Noe Canas v. Ocwen Loan Servicing LLC et al

Filing 23

MINUTES (IN CHAMBERS) Re: Motion to Dismiss 8 ; Motion to Remand 13 and Motion to Dismiss 22 by Judge James V. Selna: For the foregoing reasons, Cana's motion to remand is DENIED. Defendants' motion to dismiss is GRANTED in its entirety and without leave to amend. Fay Servicing's motion to dismiss is also GRANTED with prejudice. See document for further information. (lwag)

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

Case No.

SACV 15-1100 JVS (JCGx)

Title

September 21, 2015

Canas v. Ocwen Loan Servicing, LLC, et al.

Present: The
Honorable

James V. Selna
Karla J. Tunis

Sharon Seffens

Deputy Clerk

Court Reporter

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

Jesse Thaler

Brian Paino
Kristina Pelletier

Proceedings:

Defendant’s Motion to Dismiss for Failure to State a Claim Upon which
Relief Can be Granted (Fld 7-17-15)
Plaintiff’s Motion to Remand (Fld 7-29-15)
Defendant Fay Servicing’s Joinder in Motion to Dismiss (Fld 9-9-15)

Cause called and counsel make their appearances. The Court’s tentative
ruling is issued. Counsel submit on the Court’s tentative ruling. The Court
DENIES the plaintiff’s motion to remand and GRANTS the Defendants’ motion to
dismiss in accordance with the tentative ruling as follows:
Pursuant to Fed. R. Civ. P. 12(b)(6), Defendants Ocwen Loan Servicing, LLC
(“Ocwen”) and Western Progressive, LLC (“Western Progressive”) (collectively,
“Defendants”) move to dismiss the complaint against it filed by Plaintiff Noe Canas
(“Canas”). (Docket No. 8.) Canas opposes. (Docket No. 12.) Defendants have replied.
(Docket No. 14.)
Canas moves to remand the action to Orange County Superior Court. (Docket No.
13.) Defendants oppose. (Docket No. 17.) Canas has replied. (Docket No. 20.)
Defendant Fay Servicing (“Fay Servicing”) also moves to dismiss the complaint.
(Docket No. 22.) Canas’s complaint does not mention Fay Servicing once or state any
claims against it. (Fay Servicing’s Mot. Dismiss 1.) Canas has not replied.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

SACV 15-1100 JVS (JCGx)

Title

Date

September 21, 2015

Canas v. Ocwen Loan Servicing, LLC, et al.

For the following reasons, the Court DENIES Canas’s motion to remand and
GRANTS Defendants’ motion to dismiss. The Court also GRANTS Fay Servicing’s
motion to dismiss.
I.

REQUEST FOR JUDICIAL NOTICE

Pursuant to Fed. R. Evid. 201, Defendants bring requests for judicial notice. In
support of their motion to dismiss, Defendants request that the Court take judicial notice
of a list of mortgage servicers that have foreclosed on more than 175 residential real
properties during an applicable reporting period, published by the California Department
of Business Oversight. (Docket No. 9.) In opposition to Canas’s motion to remand,
Defendants request that the Court take judicial notice of the following documents: (1)
County of Orange Treasurer-Tax Collector’s Property Tax Information for Fiscal Year
2014-2015 for real property located at 544 N. Thomas Street, Orange, CA 92869; (2)
United States Department of the Treasury Home Affordable Modification Program
Supplemental Directive 09-01, dated April 6, 2009; and (3) London Interbank Offered
Rates, effective September 16, 2014, published in the Wall Street Journal on or about
August 24, 2015. (Docket No. 18.)
The Court notes that the facts in the documents at issue are accurately and readily
determined sources whose accuracy cannot be questioned. See Fed. R. Evid. 201(b).
Furthermore, Canas has not objected to Defendants’ request. Accordingly, the Court
takes judicial notice of the aforementioned documents.
II.

