Yulaeva v. Greenpoint Mortgage Funding, Inc. et al

Filing 55

ORDER signed by Senior Judge Lawrence K. Karlton on 12/20/10 ORDERING that the dft's 40 Motion to Dismiss is GRANTED in part and DENIED in part; pltf's claim under TILA is DISMISSED WITH PREJUDICE; pltf's claims for fraud and negligent representation by Greenpoint are DISMISSED WITHOUT PREJUDICE; the court DENIES Greenpoint's motion as to pltf's claims under RESPA and Cal. Bus. & Prof. Code § 17200. (Manzer, C)

Yulaeva v. Greenpoint Mortgage Funding, Inc. et al

Doc. 55

1 2 3 4 5 6 7 8 9 ELENA YULAEVA, 10 NO. CIV. S-09-1504 LKK/KJM 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 v. ORDER GREENPOINT MORTGAGE FUNDING, INC.; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; EMC MORTGAGE CORPORATION; and DOES 1 through 10, inclusive, Defendants. / This cases arises out of a loan used for the purchase of plaintiff's home and the related mortgage. Defendant Greenpoint Plaintiff, UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Mortgage Funding, Inc. ("Greenpoint"), who allegedly provided the initial loan, moves to dismiss all five claims against it. The

remaining defendants, Mortgage Electronic Registration Systems, Inc. and EMC Mortgage Corporation, initially filed a motion to dismiss to be heard in parallel, but these defendants have

withdrawn their motion. //// 1
Dockets.Justia.com

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For the reasons stated below, the court grants Greenpoint's motion in part. I. Background In two prior orders, the court extensively discussed the factual allegations in this case as alleged in the initial and first amended complaints. See Orders filed Sept. 3, 2009 and May The allegations in the operative are largely unchanged.

7, 2010 (ECF. Nos. 12 and 38). Second Amended Complaint

("SAC")

Accordingly, the court does not repeat this factual background here. II. Standard The court has also previously articulated the standard for a Fed. R. Civ. P. 12(b)(6) motion to dismiss, although the parties appear not to have read this articulation. For example, plaintiff

continues to invoke the "no set of facts" standard despite the court's explanation that this standard has been explicitly In light of

repudiated.

See Order filed Sept. 3, 2009 at 10 n.7.

this apparent confusion and the fact that the present motion turns on arguable nuances of this standard, the court repeats this standard here. A Fed. R. Civ. P. 12(b)(6) motion challenges a complaint's compliance with the pleading requirements provided by the Federal Rules. In general, these requirements are provided by Fed. R. Civ. P. 8, although claims that "sound[] in" fraud or mistake must meet the requirements provided by Fed. R. Civ. P. 9(b). Ciba-Geigy Corp., 317 F.3d 1097, 1103-04 (9th Cir. 2003). 2 Vess v.

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1.

Dismissal of Claims Governed by Fed. R. Civ. P. 8

Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." The complaint must give defendant

"fair notice of what the claim is and the grounds upon which it rests." Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007)

(internal quotation and modification omitted). To meet this requirement, the complaint must be supported by factual allegations. 1937, 1950 (2009). Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. "While legal conclusions can provide the

framework of a complaint," neither legal conclusions nor conclusory statements are themselves sufficient, and such statements are not entitled to a presumption of truth. Id. at 1949-50. Iqbal and

Twombly therefore prescribe a two step process for evaluation of motions to dismiss. The court first identifies the non-conclusory

factual allegations, and the court then determines whether these allegations, taken as true and construed in the light most

favorable to the plaintiff, "plausibly give rise to an entitlement to relief." Id.; Erickson v. Pardus, 551 U.S. 89 (2007).

"Plausibility," as it is used in Twombly and Iqbal, does not refer to the likelihood that a pleader will succeed in proving the allegations. Instead, it refers to whether the non-conclusory

factual allegations, when assumed to be true, "allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949. "The

plausibility standard is not akin to a 'probability requirement,' 3

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but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 557). A

complaint may fail to show a right to relief either by lacking a cognizable legal theory or by lacking sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). The line between non-conclusory and conclusory allegations is not always clear. allegations,' but Rule 8 "does not require 'detailed factual it demands more than an unadorned,

the-defendant-unlawfully-harmed-me accusation." Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While Twombly was not

the first case that directed the district courts to disregard "conclusory" allegations, the court turns to Iqbal and Twombly for indications of the Supreme Court's current understanding of the term. In Twombly, the Court found the naked allegation that 'ha[d] entered into a contract, combination or

