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

Filing 31

MEMORANDUM AND ORDER signed by Chief Judge Morrison C. England, Jr on 11/21/12 ORDERING that Defendants' Motion to Dismiss 25 is GRANTED; Plaintiff's First Amended Complaint is DISMISSED without leave to amend. The Clerk is directed to close the file. CASE CLOSED. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JACK E. WHATLEY

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No. 2:11-cv-02901-MCE-GGH

Plaintiff,
v.

MEMORANDUM AND ORDER

BANK OF AMERICA, N.A.,
et al.,

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Defendants.
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----oo0oo----

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Plaintiff Jack E. Whatley (“Plaintiff”) initiated this

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action seeking damages and injunctive relief against Defendants

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Bank of America, N.A. (“BofA”), BAC Home Loans Servicing, LP

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(“BAC”), U.S. Bank National Association, as Trustee for the

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benefit of Harborview 2005-2 Trust Fund, and Mortgage Electronic

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Registration Systems, Inc., (collectively “Defendants”) as a

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result of Defendants’ conduct arising out of a loan issued to

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Plaintiff in connection with the purchase of his residence.

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Presently before the Court is Defendants’ Motion to Dismiss

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Plaintiff’s First Amended Complaint. (ECF No. 25.)
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For the reasons set forth below, Defendants’ Motion to Dismiss is

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GRANTED without leave to amend.1

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BACKGROUND2

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In approximately February of 2005, Plaintiff obtained a

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$560,000 loan to purchase a piece of residential property.

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Defendants’ Request for Judicial Notice (“RJN”), Exh. 1.3

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Plaintiff executed a promissory note and Deed of Trust in

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connection with that loan.

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and BAC were, at all relevant times, the loan servicers.

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(Id., Exhs. 1, 2.)

Defendants BofA

Plaintiff alleges that, a few years after origination of the

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loan, in approximately January of 2009, he contacted BofA by

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telephone via the entity’s customer service number and that the

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BofA representative with whom he spoke indicated Plaintiff “was

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not far enough behind [on his mortgage payments] to qualify for a

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loan modification.”

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advised Plaintiff that once he was far enough behind on his

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payments, he would qualify.

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(FAC ¶ 20.)

That representative purportedly

(Id.)

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Because oral argument will not be of material assistance,
the Court ordered this matter submitted on the briefing. E.D.
Cal. Local Rule 230(g).
2

Unless otherwise stated, the following facts are derived,
at times verbatim, from Plaintiff’s First Amended Complaint
(“FAC”), filed August 1, 2012. (ECF No. 24.)
3

The Court previously granted Defendant’s Request for
Judicial Notice pursuant to Federal Rule of Evidence 201(b).
(See ECF No. 17; ECF No. 23, at 2 n.3.)
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According to Plaintiff, he was also told by someone “that he

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would receive a modification if he became seriously delinquent

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and that BofA would give him a modification” because BofA would

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then receive related subsidies from the government.

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As a result, Plaintiff stopped making his mortgage payments.

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(Id. ¶ 51.)

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(Id. ¶ 50.)

Over the next nine months, BofA repeatedly advised Plaintiff

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that he was not far enough behind on his mortgage payments to

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apply for a loan modification.

(Id. ¶ 21.)

Plaintiff was

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further advised that he should continue calling back to inquire

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as to whether he was sufficiently behind in making his payments

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so that he could apply for the sought-after modification.

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¶ 24.)

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he was pre-approved for a modification pursuant to the Home

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Affordable Modification Program (“HAMP”).

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thereafter submitted and re-submitted multiple application

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packages and requested documents.

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subsequently advised his modification was being processed, but,

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ultimately, he was notified that his application had been closed

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and his property was going to be sold at a trustee’s sale.

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¶¶ 28, 46.)

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(Id.

Eventually, Plaintiff received a letter from BofA stating

(Id. ¶ 25.)

(Id. ¶ 29.)

Plaintiff

Plaintiff was

(Id.

Plaintiff initiated this lawsuit in Sacramento County

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Superior Court.

(Notice of Removal, ECF No. 1.)

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thereafter removed the action to this Court based on the Court’s

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diversity jurisdiction.