BACKGROUND

The above-titled case is a mortgage loan modification dispute between Canas, a
homeowner, and Defendants, entities servicing Canas’s home mortgage loan. (Compl. ¶¶
1-3; Docket No. 1-1.) The following facts are alleged in Canas’s complaint against
Defendants.
On October 25, 2007, Canas purchased a single-family home (the “Property”) with
the assistance of a $498,750 mortgage loan from Countrywide Bank, FSB. (Compl. ¶ 8,
10.) Ocwen is now the loan servicer. (Compl. ¶ 11.)
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

SACV 15-1100 JVS (JCGx)

Title

Date

September 21, 2015

Canas v. Ocwen Loan Servicing, LLC, et al.

In 2014, Canas defaulted on his loan. (Compl. ¶ 13.) Defendants recorded a
Notice of Default against the Property on October 22, 2014. (Compl. ¶ 13.) The Notice
of Default contained a “California Declaration of Compliance,” stating that “The
mortgage servicer contacted the borrower to assess the borrower’s financial situation and
to explore options for the borrower to avoid foreclosures as required by Cal. Civ. Code §
2923.55. Thirty days, or more, have passed since these due diligence requirements were
satisfied.” (Compl. ¶ 14.)
Canas alleges that he was not contacted as specified in the declaration, nor was he
contacted after recordation as required by Cal. Civ. Code § 2924.9. (Compl. ¶¶ 14-15.)
After the recordation, Canas sought loss mitigation services from Ocwen. (Compl. ¶ 16.)
Canas contacted Ocwen to pursue a loan modification. (Compl. ¶ 17.) Ocwen provided
Canas with information regarding submitting a loan modification and encouraged him to
apply. (Compl. ¶ 17.) Canas submitted a completed loan modification application and a
qualified written response on January 20, 2015. (Compl. ¶ 18.) Canas contacted Ocwen
“a few days thereafter” to request a single point of contact, which Ocwen advised would
be appointed shortly. (Compl. ¶ 19.) Canas did not receive any information or a single
point of contact from Ocwen for the first month. (Compl. ¶ 20.)
On February 23, 2015, Canas spoke with an Ocwen representative who requested
updated financial information from Canas. (Compl. ¶ 21.) Canas provided the requested
information via fax. (Id.)
On March 18, 2015, Canas confirmed with Ocwen that his loan modification
application was complete and pending review. (Compl. ¶ 25.)
Canas again requested a single point of contact, but was not provided one in
writing. (Compl. ¶ 27.)
Canas has initiated all communication with Ocwen regarding the loan modification
application. (Compl. ¶ 30.) Ocwen has not contacted Canas to explore other foreclosure
alternatives. (Id.) Canas alleges that Ocwen’s processing of his loan modification
application has been inadequate and illogical, particularly because the Property’s sale
date is still on schedule. (Compl. ¶¶ 33-34.) Canas also alleges that Defendants’
negotiations with him regarding his loan modification have not been in good faith.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

SACV 15-1100 JVS (JCGx)

Title

Date

September 21, 2015

Canas v. Ocwen Loan Servicing, LLC, et al.

(Compl. ¶ 36.)
Based on the foregoing, Canas filed a complaint against Defendants in Orange
County Superior Court on June 8, 2015. (See Docket No. 1.) Canas asserted the
following claims against Defendants: (1) violations of California’s Homeowner Bill of
Rights (“HBOR”), specifically §§ 2923.5, 2923.6, 2924.18, 2924.19, 2923.7, and
2924.10; (2) breach of contract; (3) breach of the implied covenant of good faith and fair
dealing; (4) negligent misrepresentation; and (5) violation of California’s Unfair
Competition Law (“UCL”), Cal. Bus. & Prof. Code § 17200 et seq. (Compl. ¶¶ 38-108.)
III.

MOTION TO REMAND
A.

Legal Standard

1.

Removal Generally and the Court’s Duty to Remand Where Jurisdiction
Uncertain

Under 28 U.S.C. § 1441(a), a defendant may remove a civil action from state court
to federal court so long as original jurisdiction would lie in the court to which the action
is removed. City of Chi. v. Int’l Coll. of Surgeons, 522 U.S. 156, 163 (1997). According
to the Ninth Circuit, courts should “strictly construe the removal statute against removal
jurisdiction.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). Doubts as to
removability should be resolved in favor of remanding the case to the state court. Id.
This “‘strong presumption’ against removal jurisdiction means that the defendant always
has the burden of establishing that removal is proper.” Id. (quoting Nishimoto v.
Federman-Bachrach & Assocs., 903 F.2d 709, 712 n.3 (9th Cir. 1990)). If at any time
before final judgment it appears that the district court lacks subject matter jurisdiction,
the district must remand the action back to the state court from which it was removed. 28
U.S.C. § 1447(c). “An order remanding the case may require payment of just costs and
any actual expenses, including attorney fees, incurred as a result of the removal. ” Id.
2.

