Shapiro v. Bank of America, N.A. et al

Filing 40

ORDER signed by Judge John A. Mendez on 10/12/2011 ORDERING 16 that Defendant's motion to dismiss is GRANTED; If Plaintiff wishes to file an Amended Complaint that is in accordance with this Order, it must be filed within twenty (20) days. Otherwise, Plaintiff should file a notice of dismissal. (Reader, L)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 18 19 GENNADY SHAPIRO, ) ) Plaintiff, ) ) v. ) ) BANK OF AMERICA, N.A.; PRLAP, ) INC.; RECONSTRUCT COMPANY, N.A.; ) BAC HOME LOANS SERVICING, LP; ) VERDUGO TRUSTEE SERVICE ) CORPORATION; CITIBANK, N.A.; ) MORTGAGE ELECTRONIC REGISTRATION ) SYSTEMS, INC.; and DOES 1 ) through 20, inclusive, ) ) ) Defendants. ) Case No. 2:11-CV-00576-JAM-CMK ORDER GRANTING DEFENDANTS‟ MOTION TO DISMISS 20 This matter comes before the Court on Defendants Bank of 21 America, N.A. (“BANA”), PRLAP, Inc. (“PRLAP”), BAC Home Loans 22 Servicing, LP (“BAC”), and Recontrust Company, N.A.‟s 23 (“Recontrust”) (collectively “Defendants”) Motion to Dismiss 24 (“MTD”) (Doc. #16) Plaintiff Gennady Shapiro‟s (“Plaintiff”) 25 Amended Complaint (Doc. #12), pursuant to Federal Rule of Civil 26 Procedure 12(b)(6).1 27 28 Plaintiff opposes the motion (Doc. #32). 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was originally scheduled for September 7, 2011. 1 1 2 I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND This action arises out of a nonjudicial foreclosure of real 3 property located at 8120 Lone Pine Place, Granite Bay, California 4 (“the Property”). 5 executed a written Deed of Trust with BANA as beneficiary. 6 Compl. ¶ 17. 7 In October 2010, Recontrust recorded a Notice of Default and 8 Election to Sell Under Deed of Trust (“Notice of Default”) on the 9 Property. See Am. Compl. ¶ 1. In July, 2005 Plaintiff The original trustee was PRLAP. Am. Compl. Ex. I. Am. Am. Compl. Ex. C. Two days later, Recontrust recorded a 10 Substitution of Trustee executed by BANA on October 25, 2010 naming 11 Recontrust as the replacement trustee. 12 Subsequently, Recontrust recorded a Notice of Trustee‟s Sale, and 13 the Property was foreclosed upon. 14 Amended Complaint alleges, generally, that the foreclosure was 15 improper. 16 Am. Compl. Ex. J. Am. Compl. Ex. K. Plaintiff‟s The Complaint and supporting exhibits also indicate that the 17 Property was subject to other liabilities involving other 18 Defendants who recorded numerous encumbrances and other documents 19 related to the Property. 20 Problems”). 21 to claims against Defendants BANA, PRLAP, BAC and Recontrust, which 22 all arise out of the July, 2005 Deed of Trust executed by Plaintiff 23 in BANA‟s favor and the foreclosure proceedings resulting from that 24 instrument. 25 26 Am. Compl. ¶ 20 (“Chain of Title The motion currently before the Court is only relevant For the reasons set forth below, Defendants‟ Motion to Dismiss is GRANTED in its entirety. 27 28 2 1 II. OPINION 2 A. Legal Standard 3 A party may move to dismiss an action for failure to state a 4 claim upon which relief can be granted pursuant to Federal Rule of 5 Civil Procedure 12(b)(6). 6 court must accept the allegations in the complaint as true and draw 7 all reasonable inferences in favor of the plaintiff. 8 Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by 9 Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, In considering a motion to dismiss, the Scheuer v. 10 322 (1972). 11 are not entitled to the assumption of truth. 12 129 S. Ct. 1937, 1950 (2009) (citing Bell Atl. Corp. v. Twombly, 13 550 U.S. 544, 555 (2007)). 14 plaintiff needs to plead “enough facts to state a claim to relief 15 that is plausible on its face.” 16 Dismissal is appropriate where the plaintiff fails to state a claim 17 supportable by a cognizable legal theory. 18 Police Dep‟t, 901 F.2d 696, 699 (9th Cir. 1990). 19 Assertions that are mere “legal conclusions,” however, Ashcroft v. Iqbal, To survive a motion to dismiss, a Twombly, 550 U.S. at 570. Balistreri v. Pacifica Upon granting a motion to dismiss for failure to state a 20 claim, the court has discretion to allow leave to amend the 21 complaint pursuant to Federal Rule of Civil Procedure 15(a). 22 “Dismissal with prejudice and without leave to amend is not 23 appropriate unless it is clear . . . that the complaint could not 24 be saved by amendment.” 25 316 F.3d 1048, 1052 (9th Cir. 2003). Eminence Capital, L.L.C. v. Aspeon, Inc., 26 B. 27 In this case, both parties submit requests for judicial 28 notice. Judicial Notice Generally, the Court may not consider material beyond the 3 1 pleadings in ruling on a motion to dismiss for failure to state a 2 claim. 