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Motion to Dismiss Plaintiff’s Complaint, which the Court granted

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with leave to amend.

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(Id.)

Defendants

Subsequently, Defendants filed a

(ECF No. 23.)

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Plaintiff then filed his FAC on August 1, 2012, alleging the

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following state-law causes of action: 1) Deceit; 2) Promissory

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Estoppel; 3) Wrongful Foreclosure; and 4) Violation of

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California’s Unfair Competition Law, Business and Professions

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Code §§ 17200, et seq. (“UCL”).

(ECF No. 24.)

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STANDARD

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On a motion to dismiss for failure to state a claim under

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Federal Rule of Civil Procedure 12(b)(6),4 all allegations of

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material fact must be accepted as true and construed in the light

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most favorable to the nonmoving party.

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Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996).

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“requires only ‘a short and plain statement of the claim showing

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that the pleader is entitled to relief,’ in order to ‘give the

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defendant fair notice of what the . . . claim is and the grounds

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upon which it rests.’”

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544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47

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(1957)).

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dismiss does not require detailed factual allegations.

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However, “a plaintiff’s obligation to provide the grounds of his

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entitlement to relief requires more than labels and conclusions,

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and a formulaic recitation of the elements of a cause of action

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will not do.”

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A court is not required to accept as true a “legal conclusion

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couched as a factual allegation.”

Cahill v. Liberty Mut.
Rule 8(a)(2)

Bell. Atl. Corp. v. Twombly, 550 U.S.

A complaint attacked by a Rule 12(b)(6) motion to

Id.

Id.

(internal citations and quotations omitted).

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4

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All further references to “Rule” or “Rules” are to the
Federal Rules of Civil Procedure unless otherwise noted.
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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly,

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550 U.S. at 555).

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The Court also is not required “to accept as true

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allegations that are merely conclusory, unwarranted deductions of

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fact, or unreasonable inferences.”

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Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (internal citations

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and quotations omitted). “Factual allegations must be enough to

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raise a right to relief above the speculative level.”

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550 U.S. at 555.

In re Gilead Sciences Sec.

Twombly,

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Furthermore, “Rule 8(a)(2) . . . requires a ‘showing,’

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rather than a blanket assertion, of entitlement to relief.”

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Twombly, 550 U.S. at 556 n.3 (internal citations and quotations

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omitted).

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is hard to see how a claimant could satisfy the requirements of

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providing not only ‘fair notice’ of the nature of the claim, but

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also ‘grounds’ on which the claim rests.”

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omitted).

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claim to relief that is plausible on its face.”

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the “plaintiffs . . . have not nudged their claims across the

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line from conceivable to plausible, their complaint must be

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dismissed.”

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even if it strikes a savvy judge that actual proof of those facts

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is improbable, and ‘that a recovery is very remote and

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unlikely.’”

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236 (1974)).

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“Without some factual allegation in the complaint, it

Id.

(citation

A pleading must contain “only enough facts to state a

Id.

Id. at 570.

If

However, “a well-pleaded complaint may proceed

Id. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232,

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Under Rule 9(b), however, a party alleging fraud or

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intentional misrepresentation must satisfy a heightened pleading

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standard by stating with particularity the circumstances

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constituting fraud.

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accompanied by ‘the who, what, when, where, and how’ of the

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misconduct charged.”

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1097, 1106 (9th Cir. 2003) (quoting Cooper v. Pickett, 137 F.3d

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616, 627 (9th Cir. 1997)).

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more than the neutral facts necessary to identify the

Specifically, “[a]verments of fraud must be

Vess v. Ciba-Geigy Corp. USA, 317 F.3d

Further, “a plaintiff must set forth

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transaction.

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misleading about a statement, and why it is false.”

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Decker v. GlenFed, Inc., 42 F.3d 1541, 1548 (9th Cir. 1994).

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The plaintiff must set forth what is false or
Id. (quoting

A court granting a motion to dismiss a complaint must then

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decide whether to grant a leave to amend.

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be “freely given” where there is no “undue delay, bad faith or

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dilatory motive on the part of the movant, . . . undue prejudice

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to the opposing party by virtue of allowance of the amendment,

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[or] futility of the amendment . . . .”

