Schneider v. Bank of America N.A et al

Filing 138

ORDER signed by Judge Lawrence K. Karlton on 7/10/2014. Claim Fifteen, as asserted agaist FHLMC, is DISMISSED in its entirety, with prejudice. This matter is REMANDED to Magistrate Judge Brennan for Further Proceedings. (Marciel, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CHRISTOPHER D. SCHNEIDER,

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Plaintiff,

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No. CIV. S-11-2953 LKK/DAD PS

v.

ORDER

BANK OF AMERICA N.A., BANK OF
AMERICA MORTGAGE, BANK OF
AMERICA HOME LOANS SERVICING
LP, BALBOA INSURANCE CO.,
HOME RETENTION GROUP, QUALITY
LOAN SERVICE CORP., CLIFF
COLER, DOES 1-40,

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Defendants.

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Defendant Federal Home Loan Mortgage Corporation’s
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(“FHLMC”) application, tactfully entitled a “Request for
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Clarification” (ECF No. 134), will be considered to be a motion
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for reconsideration of this court’s May 21, 2014 order (ECF
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No. 132).

FHLMC is correct that it properly and timely joined

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the motion to dismiss filed by Bank of America, NA (“BANA”), BAC
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Home Loans Servicing LP, and Balboa Ins. Co.

See ECF No. 100.1

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Plaintiff opposes the request on the grounds that BANA
submitted a proposed order permitting FHLMC to join the motion,
but that the proposed order was never approved. See ECF No. 137.
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Accordingly, its Request is hereby GRANTED.

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FHLMC’s motion to dismiss, the court finds as follows:

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1.

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In reconsidering

Claim One.
a.

FHLMC’s motion to dismiss the portion of Claim One

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that is brought under the Real Estate Settlement Procedures Act

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(“RESPA”), 12 U.S.C. § 2605(e) and 3500.21, is GRANTED without

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leave to amend, as plaintiff has not alleged that he sent the

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required qualified written request (“QWR”) to FHLMC.

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Accordingly, this portion of Claim One, as asserted against
FHLMC, is DISMISSED in its entirety, with prejudice;2

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b.

FHLMC’s motion to dismiss that portion of Claim

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One that is brought under RESPA, 12 U.S.C. § 2609 and 24 C.F.R.

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§ 3500.17, is GRANTED for lack of a private right of action, as

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found by the Magistrate Judge (see ECF Nos. 132 at 8 and 123

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at 18).

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Accordingly, these portions of Claim One, as asserted
against FHLMC, are DISMISSED in their entireties, with prejudice;

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2.

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FHLMC’s motion to dismiss Claim Two, brought under

Claim Two.

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Regulation Z and the Truth in Lending Act, is GRANTED without

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leave to amend, because, as found by the Magistrate Judge, the

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claim contains no allegations relating to FHLMC, notwithstanding

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The court finds that FHLMC properly joined in the motion, and
that no order was needed to accomplish this.

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The rejected claims are dismissed with prejudice, as the
plaintiff has already had three attempts to plead correctly. It
appears that as to these claims, plaintiff cannot or will not
plead them correctly, and the court will not require defendant to
repeatedly move to dismiss inadequately pled claims.

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its presence in the title of the claim (see ECF No. 123 at 20-21

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& n.8).

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Accordingly, Claim Two, as asserted against FHLMC, is
DISMISSED in its entirety, with prejudice;
3.

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Claim Three.
a.

FHLMC’s motion to dismiss that portion of Claim

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Three that is brought under the Fair Debt Collection Practices

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Act (“FDCPA”), 15 U.S.C. §§ 1692e and 1692g, is GRANTED without

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leave to amend, as those provision of the FDCPA apply only to

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“debt collectors,” and as found by the Magistrate Judge,

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plaintiff does not allege that FHLMC is a debt collector (see ECF

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No. 123 at 25-26).

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Accordingly, the FDCPA portion of Claim Three, as asserted
against FHLMC, is DISMISSED in its entirety, with prejudice;

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b.

FHLMC’s motion to dismiss that portion of Claim

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Three that is brought under the California Rosenthal Act, Cal.

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Civil Code §§ 1788.13(b), is GRANTED without leave to amend, as

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this portion of the claim contains no allegations relating to

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FHLMC.

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Accordingly, there being no other allegations therein, Claim

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Three, as asserted against FHLMC, is DISMISSED in its entirety,

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with prejudice;

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4.

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FHLMC’s motion to dismiss Claim Four, brought under the Cal.