3 the complaint so long as authenticity is not disputed, or matters 4 of public record, provided that they are not subject to reasonable 5 dispute. 6 (C.D. Cal. Mar. 30, 2009) (citing Lee v. City of Los Angeles, 250 7 F.3d 668, 688 (9th Cir. 2001) and Fed. R. Evid. 201). 8 The exceptions are material attached to, or relied on by, E.g., Sherman v. Stryker Corp., 2009 WL 2241664 at *2 Plaintiff filed an “Exhibit Index and Exhibits A-L to 9 Plaintiff‟s First Amended Complaint,” attaching the Legal 10 Description of Property, Grant Deed, Deed of Trust, Full 11 Reconveyance (August 16, 2005), Full Reconveyance (August 22, 12 2005), Substitution of Trustee (October 20, 2005), Full 13 Reconveyance (October 20, 2005), Deed of Realty in Trust (April 17, 14 2008), Notice of Default, Substitution of Trustee (October 28, 15 2010), Notice of Trustee‟s Sale, and Deed of Trust [Second 16 Mortgage] (Doc. #12-2, Exs. A-L). 17 this Court take judicial notice of the Deed of Trust, Notice of 18 Default, Substitution of Trustee (October 28, 2005), and Notice of 19 Trustee‟s Sale. 20 Doc. #16-2, Exs. A-D. 21 request, and because he relies on these documents in his Complaint, 22 this Court will GRANT Defendants‟ request and take judicial notice 23 of the Deed of Trust, Substitution of Trustee (October 28, 2005), 24 Notice of Default, and Notice of Trustee‟s Sale (Defs.‟ RJN, 25 Exhibits A-D) in accordance with Federal Rule of Evidence 201. Defendants also request that See Defs‟ Request for Judicial Notice (“RJN”), As Plaintiff did not object to Defendants‟ 26 Plaintiff also included a request for judicial notice in his 27 Opposition to Defendants‟ Motion to Dismiss, asking this Court to 28 consider two consent orders entered by federal agencies and signed 4 1 by personnel associated with various defendants in this litigation 2 (Doc. #32-1, Exs. A-B). 3 pending motion to dismiss, and this case, and Plaintiff‟s request 4 as to Exhibits A and B to his Opposition is accordingly DENIED. 5 See Fed. R. Evid. 201. 6 C. 7 8 9 These documents are irrelevant to the Motion to Dismiss 1. Defendant Recontrust‟s Standing to Foreclose As a threshold matter, Plaintiff argues that Recontrust did not have standing to initiate proceedings pursuant to California‟s 10 non-judicial foreclosure statutes. Whether or not Reconstruct was 11 the correct entity to proceed with the foreclosure bears on 12 multiple causes of action in Plaintiff‟s Amended Complaint. 13 Court addresses this preliminary issue first. The 14 Plaintiff specifically alleges that Recontrust was not 15 properly made trustee prior to the October 26, 2010 filing of the 16 Notice of Default because the Substitution of Trustee was not 17 recorded until two days later on October 28, 2010. 18 responds that the Substitution of Trustee does not need to be 19 recorded to be valid. Defendant 20 Cal. Civ. Code § 2934(a)(1) clearly states that a trustee “may 21 be substituted by the recording in the county in which the property 22 is located of a substitution executed. 23 § 2934(a)(1). 24 either all of the beneficiaries to the deed of trust or at least 25 50% of the beneficiaries of a series of notes secured by the 26 property. 27 proceed with a non-judicial foreclosure, a notice of default must 28 be recorded by the trustee, mortgagee, or beneficiary of the deed . . .” Cal. Civ. Code The executed substitution must be acknowledged by Cal. Civ. Code §§ 2934(a)(1)(A)-(B). 5 In order to 1 of trust. 2 requirements must be strictly complied with, and a trustee's sale 3 based on a statutorily deficient notice of default is invalid.” 4 Anderson v. Heart Fed. Sav. & Loan Ass'n, 256 Cal. Rptr. 180, 185 5 (Ct. App. 1989) (internal citations omitted). 6 Cal. Civ. Code § 2924(a)(1). “The statutory In this case, the Court relies on the facts as stated in 7 Plaintiff‟s Amended Complaint and the documents attached to his 8 complaint, which were also included in Defendants‟ request for 9 judicial notice. Plaintiff alleges that Recontrust was substituted 10 as trustee when Recontrust recorded the Notice of Substitution on 11 October 28, 2010, two days after the Notice of Default was filed on 12 October 26, 2010. 13 of substituted trustee was not necessary fails in light of the 14 statutory requirement to record the notice. 15 § 2934a(a)(1). 16 of Trustee must be recorded is supported by California case law. 17 Pro Value Props., Inc. v. Quality Loan Serv. Corp., 88 Cal.Rptr.3d 18 381, 383 (Ct. App. 2009) (“[The purported trustee] was not the 19 trustee named in the deed of trust, and so was required to record a 20 Substitution of Trustee pursuant to Civil Code section 2934a.”); 21 Anderson, 256 Cal. Rptr. at 185 (the statutory notice requirements 22 must be strictly complied with). 