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178, 182 (1962); Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d

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1048, 1052 (9th Cir. 2003) (listing the Foman factors as those to

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be considered when deciding whether to grant leave to amend).

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However, dismissal without leave to amend is proper if it is

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clear that “the complaint could not be saved by any amendment.”

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Intri-Plex Techs., Inc. v. Crest Group, Inc., 499 F.3d 1048, 1056

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(9th Cir. 2007) (internal citations and quotations omitted).

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Leave to amend should

Foman v. Davis, 371 U.S.

ANALYSIS

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I.

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Plaintiff’s Deceit Claim.

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Plaintiff’s first cause of action alleges that Defendants

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BofA and BAC fraudulently induced Plaintiff to fall behind in

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making his mortgage payments by repeatedly making false

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statements about Defendant’s eligibility for a loan modification.

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(FAC ¶¶ 55-64.) “The elements of fraud, which gives rise to the

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tort action for deceit, are (a) misrepresentation (false

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representation, concealment, or nondisclosure); (b) knowledge of

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falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce

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reliance; (d) justifiable reliance; and (e) resulting damage.”

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Lazar v. Superior Court, 12 Cal. 4th 631, 638 (1996).

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the court looks to state law to determine if the elements of

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fraud have been properly pleaded, a plaintiff must still meet the

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federal standard to plead fraud with particularity.”

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Wachovia Mortg., FSB, 2011 WL 2784567, at *9 (N.D. Cal. July 13,

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2011).

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specificity required by Rule 9(b), meaning a plaintiff is

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required to plead “the ‘who, what, when, where, and how’ of the

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misconduct charged.”

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plaintiff is obligated to allege “what was false or misleading”

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about the defendant’s statements and “why it was false.”

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Lyons v. Bank of Am., NA, 2011 WL 3607608, at *7 (N.D. Cal.

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Aug. 15, 2011).

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“Although

Sato v.

Thus, this cause of action must be pled with the

Vess, 317 F.3d at 1106.

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Furthermore, a

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Here, Plaintiff bases his fraud claim on Defendant’s several

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alleged misrepresentations.5

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restructured the allegations contained in his initial complaint,

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the FAC offers essentially the same arguments that the Court

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previously rejected as insufficient to state a viable fraud

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claim.

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alleges that he “was informed by a representative of Defendant

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that he would be approved for a loan modification only if he

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became sufficiently delinquent on his monthly mortgage payments.”

While Plaintiff reworded and

(See ECF No. 23, at 8.)

In particular, Plaintiff again

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(FAC ¶ 57.)

However, Plaintiff’s FAC is devoid of any details

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regarding essential provisions of Defendants’ alleged promise,

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such as the delinquency requirements and the terms of the

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promised modification.

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allegations as to what the moving defendants . . . allegedly

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promised or represented” and “lacks facts to support fraud

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elements.”

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1303272, *12 (E.D. Cal. Mar. 31, 2011).

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again fails to demonstrate that the statement itself was false.

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In fact, it seems reasonable for Defendants to require

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delinquency before modifying a loan.

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Thus, Plaintiff’s FAC “lacks precise

See Dooms v. Fed. Home Loan Mortg. Corp., 2011 WL
Additionally, Plaintiff

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Plaintiff alleges that Defendants made the following false
statements: (1) “[Plaintiff] would be approved for a loan
modification only if he became sufficiently delinquent on his
monthly mortgage payments”; (2)”[Plaintiff] was conditionally
approved for a HAMP modification with a principal reduction”;
(3) “[Plaintiff] was eligible for a HAMP modification”;
(4) “[Plaintiff’s] application for a loan modification was still
in review and that he would be not be [sic] foreclosed upon
during the review period”; (5) “[Plaintiff] failed to provide all
documents that had been requested and was being denied a HAMP
modification as a consequence.” (FAC ¶¶ 57-62.)
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Finally, Plaintiff is unable to “identify how [Defendants’]

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representation is fraudulent.”

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2010 WL 318537, *8 (E.D. Cal. Jan. 20, 2010).

