Jorge Torres v. Litton Loan Servicing LP

Filing 26

MEMORANDUM Decision Regarding Defendanta 19 Motion to Dismiss 16 First Amended Complaint signed by Judge Oliver W. Wanger on 4/12/2011. (Figueroa, O)

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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1:10-cv-01709-OWW-SKO
JORGE TORRES,

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MEMORANDUM DECISION REGARDING
DEFENDANTS MOTION TO DISMISS
FIRST AMENDED COMPLAINT (Doc.
19)

Plaintiff,

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v.
LITTON LOAN SERVICING LP,
Defendants.

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I. INTRODUCTION.
Plaintiff Jorge Torres (“Plaintiff”) brings this action for
damages against Litton Loan Servicing LP.

Plaintiff filed a first

amended complaint (“FAC”) on February 2, 2011.

(Doc. 16).

Defendant filed a motion to dismiss Plaintiff’s complaint on
February 14, 2011.
Plaintiff
motion.

did

(Doc. 19).
not

file

timely

opposition

to

Defendant’s

Local Rule 230(c) requires opposition to be filed no less

than fourteen days preceding the noticed hearing date.

E.D. Cal.

R. 230(b).
II. FACTUAL BACKGROUND.
Defendant is engaged in “mortgage activities.”

On June 10,

2009, Plaintiff entered into a “Trial Loan Modification Plan” with
Defendant (“the Plan”).

Pursuant to the Plan, Plaintiff was

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required

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to

make

three

trial

payments;

Plaintiff

made

nine

payments.

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On June 16, 2010, Plaintiff received another solicitation from

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Defendant for a loan modification plan. On June 22, 2010, Plaintiff

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spoke with Defendant and was assured that his loan modification

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would be processed and reviewed.

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sent the paperwork to Defendant for the loan modification.1 (Id.).

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On June 26, 2010, Plaintiff re-

On or about June 29, 2010, Defendant conducted a trustee sale
on Plaintiff’s property.

(Id.).

III. LEGAL STANDARD.

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Dismissal

under

Rule

12(b)(6)

is

appropriate

where

the

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complaint lacks sufficient facts to support a cognizable legal

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theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th

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Cir.1990). To sufficiently state a claim to relief and survive a

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12(b) (6) motion, the pleading “does not need detailed factual

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allegations” but the “[f]actual allegations must be enough to raise

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a right to relief above the speculative level.” Bell Atl. Corp. v.

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Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

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Mere “labels and conclusions” or a “formulaic recitation of the

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elements of a cause of action will not do.” Id.

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be “enough facts to state a claim to relief that is plausible on

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its face.” Id. at 570. In other words, the “complaint must contain

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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, --- U.S.

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----, ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (internal

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quotation marks omitted).

Rather, there must

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The complaint is ambiguous regarding which modification plan this allegation
pertains to.

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The Ninth Circuit has summarized the governing standard, in

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light of Twombly and Iqbal, as follows: “In sum, for a complaint to

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survive a motion to dismiss, the nonconclusory factual content, and

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reasonable

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suggestive of a claim entitling the plaintiff to relief.” Moss v.

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U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir.2009) (internal

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quotation marks omitted). Apart from factual insufficiency, a

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complaint is also subject to dismissal under Rule 12(b)(6) where it

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lacks a cognizable legal theory, Balistreri, 901 F.2d at 699, or

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where the allegations on their face “show that relief is barred”

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for some legal reason, Jones v. Bock, 549 U.S. 199, 215, 127 S.Ct.

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910, 166 L.Ed.2d 798 (2007).

inferences

from

that

content,

must

be

plausibly

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In deciding whether to grant a motion to dismiss, the court

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must accept as true all “well-pleaded factual allegations” in the

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pleading under attack. Iqbal, 129 S.Ct. at 1950. A court is not,

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however, “required to accept as true allegations that are merely

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conclusory,

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inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988

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(9th Cir.2001). “When ruling on a Rule 12(b)(6) motion to dismiss,

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if a district court considers evidence outside the pleadings, it

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must normally convert the 12(b)(6) motion into a Rule 56 motion for

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summary

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opportunity to respond.”

United States v. Ritchie, 342 F.3d 903,

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907

court

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materials-documents

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incorporated by reference in the complaint, or matters of judicial

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notice-without converting the motion to dismiss into a motion for

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summary judgment.”

(9th

unwarranted

judgment,

and

Cir.2003).

“A

deductions

it

must

attached

of

give

may,
to

Id. at 908.
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fact,

the

unreasonable

nonmoving

however,
the

or

party

consider

complaint,

an

certain

documents

IV. DISCUSSION.

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A. First Cause of Action: Wrongful Foreclosure

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Plaintiff’s

first

cause

of

action

alleges

“wrongful

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foreclosure” based on Defendants’ “acts of misrepresentations [sic]

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and

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Plaintiff’s legal theory is unclear, but Plaintiff does not allege

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any actionable misrepresentation with any nexus to the foreclosure

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sale, in any event.