23 Defendants‟ response that recording the notice Cal. Civ. Code Further, Plaintiff‟s argument that a Substitution While the Substitution of Trustee appointing Reconstruct as 24 trustee on the Deed of Trust was recorded two days after the Notice 25 of Default, this deficiency does not necessarily entitle Plaintiff 26 to relief. 27 1, 2011, the purported trustee filed a notice of default before it 28 was actually substituted as trustee. In Ferguson v. Avelo Mortg., LLC, as modified on June 6 126 Cal.Rptr.3d 586, 595 (Ct. 1 App. 2011). The problem was cured three months later by the time 2 the notice of sale was recorded, and the Court of Appeals upheld 3 the resulting sale. 4 that a one minute lag between recording a substitution of trustee 5 and a notice of default was not a sufficient basis to void an 6 otherwise proper notice of default. 7 Farms, 116 Cal. Rptr. 44, 55 (Ct. App. 1974). 8 plaintiff to state a claim based on a tardily recorded substitution 9 of trustee, the plaintiff‟s complaint must allege some prejudice Id. Further, another California court held U. S. Hertz, Inc. v. Niobrara In order for a 10 resulting from the deficiency. 11 Mortgate Funding, Inc., No. S–11–0642 KJM EFB, 2011 WL 3818560, at 12 *21 (E.D. Cal. Aug. 29, 2011). 13 complaint does not allege that his rights were prejudiced by the 14 two day delay in recording the Substitution of Trustee. 15 such an allegation, Plaintiff has not pleaded that the Notice of 16 Default was statutorily deficient. 17 55. 18 Id.; Pedersen v. Greenpoint In the present matter, Plaintiff‟s Without U. S. Hertz, 116 Cal. Rptr. at For these reasons, the Court finds that Plaintiff has failed 19 to allege that Defendant Reconstruct lacked standing to initiate 20 foreclosure proceedings against the Property. 21 22 23 2. Federal Claims for Relief a. Violations of Truth in Lending Act Plaintiff alleges that Defendants violated the Truth in 24 Lending Act (“TILA”), 15 U.S.C. § 1605, and Regulation Z, 12 C.F.R. 25 §§ 226.4, 226.18, by failing to make required disclosures. 26 Compl. ¶¶ 55-56. 27 his claim within the time period required by TILA, and that the 28 claim was not properly pleaded. Am. Defendants argue that Plaintiff failed to file 7 1 Plaintiff lists a number of disclosures that Defendants 2 allegedly failed to make, as required by TILA, when the loan was 3 created. 4 without argument in his Opposition. 5 Defendants‟ argument rests on a conclusory statement that 6 “Plaintiff generically refers to the fact that „certain charges‟ 7 were [sic] failed to be disclosed,” but Defendants do not address 8 the specific deficiencies identified in the Amended Complaint. 9 MTD, at 5. He re-lists the alleged faulty disclosures essentially Am. Compl. ¶ 56; Opp., at 16. While the deficiencies identified by Plaintiff might be 10 sufficient to defeat this motion to dismiss, Defendants also raise 11 the statute of limitations and Plaintiff‟s failure to plead tender 12 to support dismissal, which makes it unnecessary for the Court to 13 determine if the alleged nondisclosures state a claim upon which 14 relief can be granted. 15 The statute of limitations for a TILA damages claim is one 16 year from the occurrence of a violation. 17 Under 15 U.S.C. § 1635(f), TILA rescission claims expire three 18 years after the date of consummation of the transaction, or upon 19 sale of the property, whichever occurs first. 20 periods for both damages and rescissions actions run from the date 21 of consummation of the transaction. 22 Services, LLC, 2011 WL 1601593, *2 (E.D. Cal. April 27, 2011) 23 (citing King v. California, 784 F.2d 910, 915 (9th Cir.1986)). 24 15 U.S.C. § 1640(e). The limitations Wadhwa v. Aurora Loan In this case, Plaintiff filed his original Complaint on March 25 1, 2011 more than five years after the loan was executed in July 26 2005. 27 was outside of both TILA limitations periods. Thus, the Court finds that the filing of the present action 28 8 1 Plaintiff does not disagree that the action was filed outside 2 of the applicable limitations period, but argues that the 3 limitations period should be tolled by the Court. 4 argument is that the statute of limitations should be tolled 5 because he is a lay person unfamiliar with federal and state law. 6 He also argues that as an alleged victim of fraud, he did not have 7 a reasonable opportunity to discover Defendant‟s fraudulent 8 activities with respect to the loan. 9 Plaintiff‟s Opp., at 11-12. In the Ninth Circuit, “[e]quitable tolling may be applied if, 10 despite all due diligence, a plaintiff is unable to obtain vital 11 information bearing on the existence of his claim.” 12 Pacific Bell, 202 F.3d 1170, 1178 (9th Cir. 2000) (citing Holmberg 13 v. Armbrecht, 327 U.S. 392, 397 (1946)). 