Claim Four.

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Civil Code § 2954(a)(1), is GRANTED without leave to amend, as

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this claim contains no allegations relating to FHLMC, except for

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an entirely conclusory allegation at the very end of the claim.

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Accordingly, Claim Four, as asserted against FHLMC, is
DISMISSED in its entirety, with prejudice;
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Claim Five.
a.

FHMLC’s motion to dismiss the Fraud and Negligent

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Misrepresentation portion of Claim Five, is GRANTED without leave

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to amend, as there is no allegation that plaintiff was deceived

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or justifiably relied upon the alleged fraudulent statements or

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misrepresentations (see ECF No. 132 at 25-26);

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b.

FHMLC’s motion to dismiss the Conspiracy portion

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of Claim Five, is GRANTED without leave to amend, as it is

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predicated upon the existence of a fraud or negligent

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misrepresentation which, as noted immediately above, was not

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alleged (see ECF No. 132 at 26-27).

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Accordingly, there being no other allegations therein, Claim
Five is DISMISSED in its entirety, with prejudice.

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6.

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FHLMC’s motion to dismiss Claim Six, the Breach of

Claim Six.

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Trust/Contract Claim, is GRANTED without leave to amend, because,

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as found by the Magistrate Judge, FHLMC is not alleged to be a

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party to the contract (see ECF Nos. 132 at 29-30 and 123 at 39).

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Accordingly, Claim Six, as asserted against FHLMC, is

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DISMISSED in its entirety, with prejudice;

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FHLMC’s motion to dismiss Claim Seven, for declaratory

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Relief, is GRANTED without leave to amend, as it is redundant of

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plaintiff’s other claims (see ECF No. 132 at 30).

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Claim Seven.

Accordingly, Claim Seven, as asserted against FHLMC, is
DISMISSED in its entirety, with prejudice;
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FHLMC’s motion to dismiss Claim Eight, for an Accounting, is

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Claim Eight.

DENIED, for the reasons stated at ECF No. 132 at 30-31;

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FHLMC’s motion to dismiss Claim Nine, for Conversion, is

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Claim Nine.

DENIED, for the reasons stated at ECF No. 132 at 31-32;

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10.

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FHLMC’s motion to dismiss Claim Ten, for Wrongful

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Claim Ten.

Foreclosure, is DENIED, for the reasons stated at ECF No. 132
at 32-33;

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FHLMC’s motion to dismiss Claim Eleven, for Breach of the

Claim Eleven.

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Covenant of Good Faith and Fair Dealing, is GRANTED without leave

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to amend, since as found by the Magistrate Judge, FHLMC is not

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alleged to be a party to the mortgage agreement (see ECF Nos. 132

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at 34-35 and 123 at 46-47).

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Accordingly, Claim Eleven, as asserted against FHLMC, is
DISMISSED in its entirety, with prejudice;

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12.

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FHLMC’s motion to dismiss Claim Twelve, for Negligence, is

Claim Twelve.

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GRANTED without leave to amend, for the reasons stated by the

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Magistrate Judge (see ECF Nos. 132 at 36 and 123 at 48-49);

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Accordingly, Claim Twelve, as asserted against FHLMC, is
DISMISSED in its entirety, with prejudice;

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13.

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FHLMC’s motion to dismiss Claim Thirteen, for Intentional

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Claim Thirteen.

Infliction of Emotional Distress, is GRANTED, for the reasons

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stated by the Magistrate Judge (see ECF Nos. 132 at 36 and 123

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at 49-50);

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Accordingly, Claim Thirteen, as asserted against FHLMC, is
DISMISSED in its entirety, with prejudice;

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14.

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FHLMC’s motion to dismiss Claim Fourteen, under Cal. Bus. &

Claim Fourteen.

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Prof. Code § 17200, is DENIED to the degree it is predicated on

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claims that have survived this motion, and otherwise GRANTED (see

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ECF No. 132 at 36);

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FHLMC’s motion to dismiss Claim Fifteen, asserted under the

Claim Fifteen.

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federal Racketeer Influenced and Corrupt Organizations Act

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(“RICO”), is GRANTED without leave to amend, for the reasons

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stated by the Magistrate Judge (see ECF Nos. 132 at 36-37 and 123

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at 28-29).

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Accordingly, Claim Fifteen, as asserted against FHLMC, is
DISMISSED in its entirety, with prejudice.
This matter is remanded to the Magistrate Judge for further
proceedings.

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IT IS SO ORDERED.

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DATED:

July 10, 2014.

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