Velasquez v. Chase Home Finance LLC et al

Filing 13

ORDER signed by Judge Lawrence K. Karlton on 3/16/2012 ORDERING because plaintiff has not raised a serious question and seems unlikely to succeed the merits of his claim, the motion for a preliminary injunction is DENIED. (Waggoner, D)

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UNITED STATES DISTRICT COURT
8
FOR THE EASTERN DISTRICT OF CALIFORNIA
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10

RODOLFO VELASQUEZ,
NO. CIV. S-12-0433 LKK/CKD PS

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12

Plaintiff,
v.
O R D E R

13

CHASE HOME FINANCE LLC,
FANNIE MAE, NDEx WEST LLC,

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Defendants.
15

/

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In this foreclosure case, plaintiff seeks a preliminary

17

injunction to restrain the sale of his home, located in Vallejo.

18

This court issued a Temporary Restraining Order on February 29,

19

2012. The TRO is set to expire on March 14, 2012, absent further

20

order from this court. For the reasons that follow, plaintiff’s

21

motion for a preliminary injunction is DENIED.

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I. Factual Background

23

The court has gathered the following factual allegations from

24

the complaint, ECF No. 1. Plaintiff and defendants are parties to

25

a residential mortgage pertaining to the property at 426 Idora

26

Avenue in Vallejo, California. Plaintiff is disabled and resides
1

1

in that home, which is modified to accommodate his disability. At

2

some point, plaintiff requested from defendant Chase Home Finance

3

a

4

mortgage. Defendant supplied plaintiff with a loan modification

5

application on three separate occasions. Plaintiff submitted the

6

first application in 2008.1 Plaintiff submitted a second loan

7

modification application to defendant Chase in May, 2011, and a

8

third in January 2012. According to plaintiff, the latter two loan

9

modifications have never been reviewed by Chase.

loan

modification

that

would

reduce

the

principal

of

his

10

Plaintiff alleges the following causes of action arising from

11

these facts: breach of contract, fraud and deceit and/or negligent

12

misrepresentation, negligence, RESPA violations, Unfair Competition

13

Law

14

foreclosure.

15

violations,

disability

discrimination,

and

wrongful

Defendants assert, in their opposition to the preliminary

16

injunction,

17

revolving around his home loan and foreclosure. The court takes

18

judicial

19

following facts.

20

On

that

notice

August

plaintiff

of

19,

has

documents

2009,

already

filed

plaintiff

by

filed

numerous

defendant

voluntarily

suits

showing

the

dismissed

a

21

complaint filed against defendants in the Northern District of

22

California (Alsup), No. 09-2409. On June 14, 2010, plaintiff filed

23

a second complaint against defendants in the Northern District

24
1

25
26

The 2008 loan modification application is the subject of
case filed by plaintiff in the Northern District of California.
Plaintiff asserts that that action “should be rendered moot” in
light of the subsequent loan modification applications.
2

1

Court (Illston) asserting causes of action that arise from his home

2

loan and foreclosure of the Vallejo property. That complaint was

3

dismissed with leave to amend as to some causes of action on August

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11, 2010. Plaintiff filed an amended complaint on August 26, 2010,

5

and the amended complaint was dismissed with prejudice on January

6

10, 2011. Plaintiff appealed that dismissal to the Ninth Circuit.

7

Plaintiff filed an adversary action against Chase Home Finance, LLC

8

on January 18, 2011. The Bankruptcy Court dismissed that proceeding

9

for lack of subject matter jurisdiction. Plaintiff then filed a

10

complaint against Chase Home Finance in Solano County Superior

11

Court on February 23, 2011. That case was removed to the Eastern

12

District Court (England), and ultimately dismissed on res judicata

13

grounds.

14

Circuit.

Plaintiff

has

appealed

that

dismissal

to

the

Ninth

15

The instant complaint alleges only claims arising from an

16

alleged promise made by Chase to review and plaintiff’s loan

17

modification applications.

18
19

II. Standard
Fed.

R.

Civ.

P.

65

injunctions

provides
or

authority

temporary

to

issue

20

preliminary

21

Ordinarily, a plaintiff seeking a preliminary injunction must

22

demonstrate that it is “[1] likely to succeed on the merits, [2]

23

that he is likely to suffer irreparable harm in the absence of

24

preliminary relief, [3] that the balance of equities tips in his

25

favor, and [4] that an injunction is in the public interest.”