14 15 16 17 18 19 Santa Maria v. Importantly: [E]quitable tolling does not depend on any wrongful conduct by the defendant to prevent plaintiff from suing. Instead it focuses on whether there was excusable delay by the plaintiff. If a reasonable plaintiff would not have known the existence of a possible claim within the limitations period, then equitable tolling will serve to extend the statute of limitations for filing suit until plaintiff can gather what information he needs. 20 Id. (citing Thelen v. Marc‟s Big Boy Corp., 64 F.3d 264, 268 (7th 21 Cir. 1995)) (other citations omitted). 22 Plaintiff failed to plead facts in his Amended Complaint 23 sufficient to meet the due diligence requirement for equitable 24 tolling. 25 of Defendants‟ actions in November 2010 because the alleged non- 26 disclosures and fraudulent actions of Defendants were not apparent 27 from the face of the loan documents. 28 other, Plaintiff pleaded that “upon inspection of the [Deed of On the one hand, Plaintiff pleaded that he first learned 9 Am. Compl. ¶ 63. On the 1 Trust] and Note [received in 2005], Plaintiff began to question 2 whether those documents had been properly drafted.” 3 ¶ 58. 4 investigating the improperly drafted documents in 2005, when he 5 received them. 6 he was diligent through other means in trying to discover 7 Defendants‟ alleged fraud. 8 Mortgageclose.Com, Inc., No. 2:10–CV–2153–JAM–KJN, 2011 WL 2621010, 9 at *3 (E.D. Cal. June 30, 2011) (finding a very similar TILA claim, Am. Compl. Plaintiff does not explain his lack of diligence in Further, Plaintiff alleges no facts that show that Compare Von Brincken v. 10 filed by Plaintiff‟s counsel, was barred by the statute of 11 limitations and that plaintiff failed to plead facts supporting the 12 application of equitable tolling in his second amended complaint). 13 Since Plaintiff did not plead facts sufficient to justify equitable 14 tolling, the Court declines to toll the statute of limitations. 15 Finally, Defendants argue that Plaintiff‟s TILA claim should 16 be dismissed because he failed to plead that he tendered or offered 17 to tender the full amount of the loan to the lender, which is a 18 condition for rescission under TILA. 19 tender requirement is necessary. 20 Plaintiff responds that no When a plaintiff seeks to rescind a loan under TILA, he must 21 first make an offer of complete tender. See e.g. Little v. Accent 22 Conservatory & Sunroom Designs, 2011 WL 2215816, at *3 (S.D. Cal. 23 June 7, 2011).2 24 argues that pleading tender is unnecessary. 25 is incorrect. Here, Plaintiff did not plead tender, but only Plaintiff‟s position 26 2 27 28 Plaintiff‟s counsel should be well aware of this rule, as a claim she filed on behalf of a different plaintiff was recently dismissed on the same grounds by this Court. Von Brincken v. Mortgageclose.Com, Inc., No. 2:10–CV–2153–JAM–KJN, 2011 WL 2621010, at *3 (E.D. Cal. June 30, 2011). 10 1 2 Accordingly, Plaintiff‟s TILA claim is dismissed without prejudice. 3 4 b. Violations of RESPA Plaintiff alleges that Defendants violated the Real Estate 5 Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2607, by 6 “except[ing] [sic] charges for the rendering of real estate 7 services which were in fact charges for other than services [sic] 8 actually performed. 9 . . .” Am. Compl. ¶ 65. RESPA proscribes referral fees or fee splitting “in 10 connection with a transaction involving a federally related 11 mortgage loan. 12 alleges that fees were collected to “purchase securities and the 13 attendant fees [sic] provided for in the MBST Master Sales and 14 Servicing Agreement.” 15 anywhere in the Amended Complaint or his Opposition what the MBST 16 is, or why the fees assessed were improper. 17 there is no indication in Plaintiff‟s pleading as to what the 18 charges were or how they were collected. 19 indication in the complaint as to what fees Plaintiff is referring 20 to, his claim cannot survive Defendants‟ motion. 21 . . .” 12 U.S.C. § 2607(a), (b). Am. Compl. ¶ 65. Plaintiff Plaintiff does not explain Defendants argue that MTD, at 6. Without some Plaintiff also alleges violations of 12 U.S.C. § 2605. As 22 Defendants argue and Plaintiff‟s Amended Complaint points out, 23 § 2605 requires a servicer to take certain actions when a Qualified 24 Written Request (“QWR”) is received. 25 ¶ 66. 26 anyone at all. 27 in this situation, and Plaintiff offers no explanation in his 28 Opposition to Defendants‟ motion. 12 U.S.C. § 2605; Amd. Compl. Plaintiff does not plead, however, that he sent a QWR to The Court is unable to determine how § 2605 applies 11 Opp., at 17-18. 1 Defendants also seek dismissal on the grounds that both of 2 these claims fall outside of the applicable statute of limitations. 