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“Plaintiff spoke with Defendant and was assured that his loan

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modification would be processed and reviewed,” this statement does

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not

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approved, or that a loan modification was agreed to, or that

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foreclosure

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reviewing of Plaintiff’s application.

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Plaintiff’s claim is predicated on allegations of fraud, the FAC

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does not meet the requirements of Federal Rule of Civil Procedure

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9(b).

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specific

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misconduct which is alleged to constitute the fraud." Swartz v.

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KPMG LLP, 476 F.3d 756, 764 (9th Cir. 2007) (internal quotation

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marks omitted). Allegations of fraud must include the "time, place,

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and specific content of the false representations as well as the

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identities of the parties to the misrepresentations." Id. (internal

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quotation

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accompanied

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misconduct charged." Kearns v. Ford Motor Co., 567 F.3d 1120, 1124

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(9th Cir. 2009) (internal quotation marks omitted).

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///

fraud

as

suggest

to

the

that

would

sale

of

the

property.”

(FAC

at

5).

Further, although Plaintiff asserts that

Plaintiff’s

not

take

application

place

due

to

would

the

actually

processing

be

and

Finally, to the extent

"To comply with Rule 9(b), allegations of fraud must be
enough

marks
by

to

give

omitted).
the

who,

defendants

The

notice

"[a]verments

what,

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when,

of

the

of

where,

particular

fraud

and

how

must

be

of

the

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B. Second Cause of Action: Promissory Estoppel

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The elements of a promissory estoppel claim are (1) a promise

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clear and unambiguous in its terms; (2) reliance by the party to

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whom the promise is made; (3) the reliance must be both reasonable

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and foreseeable; and (4) the party asserting the estoppel must be

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injured by his or her reliance.

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192 Cal. App. 4th 218, 227 (Cal. Ct. App. 2011).

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Plaintiff fails to allege an unambiguous promise.

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purported promise that Plaintiff’s application would be “processed

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and reviewed” was not an unambiguous promise that the application

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would be approved, the loan modified, or that foreclosure would not

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occur.

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C. Third Cause of Action: Unfair Business Practices

E.g., Aceves v. U.S. Bank N.A.,
Inter alia,
Defendants

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California law prohibits unfair competition including "any

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unlawful, unfair or fraudulent business act or practice." Cal. Bus.

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& Prof. Code § 1700 et seq. (“UCL”). Because the statute is written

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in the disjunctive, it applies separately to business acts or

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practices that are (1) unlawful, (2) unfair, or (3) fraudulent. See

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Pastoria v. Nationwide Ins., 112 Cal.App.4th 1490, 1496, 6 Cal.

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Rptr. 3d 148 (Cal.Ct.App. 2003). Each prong of the UCL is a

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separate and distinct theory of liability. See id.

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The memorandum decision dismissing the UCL claim Plaintiff
advanced in the original complaint provides in part:
The complaint alleges that Defendant engaged in an unfair
business practice, however, the complaint fails to
identify such practice. To the extent the UCL claim is
predicated on Plaintiff’s allegations of wrongful
foreclosure, fraud, or breach of contract, it is
insufficient for the reasons stated above.

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(Doc. 14 at 7).

The FAC suffers from the same deficiency that

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required dismissal of the original complaint.

The FAC does not

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identify any unfair, unlawful, or fraudulent practice.

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has not sufficiently alleged fraud or misrepresentation.

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E. Fourth Cause of Action: Misrepresentation

Plaintiff

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Plaintiff’s misrepresentation cause of action is predicated on

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his conclusory allegation that Defendants committed fraud. The FAC

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does not sufficiently allege fraud under Federal Rule of Civil

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Procedure 9(b).

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his application would be reviewed and considered; he does not

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allege that his application was not in fact reviewed or considered.

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Nor does Plaintiff allege any justifiable reliance on the alleged

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misrepresentation resulting in damages.

Further, Plaintiff alleges only that he was told

ORDER

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For the reasons stated, IT IS ORDERED:

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1) Defendant’s motion to dismiss the complaint is GRANTED in

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its entirety;

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2) Plaintiff’s complaint is DISMISSED, WITH PREJUDICE;

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3) Defendants shall submit a form of order consistent with

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this

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electronic service of this decision.

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further amendments.

Memorandum

Decision

within

five

(5)

days

There shall be no

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IT IS SO ORDERED.

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Dated:
hkh80h

April 12, 2011

/s/ Oliver W. Wanger
UNITED STATES DISTRICT JUDGE

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following