26

Trucking Ass’ns v. City of Los Angeles, 559 F.3d 1046, 1052 (9th
3

restraining

either

orders.

Am.

1

Cir. 2009) (quoting Winter v. Natural Res. Def. Council, 129 S. Ct.

2

365, 374 (2008)). The requirements for a temporary restraining

3

order are largely the same.

4

Brush & Co., 240 F.3d 832, 839 (9th Cir. 2001); see also Wright and

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Miller, 11A Fed. Prac. & Proc. Civ. § 2951 (2d ed.). After Winter,

6

the

7

balancing the elements of the preliminary injunction test. “The

8

‘serious questions’ approach survives Winter when applied as part

9

of the four-element Winter test. In other words, ‘serious questions

10

going to the merits’ [rather than a likeliness of success on the

11

merits] and a hardship balance that tips sharply toward the

12

plaintiff can support issuance of an injunction, assuming the other

13

two elements of the Winter test are also met.” Alliance For The

14

Wild Rockies v. Cottrell, 632 F.3d 1127, 1132 (9th Cir. 2011).

Ninth

Circuit

Stuhlbarg Int’l Sales Co. v. John D.

modified

its

“sliding

scale”

approach

to

III. Analysis

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16

A. Likeliness of Success on the Merits

17

Defendant

argues

that

plaintiff’s

complaint

will

fail

18

primarily because the causes of action are based on an offer that

19

defendant

20

settlement of one of plaintiff’s prior lawsuits. Because evidence

21

of such offers are barred by FRE 408, defendant argues, plaintiff’s

22

claim will fail.

allegedly

made

in

the

context

of

negotiating

the

In his complaint, plaintiff alleges that he had a written and

23
24

oral

agreement

with

25

plaintiff

26

plaintiff’s financial situation, Chase would process plaintiff’s

provided

defendant
Chase

Chase

with

4

Bank

certain

(“Chase”)
documents

that

if

regarding

1

loan modification application. Plaintiff alleges that he provided

2

all of the requested documents in 2008, in May 2011, and again in

3

January 2012. Plaintiff also alleges that defendant Chase has not

4

reviewed or processed his loan modification applications, in breach

5

of the parties’ oral and written agreements. Plaintiff alleges that

6

absent such a breach, plaintiff would have been offered a loan

7

modification, and would have been able to afford his payments and

8

avoid foreclosure. Plaintiff also alleges that defendants’ conduct

9

revolving

around

the

alleged

agreement

to

review

the

loan

10

modification agreement constitutes fraud, negligence, violation of

11

RESPA, violation of California’s Unfair Competition Law, disability

12

discrimination, and wrongful foreclosure. Compl., ECF No. 1.

13

Defendant asserts that evidence of any agreement reached in

14

the context of settlement negotiations for the prior lawsuit is

15

inadmissible under Fed. R. Evid. 408. Attached as an exhibit to

16

plaintiff’s complaint is a letter dated January 12, 2012, and

17

referencing “USDC Eastern District of California Case No. 2:11-CV-

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01019-GEB-(JFM).” Ex. 1 to Compl., ECF No. 1. Defendant asserts

19

that this letter, which requests certain financial documents from

20

plaintiff in order for defendant to “further evaluate [plaintiff’s]

21

loan modification,” was sent in the course of settling plaintiff’s

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previously filed suit against the defendants.

23

Rule 408 provides that evidence of “furnishing or offering or

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promising to furnish. . . a valuable consideration in compromising

25

or attempting to compromise the claim” is inadmissible “when

26

offered to prove liability for a claim.” The purpose of the rule
5

1

is a policy of promoting the compromise and settlement of disputes.

2

Weinstein on Evidence Section 408.02.

3

However, “Rule 408 does not require the exclusion of evidence

4

regarding

5

litigated, though admission of such evidence may nonetheless

6

implicate

7

settlements which underlie Rule 408.” Towerridge, Inc. v. T.A.O.,

8

Inc., 111 F.3d 758 (10th Cir. 1997)(citations omitted). See also

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Zurich Am. Ins. Co. v. Watts Indus., 417 F.3d 682 (7th Cir. 2005)

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(The balance [between the need for the settlement evidence and the

11

potentially chilling effect on future settlement negotiations] is

12

especially likely to tip in favor of admitting evidence when the

13

settlement communications at issue arise out of a dispute distinct

14

from

15

Accordingly, even if this court were to ultimately find that the

16

letter offered as evidence of the agreement was sent as part of

17

settlement negotiations, the letter would not necessarily be barred

18

by Fed. R. Evid. 408.

the

the

the

one

settlement

same

for

of

concerns

which

a

of

the

claim

different

prejudice

evidence

is

and

from

the

deterrence

being

one

of

offered”).