3 MTD, at 6 (citing 12 U.S.C. § 2614). 4 limitations period should be tolled, but that argument fails for 5 the same reasons stated above. 6 7 Accordingly, Plaintiff‟s RESPA claims are dismissed without prejudice. 8 9 Plaintiff argues that the c. Violations of FCRA Plaintiff alleges that Defendants violated the Fair Credit 10 Reporting Act (“FCRA”), 15 U.S.C. § 1681, by “wrongfully, 11 improperly, and illegally report[ing] negative information as to 12 Plaintiff . . . resulting in Plaintiffs [sic] negative information 13 on their credit reports and lowering of their [sic] FICO scores.” 14 Am. Compl. ¶ 70. 15 reporting agencies” for purposes of FCRA, and that FCRA only 16 applies to credit reporting agencies. 17 argument is inapplicable because Plaintiff brings a claim under 18 § 1681s-2(b), which deals with entities that furnish information to 19 the credit reporting agencies. 20 2(b). 21 Defendants argue that they are not “credit MTD, at 7. Defendants‟ 15 U.S.C. §§ 1681n-1681o, 1681s- There is a private right of action for violations of section 22 1681s-2(b) of FRCA. Matracia v. JP Morgan Chase Bank, 2011 WL 23 1833092 at *3 (E.D. Cal. May 12, 2011). 24 such a claim, a plaintiff must allege that he had a dispute with a 25 credit reporting agency regarding the accuracy of an account, that 26 the credit reporting agency notified the furnisher of the 27 information, and that the furnisher failed to take the remedial 28 measures outlined in the statute. 12 Id. However, to succeed on Plaintiff has not pleaded 1 the requisite elements of this cause of action in his complaint, 2 namely that he first disputed the allegedly incorrect information 3 with the credit bureaus. 4 without prejudice. 5 d. 6 Accordingly, his FCRA claim is dismissed Civil Rico Violations Plaintiff alleges that Defendants participated in a conspiracy 7 through a pattern of racketeering activities, with multiple 8 entities and parties constituting a civil and criminal enterprise 9 designed to defraud Plaintiff in violation of the Civil Racketeer 10 Influenced and Corrupt Organizations Act (“RICO”). 11 Comp. at ¶¶ 93- 96. 12 To properly plead a civil RICO claim for damages, a plaintiff 13 must show that defendants, through two or more acts constituting a 14 pattern, participated in an activity affecting interstate commerce. 15 E.g., McAnelly v. PNC Mortgage, 2011 WL 318575 at *3 (E.D. Cal. 16 Feb. 1, 2011). 17 requirement “applies to civil RICO fraud claims.” 18 Park, Inc., 356 F.3d 1058, 1065-66 (9th Cir. 2004) (citing Alan 19 Neuman Prods., Inc. v. Albright, 862 F.2d 1388, 1392 (9th Cir. 20 1989)). Moreover, Rule 9(b)‟s heightened pleading Edwards v. Marin 21 Defendants correctly assert that Plaintiff‟s conclusory 22 allegations regarding the alleged RICO violations fall well short 23 of the Rule 9(b) particularity requirements. 24 Edwards, 356 F.3d at 1066. 25 while Plaintiff alleges the participation of multiple entities in 26 the RICO enterprise, he fails to establish what those entities are 27 and how they actually participated. 28 lack any substantiating facts, and this Court cannot discern from MTD, at 12-13; accord Defendants correctly point out that 13 Id. Plaintiff‟s allegations 1 Plaintiff‟s conclusory allegations whether or not there was a 2 pattern of racketeering. 3 4 Accordingly, Defendants‟ Motion to Dismiss is granted, and Plaintiff‟s RICO claim is dismissed without prejudice. 5 3. Plaintiff‟s State Law Claims 6 7 a. Fraud Plaintiff alleges that BANA concealed material information 8 from him, in violation of state and federal regulations. 9 Compl. ¶ 76. Am. Specifically, Plaintiff alleges that he was not 10 informed that his loan would be conveyed to a third party, or that 11 his loan payments were going to be used by Bank of America to pay 12 fees, buy insurance, and buy other credit enhancements on behalf of 13 a third party. 14 his pleading burden because he failed to allege the necessary 15 elements to support his fraud claim. 16 Id. Defendants respond that Plaintiff has not met MTD, at 8-9. Federal Rule of Civil Procedure 9(b) provides a heightened 17 pleading standard, which applies to all “averments of fraud,” 18 regardless of whether or not “fraud” is an essential element of the 19 claim. 20 Cir. 2003). 21 mistake, a party must state with particularity the circumstances 22 constituting fraud or mistake,” meaning a plaintiff must plead the 23 “time, place, and specific content of the false representations, as 24 well as the identities of the parties to the misrepresentations.” 