"defendants

conspiracy to prevent competitive entry . . . and ha[d] agreed not to compete with one another,'" absent any supporting allegation of underlying details, to be a conclusory statement of the elements of an anti-trust claim. 551). In contrast, Id. at 1950 (quoting Twombly, 550 U.S. at the Twombly plaintiffs' allegations of

"parallel conduct" were not conclusory, because plaintiffs had alleged specific acts argued to constitute parallel conduct. Twombly, 550 U.S. at 550-51, 556. Twombly also illustrated the second, "plausibility" step of the analysis by providing an example of a complaint that failed and 4

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a complaint that satisfied this step. Twombly failed. While the Twombly

The complaint at issue in plaintiffs' allegations

regarding parallel conduct were non-conclusory, they failed to support a plausible claim. would ordinarily be Id. at 566. to Because parallel conduct without a prohibited

expected

arise

agreement, an allegation of parallel conduct was insufficient support the inference that a prohibited agreement existed. Id.

Absent such an agreement, plaintiffs were not entitled to relief. Id. In contrast, Twombly held that model form 9 for negligence, demonstrated the type of pleading that satisfies Rule 8. Id. at

565 n.10. This form provides "On June 1, 1936, in a public highway called Boylston Street in Boston, Massachusetts, defendant

negligently drove a motor vehicle against plaintiff who was then crossing said highway." Form 9, Complaint for Negligence, Forms These

App., Fed. Rules Civ. Proc., 28 U.S.C. App., p 829.

allegations adequately "'state[] . . . circumstances, occurrences, and events in support of the claim presented.'" Twombly, 550 U.S. at 556 n.3 (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, that at 94, 95 (3d ed. at a 2004)). certain The time factual and hit

allegations

defendant

drove

plaintiff render plausible the conclusion that defendant drove negligently. 2. Dismissal of Claims Governed by Fed. R. Civ. P. 9(b)

A Rule 12(b)(6) motion to dismiss may also challenge a complaint's compliance with Fed. R. Civ. P. 9(b). 5 See Vess, 317

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F.3d at 1107.

This rule provides that "In alleging fraud or

mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and

other conditions of a person's mind may be alleged generally." These circumstances include the "time, place, and specific content of the false representations as well as the identities of the parties to the misrepresentations." Swartz v. KPMG LLP, 476 F.3d

756, 764 (9th Cir. 2007) (quoting Edwards v. Marin Park, Inc., 356 F.3d 1058, 1066 (9th Cir. 2004)). "In the context of a fraud suit

involving multiple defendants, a plaintiff must, at a minimum, `identif[y] the role of [each] defendant[] in the alleged

fraudulent scheme.'" Id. at 765 (quoting Moore v. Kayport Package Express, 885 F.2d 531, 541 (9th Cir. 1989)). Claims subject to

Rule 9(b) must also satisfy the ordinary requirements of Rule 8. III. Analysis Greenpoint moves for dismissal of plaintiff's claims under the Truth in Lending Act, 15 U.S.C. § 1601 et seq. ("TILA"), the Real Estate Settlement Procedures Act, 12 U.S.C. § 2601 et seq.

("RESPA"), for fraud and negligent misrepresentation, and for breach of California's Unfair Competition Law, Cal. Bus. and Prof. Code § 17200. A. Truth In Lending Act This is the third time the court has evaluated plaintiff's TILA allegations. Throughout this case, plaintiff's imprecise

pleading and inadequate briefing by all parties have interfered with clear adjudication of the claims. 6

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The

SAC's

third

claim

is

for

violation

of

TILA.

The

allegations contained in this section of the SAC allege that defendants failed to timely disclose "the calculation of interest prior and after its adjustment" and other unspecified information. SAC 46. Elsewhere in the complaint, plaintiff alleges that

defendants failed to disclose that her payments were not fixed, and more generally that she did not receive any of the disclosures required by TILA prior to closing. SAC ¶¶ 13, 19.

Greenpoint's present challenge to the TILA claim turns on the fact that TILA imposes differing requirements on different types of loans, a distinction the court has not previously addressed in this case. Notably, the court previously observed that the

allegation regarding disclosure of the calculation of interest prior and after its adjustment implicates 15 U.S.C. § 1639(a)(2)(B) and that the allegation regarding lending without regard to

plaintiff's ability to repay implicates § 1639(h).

Plaintiff

explicitly cites § 1639 in the SAC, without citing any other TILA obligation. Section 1639 codifies the Home Ownership and Equity

Protection Act ("HOEPA"), which amended TILA in 1994 to "combat predatory lending." In re First Alliance Mortg. Co., 471 F.3d 977, 984 n.1 (9th Cir. 2006). opposition thereto raise Greenpoint's motion and plaintiff's two issues: whether plaintiff has

adequately alleged that the loan is subject to HOEPA, and whether TILA imposes any non-HOEPA disclosure requirements applicable to this loan. //// 7

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1. 15

HOEPA U.S.C. of § 1639 only § applies to loans The that meet the

requirements

15

U.S.C.