19

Nonetheless, plaintiff appears unlikely to succeed on the

20

merits of his claims, and defendant’s opposition extinguishes any

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“serious question” that may have existed at the time this court

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issued the temporary restraining order.

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i. Breach of Contract

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In order to prevail on a breach of contract claim, plaintiff

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will have to prove “the existence of the contract, performance by

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the plaintiff or excuse for nonperformance, breach by the defendant
6

1

and damages.” First Commercial Mortgage Co. v. Reece, 89 Cal. App.

2

4th 731, 745 (Cal. App. 2d Dist. 2001).2

3

Plaintiff’s complaint alleges that he “entered into a written

4

and oral contract with Chase Home Finance,” but he does not allege

5

when the contract was entered into, or what were its terms.

6

Plaintiff has not produced any written contract. The following are

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the only factual allegation in the complaint that appears to be

8

related to plaintiff’s claim that defendant had a contractual

9

obligation to review plaintiff’s loan modification application:

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“Chase Home finance submitted to Plaintiff an application for loan

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modification that contemplates principal reduction. . . it must

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decide the . . . application for loan modification first [before]

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foreclosing.,” Compl. 3:14-15; plaintiff “spent substantial amount

14

of time preparing and attaching documents to the loan application

15

in

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carelessly enlarged for years the application processing and

17

reviewing,” Compl. 7:15-19; “Chase Home Finance Breached the loan

18

application contract with Plaintiff by failing to process and

19

review

20

principle reduction, and that further would place him into a

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permanent HAMP modification after the conclusion of the trial

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period,” Compl. 8:23-26.

order

to

his

ease

loan

the

application

modification

review,”

applications

and

that

“defendants

contemplates

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2

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25
26

Although defendant properly recited the elements of a breach
of contract claim, defendant erroneously recited California
pleading standards, which are of course inapplicable in federal
court. See Opp’n to Preliminary Injunction 6. Defendant is
cautioned to refrain from citing to inapplicable law in future
briefing to this court.
7

1

The

court

finds

that

an

allegation

that

defendant

gave

2

plaintiff a blank loan modification application to fill out does

3

not support plaintiff’s claim that defendant entered into a binding

4

agreement to review that application. Similarly, other than the

5

conclusory statement above, plaintiff has not allege any facts from

6

which the court can infer that he would have been placed in a

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permanent HAMP modification, making it unlikely that plaintiff will

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be able to show damages for any breach by defendant.

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10

Plaintiff

has

not

alleged

any

facts

demonstrating

the

existence of a written contract.

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Accordingly, the court finds that plaintiff is unlikely to

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succeed on his breach of contract claim. Nor has plaintiff’s

13

complaint raised a serious question on the merits.

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ii. Fraud and Deceit and/or Negligent Misrepresentation

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Plaintiff asserts that defendant falsely represented that it

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would process and review plaintiff’s loan modification application,

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that plaintiff justifiably relied on those representations, and

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that the misrepresentation resulted in escalating late fees,

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penalties, and other charges, ultimately resulting in default and

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pending foreclosure. Compl. 9-10.

21

The elements of fraud generally in California are (1) a

22

misrepresentation

(false

23

nondisclosure);

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justifiable reliance; and (e) resulting damages. Lazar v. Superior

25

Court, 12 Cal. 4th 631 (Cal. 1996). When asserting a fraud claim,

26

the Federal Rules require that plaintiff’s complaint “state with

(b)

representation,

scienter;

(c)

8

intent

concealment,
to

defraud;

or
(d)

1

particularity the circumstances constituting fraud or mistake.