25 Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir. 2007) (internal 26 quotations and citations omitted). Vess v. Ciba-Geigy Corp., 317 F.3d 1097, 1103-1105 (9th Rule 9(b) provides that “[i]n alleging fraud or 27 28 14 1 2 Importantly, when a plaintiff pleads a claim for fraud against multiple defendants: 3 Rule 9(b) does not allow a complaint to merely lump multiple defendants together but requires plaintiff[ ] to differentiate [his] allegations when suing more than one defendant . . . and inform each defendant separately of the allegations surrounding his alleged participation in the fraud. . . . [A] plaintiff must, at a minimum, identify the role of each defendant in the alleged fraudulent scheme. 4 5 6 7 8 Id. at 764-65 (quotations omitted). 9 Defendants correctly assert that Plaintiff‟s allegations of 10 fraud are conclusory and lack the specificity required by Rule 11 9(b). 12 detail regarding the time, place, or specific content of the 13 alleged misrepresentations by Defendants. 14 While Plaintiff does allege specific misrepresentations made by 15 BANA, he does not detail the time or place of those alleged 16 misrepresentations. 17 reverts to allegations of fraud against “BANK OF AMERICA and/or 18 RECONTRUST,” which fails to specify with the particularity required 19 by Rule 9(b) which Defendant committed the alleged fraud, but 20 instead lumps them together under general allegations. 21 80. 22 MTD, at 8-9. Indeed, Plaintiff does not present any factual Id. ¶ 76. Am. Compl. ¶¶ 76-77. In the next paragraph, Plaintiff Id. ¶ 77- Defendants also point out that Plaintiff‟s claim is barred by 23 the applicable three-year statute of limitations. 24 Civ. Proc. Code § 338. 25 conclusory statement regarding the equitable tolling under his 26 fraud claim as he does under his federal claims, discussed above, 27 which lacks the factual specificity required to toll the 28 limitations period. MTD, at 8; Cal. Plaintiff‟s Complaint includes the same Compl. at ¶ 85. 15 1 Because Plaintiff‟s fraud claim as currently pled is time- 2 barred and his Complaint fails to meet the pleading standard set by 3 Rule 9(b), Plaintiff‟s fraud claim is dismissed without prejudice. 4 5 b. Unjust Enrichment Plaintiff alleges that Defendants retained “benefits from 6 their actions of charging a higher interest rate, fees, rebates, 7 kickbacks, profits . . . and gains and yield spread premium fees, 8 fees paid to Server, unrelated to the settlement services provided 9 at closing [sic],” unjustly, and to Plaintiff‟s detriment. 10 11 Comp. at ¶¶ 86-87. Many California courts have made clear that unjust enrichment 12 is not a cause of action. 13 Cal.App.4th 901, 911 (2008) (citing Melchior v. New Line Products, 14 106 Cal.App.4th 779, 793 (2003)). 15 law, it is well settled that an action based upon an implied-in- 16 fact contract or quasi-contract cannot lie where there exists a 17 valid express contract covering the same subject matter between the 18 parties. 19 *7 (E.D. Cal. May 3, 2011). 20 law that supports the viability of such a claim. 21 21-22. 22 See, e.g., Jogani v. Superior Court,165 Additionally, under California Solano v. America‟s Servicing Company, 2011 WL 1669735 at Notably, Plaintiff does not present See Opp. at pgs. Because Plaintiff has pled an uncognizable claim, Defendants‟ 23 Motion to Dismiss is granted and Plaintiff‟s claim for unjust 24 enrichment is dismissed. 25 be futile as to this claim, as it is not recognized under 26 California law, and Plaintiff is not entitled to implied-in-fact or 27 quasi-contract relief due to the relationship between the parties. 28 See Jogani, 165 Cal.App.4th at 911 (citing Melchior v. New Line It is clear that allowing amendment would 16 1 Products, 106 Cal.App.4th 779, 793 (2003)). 2 Plaintiff‟s claim for unjust enrichment is dismissed with 3 prejudice. 4 5 c. Accordingly, Breach of Security Instrument Plaintiff alleges that Defendants improperly foreclosed on his 6 property for a number of reasons: 1) only the Lender can initiate 7 foreclosure according to the Deed of Trust, 2) the Substitution of 8 Trustee is void due to fraud and because it was not executed by the 9 Lender, 3) the Notice of Default was recorded prior to the 10 assignment of the loan, and 4) Defendants failed to meet their 11 obligations under the Deed of Trust prior to initiating foreclosure 12 proceedings. Am. Compl. ¶¶ 117-118. 13 Preliminarily, the Court notes with great concern that 14 Plaintiff‟s Amended Complaint refers to several entities that are 15 not parties to the present action. 16 Quality Loan and Financial Title Company). 17 refers to documents and dates that contradict allegations made in 18 other parts of Plaintiff‟s Amended Complaint. 19 Substitution of Trustee involving Quality Loan on November 25, 20 2009). 21 of the Amended Complaint from pleadings prepared for other cases, 22 causing significant inconsistencies with the pleading. 