Diversity Jurisdiction

“For a case to qualify for federal jurisdiction under 28 U.S.C. § 1332(a), there must
be complete diversity of citizenship between the parties opposed in interest.” Kuntz v.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

SACV 15-1100 JVS (JCGx)

Title

Date

September 21, 2015

Canas v. Ocwen Loan Servicing, LLC, et al.

Lamar Corp., 385 F.3d 1177, 1181 (9th Cir. 2004) (citing Strawbridge v. Curtiss, 7 U.S.
(3 Cranch) 267 (1806)). In other words, diversity jurisdiction only exists if “each
defendant is a citizen of a different State from each plaintiff.” Owen Equip. & Erection
Co. v. Kroger, 437 U.S. 365, 373 (1978) (emphasis omitted). The parties’ citizenship is
assessed as of the date the plaintiff filed the Complaint. See Smith v. Sperling, 354 U.S.
91, 93 n.1 (1957).
To satisfy the amount in controversy requirement of § 1332, the plaintiff’s alleged
damages must exceed $75,000. 28 U.S.C. § 1332(a). Where it is not evident from the
face of the complaint that more than $75,000 is at stake, a defendant must prove by a
preponderance of the evidence that the jurisdictional threshold is met. Valdez v. Allstate
Ins. Co., 372 F.3d 1115, 1117 (9th Cir. 2004) (citation omitted).
B.

Discussion

Canas argues that removal of his state law causes of action to this Court was
improper because Defendants have not shown that the amount in controversy has been
met.1 (Mot. Remand 4.) Canas notes that his complaint does not specify a total amount
of damages exceeding $75,000. (Id.) He also argues that his request for injunctive relief
does not put more than $75,000 in issue because he seeks only a temporary injunction
against foreclosure pending Defendants’ consideration of “a true and signification loan
modification.” (Id. at 4-5.)
However, as Defendants correctly note, Canas’s request for an injunction
prohibiting Defendants “from conducting further foreclosure activity in particular,
recording a Notice of Default, Notice of Trustee’s Sale and/or conducting a Trustee’s
Sale of the subject property,” is not limited to the time pending loan modification review.
(See Complaint at 18, Docket No. 1-1.) Canas’s requested relief, if granted, would have
the effect of prohibiting Defendants from foreclosing on Canas’s property. When a
plaintiff seeks to enjoin the foreclosure and sale of a home, the value of the home or the
value of the outstanding indebtedness may be considered as the amount in controversy.
Garfinkle v. Wells Fargo Bank, 483 F.2d 1074, 1076 (9th Cir. 1973); see also Field v.
Bank of Am., Case No. 15-cv-01261-NJV, 2015 WL 2406823, at *2 (N.D. Cal. May 19,
1

The diversity of the parties’ citizenship is not disputed. (See Mot. Remand 3.)

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

SACV 15-1100 JVS (JCGx)

Title

Date

September 21, 2015

Canas v. Ocwen Loan Servicing, LLC, et al.

2015).
Here, there are multiple indicators that the value of the property exceeds $75,000.
First, the property was used to secure a loan of $498.750. (Compl. ¶ 8.) Second, the
Orange County Office of the Tax Assessor estimated the land value at $480,000 for the
2014 tax year. (RJN, Ex. 1.) Finally, the fair market value of the home was appraised at
$390,000 on September 17, 2014. (Fan Decl. ¶ 5.)
Because the value of the home in question exceeds $75,000 and because Canas’s
request for injunctive relief preventing its sale puts that value at issue in this action, the
amount in controversy is met. The Court sees no other barrier to the exercise of diversity
jurisdiction. Accordingly, remand is unwarranted.
IV.

MOTION TO DISMISS
A.