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See Mays v. U.S. Bank Nat. Ass.,

Plaintiff’s allegations concerning Defendants’ remaining

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statements fair no better.

Plaintiff again fails to specify what

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specific promises Defendants made and provides no facts

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demonstrating that Defendants acted with the intent to deceive

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Plaintiff.

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information, Plaintiff’s FAC “relies on mere notions of false

Rather than providing supporting details and

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advice and promises regarding foreclosure and loan modification

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and defrauding [Plaintiff] of [his] property.”

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2011 WL 1303272, at *12.

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See

Dooms,

Therefore, Defendants’ Motion to Dismiss Plaintiff’s first
cause of action is GRANTED.

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II.

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Plaintiff’s Promissory Estoppel Claim.

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Plaintiff’s second cause of action for promissory estoppel

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is based on the premise that Defendants promised Plaintiff a loan

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modification, and that he relied on this promise to his

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detriment. (FAC ¶¶ 65-95.)

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for promissory estoppel under California law, Plaintiff must

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adequately plead: “(1) a promise that is clear and unambiguous in

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its terms; (2) reliance by the party to whom the promise is made;

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(3) the reliance must be reasonable and foreseeable; and (4) the

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party asserting the estoppel must be injured by his or her

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reliance.”

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To properly allege a cause of action

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Boon Rawd Trading Intern. Co., Ltd. v. Paleewong Trading Co.,

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Inc., 688 F. Supp. 2d 940, 953 (N.D. Cal. 2010) (citation

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omitted).

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. . . preliminary discussions and negotiations.”

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Stores v. Wagnon, 97 Cal. App. 2d 915, 919 (1950).

Furthermore, “[e]stoppel cannot be established from
Nat’l Dollar

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In this case, Plaintiff fails to “plead a clear and

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unambiguous promise, as Plaintiff’s contentions are themselves

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unclear and ambiguous.”

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589639, at *5 (C.D. Cal. Feb. 22, 2012).

See Penny v. NDeX West LLC, 2012 WL
Plaintiff claims that

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Defendants’ representatives promised “that he would receive a

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HAMP modification” if his mortgage payments became “sufficiently

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delinquent.”

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details regarding the extent of the “promised” loan modification

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or exactly how delinquent he would need to be in order to receive

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the modification.

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the FAC fail to provide any insight into the scope and conditions

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of Defendants’ alleged promise.

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that some unspecified individual at the Defendant mortgage

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company agreed to modify Plaintiff’s loan on unspecified terms at

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an unspecified point in the future are insufficient to state a

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viable promissory estoppel claim.

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Inc., 2011 WL 2197534, at *13 (N.D. Cal. June 06, 2011).

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the parties failed to discuss even the most essential terms of

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the alleged loan modification, Defendants’ promise of such a

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modification is “too indefinite to be enforced.”

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JPMorgan Chase Nat. Corporate Services, Inc., 2012 WL 1378659, at

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*3 (C.D. Cal. Apr. 19, 2012).

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to Dismiss Plaintiff’s second cause of action is GRANTED.

(FAC ¶¶ 67, 94.)

However, Plaintiff offers no

Consequently, Plaintiff’s vague statements in

Plaintiff’s general allegations

See Melegrito v. CitiMortgage
Because

See Kassahun v.

Accordingly, Defendants’ Motion

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C.

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Plaintiff’s Wrongful Foreclosure Claim.

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Defendants move to dismiss Plaintiff’s third cause of action

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for wrongful foreclosure on the basis that, among other things,

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Plaintiff failed to allege an unconditional offer to tender the

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amount of the secured indebtedness.

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“Under California law, the ‘tender rule’ requires that as a

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precondition to challenging a foreclosure sale, or any cause of

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action implicitly integrated to the sale, the borrower must make

(ECF No. 25 at 12-13.)

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a valid and viable tender of payment of the secured debt.”

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Montoya v. Countrywide Bank, F.S.B., 2009 WL 1813973, at *11

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(N.D. Cal. June 25, 2009) (citations omitted).

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and viable tender of payment of the indebtedness owing is

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essential to an action to cancel a voidable sale under a deed of

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trust.”