23 errors make it difficult to ascertain the nature of Plaintiff‟s 24 allegations. 25 and paste” pleadings are strongly discouraged by this Court. 26 Am. Compl. ¶ 117 (referencing This section also Id. (Referring to It appears that Plaintiff‟s counsel cut and paste portions These For this reason, among others, boilerplate or “cut The Court now addresses each of the allegations listed under 27 this cause of action. Plaintiff‟s allegation that only the Lender, 28 according to the Deed of Trust, may initiate foreclosure 17 1 proceedings is contradicted by the plain language of the Deed of 2 Trust. 3 sale, Lender shall execute or cause Trustee to execute a written 4 notice of an event of default and of Lender‟s election to cause the 5 Property to be sold.” 6 The Deed of Trust permits the Trustee to, upon the Lender‟s 7 authorization, initiate foreclosure proceedings. 8 9 The Deed of Trust states, “If Lender invokes the power of Am. Compl. Ex. C, at 9 (emphasis added). The Substitution of Trustee is not void, as discussed above. See supra Part II.C.1. Plaintiff‟s conclusory reassertion that the 10 Substitution of Trustee was fraudulent does not meet the pleading 11 standard contained in Rule 9(b), as discussed above. 12 Plaintiff alleges that the Notice of Default was not recorded 13 prior to the assignment of the loan. 14 that the loan was ever assigned, and the documents attached to the 15 Amended Complaint indicate that the loan was never assigned making 16 these allegations irrelevant. 17 Plaintiff has not alleged Finally, Plaintiff alleges that Defendants failed to comply 18 with “any of the expressed provisions of the Deed of Trust.” Am. 19 Compl., at 33. 20 properly recorded and were valid. 21 that Plaintiff has failed to sufficiently allege that the Notice of 22 Default and Substitution of Trustee are invalid. 23 II.C.1. 24 with “any expressed provisions of the Deed of Trust” does not meet 25 the applicable pleading standard. 26 were dismissed as conclusory and vague in Von Brincken v. 27 Mortgageclose.Com, Inc., No. 2:10–CV–2153–JAM–KJN, 2011 WL 2621010, 28 at *7 (E.D. Cal. June 30, 2011), and Matracia v. JP Morgan Chase Defendants argue that the necessary notices were MTD, at 19. The Court agrees See supra Part Further, the allegation that Defendants failed to comply 18 Nearly identical allegations 1 Bank, NA, No. CIV. 2:11–190 WBS JFM, 2011 WL 1833092, at *5–6 (E.D. 2 Cal. May 12, 2011). 3 failed to state a claim for breach of the security instrument, and 4 the claim is dismissed without prejudice. 5 6 d. This Court likewise finds that Plaintiff has Wrongful Foreclosure Plaintiff alleges that Defendants did not have standing to 7 foreclose, and if they did have standing, that they failed to 8 comply with California Corporations Code § 313 and California Civil 9 Code § 2923.5. 10 Defendants respond that they did have standing to foreclose, and that they complied with the statutory requirements. 11 As discussed in Part II.C.1, supra, Plaintiff‟s claim that 12 Defendants did not have standing to foreclose is not adequately 13 pleaded. 14 Plaintiff claims that the Substitution of Trustee is not valid 15 because the individual did not list his corporate capacity along 16 with his signature, as required by California Corporations Code 17 § 313. 18 that the signatory list his corporate capacity. 19 that certain officers may bind a corporation, even if they lack 20 actual authority, so long as the other party to the agreement or 21 instrument signed is unaware that they lack authority. 22 Code § 313. 23 Am. Compl. ¶ 120. Section 313, however, does not require It merely states Cal. Corps. Plaintiff also alleges that he was not contacted as required 24 by California Civil Code § 2923.5. The purpose of the contact is 25 for the entity that wishes to foreclose to discuss the borrower‟s 26 financial position and potential alternatives to foreclosure. 27 Civ. Code § 2923.5(a)(2). 28 California Civil Code § 2923.5(g), due diligence to contact the Defendant argues that pursuant to Cal. 19 1 borrower is sufficient. 2 California Civil Code § 2923.5(g) permits a foreclosure to 3 proceed without actual contact with the borrower if the foreclosing 4 entity exercised due diligence in attempting to contact the 5 borrower. 6 only alleges that he was not contacted. 7 Notice of Default, attached to the Amended Complaint, indicates 8 that Defendants relied on the due diligence exception contained in 9 § 2923.5(g). Cal. Civ. Code § 2923.5(g). In this case, Plaintiff The declaration in the Since Plaintiff only alleged that he was not 10 contacted, but did not also allege a lack of due diligence on the 11 part of Defendants, this claim is also insufficiently pleaded. 