Legal Standard

Under Rule 12(b)(6), a defendant may move to dismiss for failure to state a claim
upon which relief can be granted. A plaintiff must state “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). A claim has “facial plausibility” if the plaintiff pleads facts that “allow[] the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
In resolving a 12(b)(6) motion under Twombly, the Court must follow a twopronged approach. First, the Court must accept all well-pleaded factual allegations as
true, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Nor must the Court
“‘accept as true a legal conclusion couched as a factual allegation.’” Id. at 678-80
(quoting Twombly, 550 U.S. at 555). Second, assuming the veracity of well-pleaded
factual allegations, the Court must “determine whether they plausibly give rise to an
entitlement to relief.” Id. at 679. This determination is context-specific, requiring the
Court to draw on its experience and common sense, but there is no plausibility “where the
well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct.” Id.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

SACV 15-1100 JVS (JCGx)

Title

Date

September 21, 2015

Canas v. Ocwen Loan Servicing, LLC, et al.
B.

Discussion

Defendants argue that each of Canas’s claims should be dismissed. The Court will
address each claim in turn.
1.

HBOR Claims
a.

Section 2923.5

Cal. Civ. Code § 2923.5 imposes specific procedural requirements on servicers
prior to recording a notice of default. Section 2923.5 applies only to those entities, that
during their “immediately preceding annual reporting period . . . foreclosed on 175 or
fewer residential real properties . . . ” (i.e. a “small” servicer). See Cal. Civ. Code §§
2923.5(g), Cal. Civ. Code § 2924.18.
Defendants argue that Canas has failed to state a claim for violation of § 2923.5’s
procedural requirements because Canas has not alleged that Ocwen is a “small servicer.”
Canas has not replied to this argument. (See Opp’n Mot. Dismiss 6-9; Reply 2-3.)
Accordingly, the Court agrees that Canas has failed to state a legally cognizable claim
against Defendants for violation of § 2923.5.
b.

Sections 2923.6, 2924.18, and 2924.19

Cal. Civ. Code § 2923.6 provides that a servicer shall not record a notice of
default, notice of sale, or conduct a trustee’s sale if a borrower submits a complete
application for a first lien loan modification and the application is still pending.
Defendants argue that Canas has failed to state a § 2923.6 violation because his
allegations admit that he did not file a loan modification application until months after the
notice of default had been recorded. (Mot. Dismiss 5-6; see Compl. ¶¶ 13, 18.)
Defendants further note that Canas has not alleged that Defendants have recorded a notice
of sale or conducted a trustee’s sale of the Property. (Mot. Dismiss 5-6.) Therefore,
Defendants argue, Canas has failed to state an actionable claim against them. The Court
agrees. Canas has not substantively addressed Defendants’ arguments on this claim,
aside from baldly asserting that Defendants “failed to properly review [Canas] and dualtracked [Canas] with the recording of a Notice of Default while [Canas] was in active
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

SACV 15-1100 JVS (JCGx)

Title

Date

September 21, 2015

Canas v. Ocwen Loan Servicing, LLC, et al.

review.” This assertion belies the clear pleading in Canas’s complaint that the notice of
default was recorded on October 22, 2014, and Canas applied for a loan modification on
January 20, 2015. (Compl. ¶¶ 13, 18.)
As discussed supra, Cal. Civ. Code § 2924.18 applies only to “small” servicers,
and there is no allegation in the complaint that Ocwen is a small servicer. Therefore, this
claim also must be dismissed.
Finally, Defendants argue that Canas has not stated a claim for injunctive relief
under Cal. Civ. Code § 2924.19 because he has failed to allege a material violation of §§
2923.5 or 2924.18. Because the Court concludes supra that Canas has not stated a claim
for any violation (material or otherwise) of either statute, Canas has not stated facts
sufficient to show entitlement to injunctive relief under § 2924.19.
Accordingly, the aforementioned claims must be dismissed.
c.