1602(aa).

latter

subsection

encompasses the following: (1) A mortgage referred to in this subsection means a consumer credit transaction that is secured by the consumer's principal dwelling, other than a residential mortgage transaction, a reverse mortgage transaction, or a transaction under an open end credit plan, if(A) the annual percentage rate at consummation of the transaction will exceed by more than 10 percentage points the yield on Treasury securities having comparable periods of maturity on the fifteenth day of the month immediately preceding the month in which the application for the extension of credit is received by the creditor; or (B) the total points and fees payable by the consumer at or before closing will exceed the greater of (i) 8 percent of the total loan amount; or (ii) $400. 15 U.S.C. § 1602(aa).1 Greenpoint argues that the SAC does not

allege that the loan at issue satisfies either of (aa)(1)(A) or (B), thereby failing to state a claim for violation of § 1639. Numerous other district courts have held that a complaint must at

least allege facts suggesting that the loan falls into one of these categories. See, e.g., Biggins v. Wells Fargo & Co., 266 F.R.D.

15 U.S.C. § 1602(aa)(2) grants the Board of Governors of the Federal Reserve System the authority to modify the percentage values listed in (aa)(1)(A) and (B), and the Board has used this authority to reduce the value for (aa)(1)(A) to 8 percentage points for "first-lien" loans. 8

1

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399, 411 (N.D. Cal. 2009),2 Palmer v. GMAC Commer. Mortg., 628 F. Supp. 2d 186, 190 (D.D.C. 2009), Lynch v. RKS Mortg., Inc., 588 F. Supp. 2d 1254, 1260 (E.D. Cal. 2008) (England, J.), Brown v. GMAC Mortg., LLC, 2010 U.S. Dist. LEXIS 50955 (E.D. Cal. May 21, 2010) (Burrell, J.). Plaintiff does not dispute that the complaint lacks such allegations. Instead, plaintiff argues that she is unable to

determine the specifics of the loan absent discovery, and that she therefore cannot be required to allege these details in the complaint. A more fundamental problem is that the subsection excludes "residential mortgage transactions." 15 U.S.C. § 1602(aa)(1).

This term includes "a transaction in which a . . . deed of trust . . . is created or retained against the consumer's dwelling to finance the acquisition . . . of such dwelling." 1602(w). 15 U.S.C. §

Plaintiff explicitly alleges that the loan at issue in SAC

this suit was taken to finance her purchase of her home. 11-12.

Accordingly, the SAC does not support the inference that

§ 1639 imposed obligations applicable to this loan. 2. Other TILA Obligations

In opposing Greenpoint's motion, plaintiff argues that even if § 1639 does not apply, the SAC implicitly states a claim for violation of TILA's other disclosure obligations. Although

plaintiff does not cite any particular statutory or regulatory

The court observes that Biggins was included in the Federal Rules Decisions despite the fact that the opinion was marked "not for citation" by its author. 9

2

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provision,

the

court

assumes

that

plaintiff

refers

to

the

obligations imposed by those portions of "Regulation Z" codified at 12 C.F.R. § 226.18. This regulation requires a number of disclosures, including (for loans such as this one) the amount financed, the finance charge, the annual percentage rate, whether the loan includes a variable annual percentage rate, "the number, amounts, and timing of payments scheduled to repay the obligation," and the total of payments. Because these disclosure obligations exist regardless of whether the loan falls within the scope of 15 U.S.C. § 1602(aa), see 12 C.F.R. § 226.17-18, Greenpoint's argument that the loan falls outside that subsection's scope does not warrant dismissal of the claim for failure to make these disclosures. Admittedly, plaintiff and the court have clouded the issue by previously describing the disclosure requirements as rooted in 15 U.S.C. § 1639(a) and (b). Nonetheless, plaintiff has consistently, albeit generally, cited Regulation Z, and the federal pleading requirements do not generally require a complaint to articulate the precise legal theory upon which it rests, so long as some viable legal theory is apparent. McCalden v. California Library Ass'n,

955 F.2d 1214, 1223 (9th Cir. 1990), Balistreri, 901 F.2d at 699. The court's prior discussion of equitable tolling as to claims of inadequate disclosures remains applicable regardless of whether the disclosure obligation arises under 15 U.S.C. § 1639 or 12 C.F.R. § 226.18. See Order filed May 7, 2010, at 14:5-16. 10