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117 (1971).

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Thus, “[a] valid

Karlsen v. Am. Sav. & Loan Ass’n, 15 Cal. App. 3d 112,

Moreover, a plaintiff must “tender the obligation in full as

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a prerequisite to challenge of the foreclosure sale.”

U.S. Cold

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Storage v. Great W. Sav. & Loan Ass’n, 165 Cal. App. 3d 1214,

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1222 (1985).

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foreclosure sale on . . . technical ground[s], if the party

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making the challenge did not first make full tender and thereby

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establish his ability to purchase the property.”

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“The rules which govern tender are strict and are strictly

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applied.”

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1154, 1165 (1988).

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valid, it must be unconditional.”

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Indeed, “[i]t would be futile to set aside a

Id. at 1225.

Gaffney v. Downey Sav. & Loan Ass’n, 200 Cal. App. 3d
Moreover, “[f]or an offer of tender to be

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Christopher v. First Franklin Fin. Corp., 2010 WL 3895351, at *3

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(S.D. Cal. Sept. 29, 2010) (citing Karlsen, 15 Cal. App. 3d at

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118-20).

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In his FAC, Plaintiff “unconditionally offers to tender to

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the extent required by law any amount due and owing after offset

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for damages for wrongful foreclosure on the Subject Property, to

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the true beneficiary under the deed of trust or holder of the

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note in due course.”

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identical to Plaintiff’s previous tender offer, which this Court

(FAC ¶ 115.)

This tender offer is

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rejected by its July 13, 2012, Order.

(See ECF No. 1 Ex. 1, at

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17; ECF No. 23 at 11-12.)

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as pled, Plaintiff’s tender offer was conditioned on a variety of

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speculative findings and thus was insufficient to survive

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Defendants’ motion to dismiss.

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Plaintiff again makes his tender offer conditional on the Court’s

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findings as to who Plaintiff believes is owed his payments and

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what damages Plaintiff believes he has sustained to offset the

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amount owed.

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unconditional tender offer, his wrongful foreclosure claim

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fails.6

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The Court specifically explained that,

(ECF No. 23 at 11.)

Here,

Because Plaintiff has failed to make an

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In his Opposition, Plaintiff again makes a variety of
arguments as to why tender should be excused in his case. (ECF
No. 26 at 10-12.) Plaintiff’s arguments are nearly identical to
those that the Court rejected in its July 13, 2012, Order. (See
ECF No. 23 at 10-11.) Accordingly, Plaintiff’s attempts to evade
the tender requirement are once again rejected.

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See Christopher, 2010 WL 3895351, at *3 (concluding that the

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plaintiffs failed to allege unconditional tender where

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plaintiffs’ alleged that they were “willing and able to tender

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any amounts to the real and true owners of the original

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promissory note upon proof that the note is in the lawful

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possession of the true . . . owners and upon any credits paid by

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insurance in the event of a default”); see also Halajian v. Ndex

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West, L.L.C., 2012 WL 1969131, at *6-7 (E.D. Cal. May 31, 2012);

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McFadden v. Deutsche Bank Nat. Trust Co., 2011 WL 3606797, at *14

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(E.D. Cal. Aug. 16, 2011).

Thus, Defendants’ Motion to Dismiss

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Plaintiff’s third cause of action is GRANTED.

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D.

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Plaintiff’s UCL Claim.

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Plaintiff’s fourth cause of action alleges that Defendants’

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unlawful, unfair, and fraudulent business practices violated

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California’s UCL.

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“any unlawful, unfair or fraudulent business act.”

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Prof. Code § 17200.

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of the three prongs of the UCL-unlawful, unfair, or fraudulent.”

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Berryman v. Merit Prop. Mgmt., Inc., 152 Cal. App. 4th 1544, 1554

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(2007).

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“borrow[] violations of other laws and treat[] them as unlawful

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practices that the unfair competition law makes independently

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actionable.”

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Cellular Tel. Co., 20 Cal. 4th 163, 180 (1999).

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(FAC ¶¶ 116-122.)