Section 2923.7

Cal. Civ. Code § 2923.7 requires a mortgage servicer to establish a single point of
contact between it and a borrower upon the borrower’s request for a foreclosure
prevention alternative. Cal. Civ. Code § 2923.7(a). Canas alleges that he requested a
single point of contact (Compl. ¶ 19) and did not receive one (Compl. ¶¶ 27, 32).
Defendants argue first that Canas’s claim should be dismissed because he failed to allege
facts sufficient to show that he was not appointed a single point of contact. Defendants
essentially urge the Court to infer based on Canas’s allegations of communications with
various representatives of Defendants that a single point of contact was appointed.
However, the Court finds that Canas’s express allegations that Defendants did not
appoint a single point of contact after his direct request are sufficient to state a violation
of § 2923.7. Canas’s additional allegations that he was able to communicate with various
representatives of Defendants do not undermine his claim, even though a servicer may
appoint a “team of individuals” as a single point of contact under Cal. Civ. Code §
2923.7(e).
However, Canas’s claim is not ripe. Ripeness is necessary for a dispute to be a
“case or controversy” within the meaning of Article III of the U.S. Constitution. See
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

SACV 15-1100 JVS (JCGx)

Title

Date

September 21, 2015

Canas v. Ocwen Loan Servicing, LLC, et al.

Allen v. Wright, 468 U.S. 737, 750 (1984). “[A] claim is not ripe for adjudication if it
rests upon contingent future events that may not occur as anticipated, or indeed may not
occur at all.” Bova, 564 F.3d at 1096 (quoting Texas v. United States, 523 U.S. 296, 300
(1998)). This is because “if the contingent events do not occur, the plaintiff likely will not
have suffered an injury that is concrete and particularized enough to establish the first
element of standing.” Id. (citing Lujan, 504 U.S. at 560). Canas does not allege that he
has been denied a loan modification, which is necessary to show any harm resulting from
Defendants’ single point of contact violation. It is possible that the loan modification still
may be granted, eliminating the controversy between the parties.
Therefore, Canas’s § 2923.7 claim must be dismissed.
d.

Section 2924.10

Cal. Civ. Code § 2924.10 requires a mortgage servicer to provide written
acknowledgment of receipt of a borrower’s complete first lien modification application
within five business days of receipt. Canas claims that Defendants violated the statute
because he never received written acknowledgment that they received his loan
modification application or written acknowledgment of the documents submitted.
(Compl. ¶ 68.) Defendants argue that Canas’s claim is insufficient because the statute
does not require Canas to actually receive the acknowledgment but rather requires only
that Defendants send the acknowledgment. (Mot. Dismiss 8.) The Court disagrees. The
Court can think of no other way a plaintiff in Canas’s position would be able to allege
that Defendants did not send an acknowledgment other than to say that he did not receive
it.
However, as discussed supra Part B.1.c, because Canas has not alleged that he has
been denied a loan modification, the claim is not ripe for adjudication.
For the foregoing reasons, Canas’s § 2924.10 claim must be dismissed.
2.

Breach of Contract Claim

Defendants argue that Canas has not pled facts sufficient to show all elements of a
breach of contract. The elements of a claim for breach of contract are “(1) the contract,
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

SACV 15-1100 JVS (JCGx)

Title

Date

September 21, 2015

Canas v. Ocwen Loan Servicing, LLC, et al.

(2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4)
damage to plaintiff therefrom.” Wall Street Network, Ltd. v. New York Times Co., 164
Cal. App. 4th 1171, 1178 (2008). The Court agrees with Defendants that Canas has not
sufficiently pled that the existence of a contract between Defendants and Canas entitling
Canas to a loan modification or obligating Ocwen to reconsider and/or renegotiate the
loan. (See Mot. Dismiss 10.) Assuming that the Deed of Trust is a contract between
Defendants and Canas, Canas has pointed to no specific provision that justifies his belief
that he was entitled to a loan modification by contract. (See Opp’n Mot. Dismiss 10.) In
any event, even if Defendants were contractually obligated to offer Canas a loan
modification, Canas does not allege any breach or damages because he does not allege
that his loan modification application has been denied.
Accordingly, Canas has failed to state a claim for breach of contract.
3.