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Although Regulation Z provides an alternate source of the obligation to make certain disclosures, plaintiff has identified no provision outside of HOEPA analogous to HOEPA's prohibition on "extending credit to consumers under mortgages . . . based on the consumers' collateral without regard to the consumers' repayment ability," 15 U.S.C. § 1639(h). Because plaintiff's loan falls

outside the scope of 15 U.S.C. § 1602(aa), § 1639(h) does not apply, and the court dismisses plaintiff's TILA claim insofar as the claim is predicated on such a prohibition. B. RESPA The SAC's fourth claim is for violation of RESPA. claim is alleged against Greenpoint, it Insofar as that

alleges

Greenpoint violated the RESPA by . . . accepting fees, kickbacks or other things of value from the other Defendants pursuant to an agreement or understanding that business incident to or a part of a real estate settlement service involving federally related mortgage loans would be referred to other Defendants, in violation of 12 U.S.C. § 2607(a) and 24 C.F.R. § 3500.14(b) [and by] [g]iving or accepting a portion, split, or percentage of charges made or received for the rendering of real estate settlement services in connection with a transaction involving a federally related mortgage loan other than for services actually performed, in violation of 12 U.S.C. § 2607(b) and 24 C.F.R. § 3500.14(c). SAC ¶ 53. The court previously rejected defendants' (including

Greenpoint's) contention that this claim was untimely and that it failed for failure to allege actual damages. 2010 at 19-21. 11 Order filed May 7,

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Greenpoint now argues that this claim fails to satisfy Fed. R. Civ. P. 8 because it is a "threadbare recital[] of [the] cause of action's elements, supported by mere conclusory statements." Iqbal, 129 S.Ct. at 1940 (citing Twombly, 550 U.S. at 555). The SAC admittedly essentially parrots the language of 12 U.S.C. § 2607(a) and (b). Greenpoint argues that plaintiff must go beyond the

statutory language, and that in this context, plaintiff must allege "what 'fees, kickbacks, or things of value' defendants allegedly provided to one another." Greenpoint's Mem. at 4-5.

Mere use of the statute's language does not render a complaint inadequate. In Twombly and Iqbal, the statutes at issue were cast

in legal terms, prohibiting "conspiracies" and "discrimination." Here, plaintiff has used the statutory language to allege that in one form or another, something of value changed hands in connection with, and implicitly at the time of, the initial loan transaction. This is a factual, rather than a legal, allegation, thereby falling outside the scope of the Court's recent reiteration of the

inadequacy of conclusory legal allegations.

The alleged facts It

provide sufficient detail to enable Greenpoint to answer.

appears that if these allegations are proven, plaintiff will have demonstrated a right to relief. Fed. R. Civ. P. 8, as interpreted

by Twombly and Iqbal, requires no more. C. Misrepresentation The SAC's sixth claim alleges that Greenpoint fraudulently failed to verify plaintiff's income, caused the appraisal of the home to be inflated, misrepresented that the loan was the most 12

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advantageous loan for which plaintiff qualified, misrepresented the interest rate of the loan, misrepresented plaintiff's ability to afford the loan, and various other terms of the loan. SAC ¶ 60.

The SAC's allegations are substantially similar to those presented in the FAC. In evaluating whether the prior allegations

satisfied Fed. R. Civ. P. 9(b), the court explained: Plaintiff has largely specified the content of the alleged misrepresentations, and has identified these representations as having been made at the time and place the loan was negotiated (although this place is not further specified). Nonetheless, plaintiff brings these claims against three defendants, yet plaintiff fails to specify "the role of each defendant in each scheme." Lancaster Cmty. Hosp. v. Antelope Valley Hosp. Dist., 940 F.2d 397, 405 (9th Cir. 1991); see also Swartz v. KPMG LLP, 476 F.3d 756, 765 (9th Cir. 2007). Order filed May 7, 2010 at 28. Although the court dismissed the

claim because of the failure to specify the defendants' roles, the court did not hold that the allegations otherwise satisfied Fed. R. Civ. P. 9(b). The only difference between the SAC's allegations and those found inadequate in the FAC is that the SAC alleges that Greenpoint made each misrepresentation. Greenpoint argues that this addition is insufficient to rectify the previously-identified defect, and relatedly that the allegations fail to provide the other details required by Rule 9. On the first issue, Greenpoint argues that a plaintiff

asserting a fraud claim against a corporation "must `allege the names of the persons who made 13 the allegedly fraudulent

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representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.'" Lazar v.