The UCL makes actionable
Cal. Bus &

“An act can be alleged to violate any or all

Causes of action arising out of the “unlawful” prong

Cal-Tech Communications, Inc. v. Los Angeles

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“A UCL claim predicated on unfair business practices may be

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grounded upon a violation of a statute or be a ‘standalone’ claim

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based on an alleged act that ‘violates established public policy

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or if it is immoral, unethical, oppressive, or unscrupulous and

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causes injury to consumers which outweighs its benefits.’”

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Hovsepian v. Apple, Inc., 2009 WL 5069144, at *4 (N.D. Cal. Dec.

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17, 2009) (internal citations omitted).

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fraud prong may be brought based upon conduct akin to common-law

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fraud or an alleged course of conduct that is likely to deceive

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the public.”

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“requires an underlying violation of law, a defense to the

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predicate claim is a defense to the alleged violation of the UCL

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claim.”

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3353312, at *15 (N.D. Cal. Oct. 16, 2009).

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Id.

“A claim based upon the

Additionally, because a UCL cause of action

Hutson v. Am. Home Mortg. Servicing, Inc., 2009 WL

Plaintiff claims that Defendants breached all three of the

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UCL’s prongs.

(FAC ¶¶ 117-21.)

However, Plaintiff’s UCL cause

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of action does not provide additional details or allegations

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supporting the claim.

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his UCL claim on the FAC’s other three causes of action.

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plaintiff’s UCL cause of action is derivative of other claims,

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“[w]here those claims are deficient, Plaintiff’s UCL [cause of

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action] must also fail.”

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2011 WL 1044148, at *5 (S.D. Cal. Mar. 21, 2011).

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Court has already stated various reasons for dismissing

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Plaintiff’s other causes of action, and, consequently,

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Plaintiff’s UCL claim fails because it suffers from the same

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deficiencies.

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As a result, Plaintiff implicitly premises
When a

Beall v. Quality Loan Serv. Corp.,

14

Here, the

1

In his Opposition, Plaintiff contends that Defendants

2

engaged in fraudulent and unfair practices when “Defendants

3

deceived Plaintiff, like so many others, by promising them that

4

they would receive help with their mortgages, including receiving

5

a loan modification, if they became delinquent.”

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13.)

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both because it stems from Plaintiff’s other three causes of

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action and because Plaintiff does not provide the requisite

9

particularity.

(ECF No. 26, at

The Court’s prior Order explained that this argument fails

(ECF No. 23 at 13.)

Instead of rectifying the

10

highlighted deficiencies, Plaintiff simply repeats his previous

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arguments, nearly word-for-word.

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provide sufficient “facts supporting the statutory elements of

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the [UCL] violation,” see Khoury v. Maly’s of Cal., Inc.,

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14 Cal. App. 4th 612, 619 (1993), and does not adequately

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identify Defendants’ immoral or unethical act or the public

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policy that Defendants violated.

17

Banker, 543 F.3d 498, 506 (9th Cir. 2008).

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lack of details and information leaves Plaintiff unable to meet

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Rule 9(b)’s pleading requirements for fraud claims.

20

Countrywide Bank, 690 F. Supp. 2d. 1141, 1158 (E.D. Cal. 2010).

21

Thus, Plaintiff again fails to

See McDonald v. Coldwell
Moreover, the FAC’s

See Sipe v.

Therefore, Defendants’ Motion to Dismiss Plaintiff’s fourth

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cause of action is GRANTED.

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CONCLUSION

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3

As a matter of law, and for the reasons set forth above,

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Defendants’ Motion to Dismiss is GRANTED.

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provided Plaintiff with the opportunity to rectify the

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deficiencies of his complaint.

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better than Plaintiff’s earlier pleading and fails to remedy the

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numerous deficiencies previously highlighted by the Court.

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Therefore, the Court finds that any further leave to amend would

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be futile and dismisses Plaintiff’s FAC in its entirety WITHOUT

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LEAVE TO AMEND.

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file.

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The Court previously

However, Plaintiff’s FAC fairs no

The Clerk of the Court is directed to close the

IT IS SO ORDERED.
Dated: November 21, 2012

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_____________________________
MORRISON C. ENGLAND, JR.
UNITED STATES DISTRICT JUDGE

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