” ’ ” Jenkins v. JP
Morgan Chase Bank, N.A., 216 Cal. App. 4th 497, 513-14 (2013), abrogated on other
grounds by Yvanova v. New Century Mortgage Corp., 62 Cal. 4th 919 (2016). Thus, “a
claim must provide specific facts, as opposed to conclusions of law, which show a
‘controversy of concrete actuality.’ ” Id. (citation omitted).
Here, plaintiffs generally allege that an actual controversy exists regarding the
parties’ “respective rights and duties to the property, particularly with respect to the loan,
deed of trust[,] and illegal and unauthorized foreclosure.” Compl. at ¶ 56. Because this
declaratory relief claim appears to be derivative of plaintiffs’ wrongful foreclosure claim
and premised upon the same theory regarding the impropriety of the foreclosure,
discussed supra, the Court DISMISSES this claim without prejudice.

5

Plaintiffs also assert that they have a wrongful foreclosure claim that arises from
violations of California Civil Code section 2924.17, which they contend does not only
apply to owner-occupied properties and thus triggers statutory damages here, pursuant to
section 2924.12(b). Opp’n to Bayview at 6. However, plaintiffs’ complaint does not
plead violations of section 2924.17 as a basis for their wrongful foreclosure claim, and
indeed plaintiffs seek leave to amend their complaint in order to plead such violations.
Id. at 9.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:16-cv-01309-CAS(AFMx)

Title

GUY HART, ET AL., v. BAYVIEW LOAN SERVICING, ET AL.
B.

Date

‘O’

May 10, 2016

REO’s Motion to Dismiss

On March 15, 2016, REO was named as defendant “Doe 1” in this action.
According to the November 30, 2015 Trustee’s Deed Upon Sale, title to the Property was
transferred to REO and non-party Half Life Capital LLC following their purchase of the
Property for $1,053,150.01 at the non-judicial foreclosure sale. RJN II, Ex. A. In a
separate motion to dismiss, REO contends that because they are a bona fide purchaser for
value, plaintiffs cannot maintain a claim in equity for wrongful foreclosure against them.
REO Motion at 6. In their opposition to REO’s motion, plaintiffs argue that under the
circumstances here, the wrongful foreclosure sale may be revoked or declared void.
Opp’n to REO at 5. In addition, plaintiffs allege in their complaint that the (thenunnamed) purchaser of the Property (i.e., REO) was “an affiliate” of Bayview. Compl. at
¶ 35.
In light of the Court’s dismissal of plaintiffs’ claims as to named defendants
Bayview and Bank of America, the Court also dismisses without prejudice all claims
purportedly asserted against REO (i.e., “Doe 1”). Accordingly, REO’s motion to dismiss
is hereby granted.
V.

CONCLUSION

In accordance with the foregoing, defendants’ respective motions to dismiss, Dkts.
7 and 12, are hereby GRANTED without prejudice.
Plaintiff is granted twenty-one (21) days to file an amended complaint addressing
the deficiencies identified herein. Failure to do so may result in dismissal with prejudice.
IT IS SO ORDERED.
00
Initials of Preparer

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:

00

CMJ

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