Superior Court, 12 Cal. 4th 631, 645 (1996) (quoting Tarmann v. State Farm Mut. Auto. Ins. Co., 2 Cal. App. 4th 153, 157 (1991)). This is a rule of California pleading, which is not directly applicable in federal courts. Nonetheless, numerous district

courts have followed this rule, at least insofar as to require identification of a particular speaker. See, e.g., Saldate v.

Wilshire Credit Corp., 686 F. Supp. 2d 1051, 1065 (E.D. Cal. 2010) (O'Neill, J.), Keen v. Am. Home Mortg. Servicing, Inc., 664 F. Supp. 2d 1086, 1099 (E.D. Cal. 2009) (Damrell, J.), Edejer v. DHI Mortg. Co., No. C 09-1302, 2009 U.S. Dist. LEXIS 52900, *36 (N.D. Cal. June 12, 2009). Here, although plaintiff has alleged that

"Greenpoint" made various misrepresentations, plaintiff has not identified any particular speaker or particular communication. The SAC's allegations fail to provide the specificity required by Rule 9. The purpose of this rule is "to give defendants notice

of the particular misconduct which is alleged to constitute the fraud charged so that they can defend against the charge and not just deny that they have done anything wrong." Semegen v. Weidner, 780 F.2d 727, 731 (9th Cir. 1985). "A pleading is sufficient under Rule 9(b) if it identifies the circumstances constituting fraud so that the defendant can prepare an adequate answer from the

allegations." 1993).

Neubronner v. Milken, 6 F.3d 666, 671-72 (9th Cir.

For many of the alleged misrepresentations, the SAC falls

short of this mark. For example, plaintiff alleges that Greenpoint 14

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misrepresented that the plaintiff's loan "was the most advantageous loan for which Plaintiff qualified." SAC ¶ 60(a). This allegation fails to allege "the who, what, when, where, and how" of the fraud, elements that the Ninth Circuit has held are required. Vess, 317

F.3d at 1107. Merely alleging that these representations were made in connection with negotiation of the loan--a process alleged to have taken months--is insufficient. Rule 9(b) requires that the

complaint include specificity to enable Greenpoint to prepare a response more detailed than to merely assert that no-one at Greenpoint ever made such a false representation. More generally, plaintiff attempts to allege fraud by

identifying mistaken beliefs that Greenpoint caused or permitted plaintiff to hold. allege specific SAC ¶ 60. To allege fraud, plaintiff must rather than mistaken beliefs

communications,

resulting from unspecified communications. For only one alleged representation does plaintiff approach an allegation of the specific when, where, and how of the

mispresentation. Plaintiff alleges that her "mortage application" represented that she would receive a 2 percent interest rate for 360 months. application, attributed. must specify Plaintiff does not allege who developed this mortgage and thus, to whom this representation may be

Accordingly, even as to this allegation, plaintiff the "who" of this communication, at least by

identifying where plaintiff received the application from and where she submitted it to. //// 15

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Accordingly, the court again dismisses plaintiff's fraud allegations as to defendant Greenpoint. Although these allegations were previously dismissed, dismissal was on slightly different grounds, and as such, plaintiff has not conclusively demonstrated an inability to cure these defects. the fraud and negligent The court therefore dismisses claims against

misrepresentations

Greenpoint without prejudice. D. Unlawful Competition The SAC's ninth cause of action is for unfair competition. In the order filed May 7, 2007, the court held that this claim could proceed insofar as it was predicated on allegations of unlawful conduct, to wit, the allegations found to state claims under TILA and RESPA. In arguing that this claim should be

dismissed, Greenpoint cites cases which held that when a complaint failed to state a claim under TILA or RESPA directly, the complaint could not use a violation of those statutes as a predicate for a UCL claim. Because plaintiff here has stated TILA and RESPA

claims, the cited cases are inapplicable. IV. Conclusion For the reasons stated above, Greenpoint's motion to dismiss (ECF. No. 40) is GRANTED IN PART. 1. Plaintiff's claim under TILA is DISMISSED WITH PREJUDICE insofar as this claim seeks to enforce 15 U.S.C. § 1639. The TILA claim may proceed insofar as it is predicated on failure to make disclosures required by Regulation Z and to the extent consistent with the court's prior 16

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3. 2.

orders. Plaintiff's claims for fraud and negligent

misrepresentation by Greenpoint are DISMISSED WITHOUT PREJUDICE. The court DENIES Greenpoint's motion as to plaintiff's claims under RESPA and Cal. Bus. & Prof. Code § 17200. IT IS SO ORDERED. DATED: December 20, 2010.

17