Breach of the Implied Covenant Claim

The covenant of good faith and fair dealing is implied in every contract and
“prevent[s] one contracting party from unfairly frustrating the other party’s right to
receive the benefits of the agreement.” Guz v. Bechtel Nat. Inc., 24 Cal. 4th 317, 349
(2000). However, the implied covenant does not “impose substantive duties or limits on
the contracting parties beyond those incorporated in the specific terms of their
agreement.” Id. at 349-50.
Here, Canas alleges that Ocwen breached the implied covenant by failing to assist
him in pursuing loss mitigation options (Compl. ¶ 83) and failing to follow its own
guidelines in considering or accepting Canas’s request for a loan modification (Compl. ¶
84).
The Court agrees with Defendants that Canas has not stated a claim for breach of
the implied covenant because his allegations do not show how he was contractually
entitled to a loan modification. Assuming for the sake of argument that the Deed of Trust
is a contract binding the present parties, Defendants’ failure to assist Canas in obtaining a
loan modification cannot be said to be unfairly frustrating Canas’s rights under the
agreement. To impose such obligation would be to impose requirements on Defendants
beyond the specific terms of the agreement.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

SACV 15-1100 JVS (JCGx)

Title

Date

September 21, 2015

Canas v. Ocwen Loan Servicing, LLC, et al.

Therefore, Canas’s breach of the implied covenant claim must be dismissed for
failure to state a claim.
4.

Negligent Misrepresentation Claim

Defendants argue that Canas has failed to state a claim for negligent
misrepresentation. (Mot. Dismiss 12.) The elements of a negligent misrepresentation
claim under California law are: “(1) misrepresentation of a past or existing material fact,
(2) without reasonable ground for believing it to be true, (3) with intent to induce
another’s reliance on the fact misrepresented, (4) justifiable reliance on the
misrepresentation, and (5) resulting damage.” Nat’l Union Fire Ins. Co. of Pittsburgh,
PA v. Cambridge Integrated Servs. Grp., Inc., 171 Cal. App. 4th 35, 50 (quoting Apollo
Capital Fund LLC v. Roth Capital Partners, LLC, 158 Cal. App. 4th 226, 243 (2007)).
Defendants cannot identify an alleged misrepresentation in Canas’s pleadings, and neither
can the Court. Canas’s allegation that it would assist Canas in modifying the loan “if the
law interpreted that the interest or other charges collected exceeds the permitted limits”
(see Compl. ¶ 89) is not a misrepresentation because it is not accompanied by an
allegation that the interest or other charges are unlawful. (See Mot. Dismiss 12.)
Similarly, Canas’s claim that Ocwen misrepresented that no foreclosure proceeding were
being attempted is also not a misrepresentation because Canas does not allege that
foreclosure proceedings have taken place. (See id.) Without a clear statement of the
alleged false statement and factual allegations demonstrating why the statement is false,
Canas does not state a claim for negligent misrepresentation.
Accordingly, Canas’s claim for negligent misrepresentation must be dismissed.
5.

UCL Claim

California’s UCL prohibits “any unlawful, unfair or fraudulent business act or
practice and unfair, deceptive, untrue or misleading advertising.” Cal. Bus. & Prof. Code
§ 17200. A plaintiff asserting a UCL claim must “(1) establish a loss or deprivation of
money or property sufficient to qualify as injury in fact, i.e., economic injury, and (2)
show that that economic injury was the result of, i.e., caused by, the unfair business
practice . . . that is the gravamen of the claim.” Kwikset, 51 Cal. 4th at 322. There is no
causation “when a complaining party would suffer the same harm whether or not a
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
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Date

Case No.

SACV 15-1100 JVS (JCGx)

Title

September 21, 2015

Canas v. Ocwen Loan Servicing, LLC, et al.

defendant complied with the law.” Daro v. Superior Court, 151 Cal. App. 4th 1079, 1099
(2007).
As the Court discusses supra Parts B.1.c & d, Canas’s § 17200 claim is not ripe for
adjudication until Defendants have denied his loan modification application.
Accordingly, Canas’s § 17200 claim must be dismissed.
V.

CONCLUSION

For the foregoing reasons, Canas’s motion to remand is DENIED. Defendants’
motion to dismiss is GRANTED in its entirety and without leave to amend. Fay
Servicing’s motion to dismiss is also GRANTED with prejudice.
IT IS SO ORDERED.

:
Initials of Preparer

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04

kjt

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