12 13 Accordingly, Plaintiff‟s Wrongful Foreclosure claim is dismissed without prejudice. 14 e. 15 16 California Business and Professions Code § 17200 Plaintiff alleges that “Defendants [sic] conduct overall 17 supports a cause of action under B&P Code § 17200.” 18 His argument is that he experienced a wrongful foreclosure, which 19 was just another example of Defendants‟ unlawful pattern and 20 practice of wrongfully foreclosing on property within California. 21 Id. 22 necessarily relies on the validity of his other claims. 23 agrees. 24 Opp., at 24. Defendants point out that Plaintiff‟s cause of action The Court Since Plaintiff has not successfully pleaded a cause of action 25 for wrongful foreclosure, and Plaintiff‟s Business & Professions 26 Code claim rests solely on Defendants‟ alleged wrongful foreclosure 27 on Plaintiff‟s home, this cause of action is dismissed without 28 prejudice. 20 1 f. Quiet Title 2 Plaintiff alleges that the “real party in interest on the 3 lender‟s side may be the owner of the asset-backed security issued 4 by the servicing and pooling vendor, the insurer . . ., or the 5 Federal Government. 6 Plaintiff seeks to quiet title. 7 . . .” Compl. ¶ 130. On this basis, In order to plead a claim to quiet title, the complaint must 8 state: (1) a legal description of the property; (2) the title of 9 the plaintiff and the basis of the title; (3) the adverse claims to 10 the title of the plaintiff; (4) the date as of which the 11 determination is sought; and (5) a prayer for the determination of 12 the title of the plaintiff against adverse claims. 13 Code § 761.020. 14 against the mortgagee without paying the debt secured.” 15 v. America‟s Wholesale Lenders, 2010 WL 1525703 at *2 (E.D. Cal. 16 April 15, 2010) (quoting Santos v. Countrywide Home Loans, 2009 WL 17 3756337 at *4 (E.D. Cal. Nov. 6, 2009)). 18 Cal. Civ. Proc. Importantly, “[a] mortgagor cannot quiet his title Dyachishin Defendants correctly assert that Plaintiff‟s complaint 19 completely fails to present facts substantiating the requisite 20 elements for a claim to quiet title, and Plaintiff has not alleged 21 his ability to tender. 22 1525703 at *2-3 (E.D. Cal. April 15, 2010). 23 allegations within this claim indicate that he believes that none 24 of the present Defendants actually lent him money, or at least they 25 do not currently have a beneficial interest in the mortgage. 26 Compl. ¶¶ 20, 25, 130. 27 Plaintiff has not adequately pleaded that Recontrust lacks standing 28 to foreclose. MTD, at 19-20; accord Dyachishin, 2010 WL Plaintiff‟s Am. As explained in Part II.C.1, supra, Further, the documents attached to the Amended 21 1 Complaint by Plaintiff indicate that he executed a Deed of Trust 2 with Defendant BANA to secure a loan taken on the Property. 3 Compl. Ex. C. 4 factual support do not satisfy the pleading standard of Rule 8. 5 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (plaintiff 6 needs to plead “enough facts to state a claim to relief that is 7 plausible on its face.”). Am. Plaintiff‟s conclusory claims pleaded without any 8 Accordingly, Defendants‟ Motion to Dismiss is GRANTED, and 9 Plaintiff‟s cause of action to quiet title is dismissed without 10 prejudice. 11 12 III. ORDER 13 After carefully considering the papers submitted in this 14 matter, it is hereby ordered that Defendant‟s Motion to Dismiss is 15 GRANTED, as follows: 16 17 18 19 20 21 22 23 24 25 26 27 28 1. Plaintiff‟s claim for violations of Truth in Lending Act is dismissed without prejudice; 2. Plaintiff‟s claim for violations of the Real Estate Settlement Procedures Act is dismissed without prejudice; 3. Plaintiff‟s claim for violations of the Fair Credit Reporting Act is dismissed without prejudice; 4. Plaintiff‟s claim for fraud is dismissed without prejudice; 5. Plaintiff‟s claim for unjust enrichment is dismissed with prejudice; 6. Plaintiff‟s claim for civil RICO violations is dismissed without prejudice; 7. Plaintiff‟s claim for violations of California Business & 22 1 2 3 4 5 6 7 8 9 10 11 12 Professions Code § 17200 is dismissed without prejudice; 8. Plaintiff‟s claim for breach of security instrument is dismissed without prejudice; 9. Plaintiff‟s claim for wrongful foreclosure is dismissed without prejudice; 10. Plaintiff‟s claim to quiet title is dismissed without prejudice. If Plaintiff wishes to file an Amended Complaint that is in accordance with this Order, it must be filed within twenty (20) days. Otherwise, Plaintiff should file a notice of dismissal. IT IS SO ORDERED. Dated: October 12, 2011 ____________________________ JOHN A. MENDEZ, UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23

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