2

Malice, intent, knowledge, and other conditions of a person’s mind

3

may be alleged generally.” Fed. R. Civ. P. 9(b).3 The circumstances

4

that must be pled include the “time, place, and specific content

5

of the false representations as well as the identities of the

6

parties to the misrepresentations.” Swartz v. KPMG LLP, 476 F.3d

7

756, 764 (9th Cir. 2007) (quoting Edwards v. Marin Park, Inc., 356

8

F.3d 1058, 1066 (9th Cir. 2004)). “In the context of a fraud suit

9

involving multiple defendants, a plaintiff must, at a minimum,

10

‘identif[y]

11

fraudulent scheme.’” Id. at 765 (quoting Moore v. Kayport Package

12

Express, 885 F.2d 531, 541 (9th Cir. 1989)). To state a fraud claim

13

against a corporation, plaintiff “must allege the names of the

14

persons who made the allegedly fraudulent representations, their

15

authority to speak, to whom they spoke, what they said or wrote,

16

and when it was said or written." Magdaleno v. IndyMac Bancorp,

17

Inc.,

18

2011)(applying, in federal court, the pleading requirements from

19

Lazar v. Superior Court, 12 Cal. 4th 631, 645, 49 Cal. Rptr. 2d

20

377, 909 P.2d 981 (1996)). See also, Ungerleider v. Bank of Am.

21

Corp., 2010 U.S. Dist. LEXIS 138294 (C.D. Cal. Dec. 27, 2010);

2011

the

role

U.S.

of

Dist.

[each]

LEXIS

defendant

13561

[]

(E.D.

in

the

Cal.

alleged

Jan.

28,

22
3

23
24
25
26

Federal courts adjudicating state law claims apply state
substantive law, Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938), but
federal procedural rules, Vess v. Ciba-Geigy Corp. USA, 317 F.3d
1097, 1102 (9th Cir. 2003). Here, the elements of plaintiff’s fraud
claim are defined in California law, but the applicable pleading
standard comes from Fed. R. Civ. P. 9(b). Thus, defendants’
citations to California case law regarding the heightened pleading
standard for fraud in California courts are unavailing.
9

1

Yulaeva v. Greenpoint Mortg. Funding, Inc., 2010 U.S. Dist. LEXIS

2

137988 (E.D. Cal. Dec. 20, 2010)(holding that although Lazar

3

articulates a California pleading standard, “numerous district

4

courts have followed this rule, at least insofar as to require

5

identification of a particular speaker.”).

6

Plaintiff’s complaint is devoid of the particular facts needed

7

to support a fraud claim. Plaintiff has identified the dates on

8

which defendant supplied plaintiff with an application form, but

9

has not asserted who made any representations, where they were

10

made,

11

authority to speak for Chase Home Finance. Additionally, plaintiff

12

has not pled, even generally, that the defendant acted with malice

13

or intent. Accordingly, the court finds that plaintiff’s complaint

14

does not raise a serious question on the merits and is not likely

15

to succeed.

16

iii. Negligence

17

or

whether

Plaintiff

the

asserts

person

that

making

the

defendants

representations

were

negligence

had

by

18

“colluding to lure the plaintiff into the filing of an application

19

for loan modification. . . that defendant knew or should have

20

known. . . [was] never going to be processed and reviewed, nor

21

approved for the subject modification loan.” Compl. 10.

22

Under California law, the elements of a claim for negligence

23

are “(a) a legal duty to use due care; (b) a breach of such legal

24

duty; and (c) the breach as the proximate or legal cause of the

25

resulting injury.” Ladd v. County of San Mateo, 12 Cal.4th 913,

26

917, 50 Cal.Rptr.2d 309, 911 P.2d 496 (1996) (internal citations
10

1

and quotations omitted); see also Cal Civ Code § 1714(a).

2

California courts have stated that “as a general rule, a

3

financial institution owes no duty of care to a borrower when the

4

institution's involvement in the loan transaction does not exceed

5

the scope of its conventional role as a mere lender of money.”

6

Nymark v. Heart Fed. Savings & Loan Assn., 231 Cal.App.3d 1089

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(1998). See also Wagner v. Benson, 101 Cal.App.3d 27, 35 (1980) (a

8

lender has no duty to ensure that borrower will use borrowed money

9

wisely).

10

The Nymark rule is limited in two ways. First, a lender may

11

owe to a borrower a duty of care sounding in negligence when the

12

lender's activities exceed those of a conventional lender. Nymark

13

implied that had an intent to induce plaintiff to enter into a loan

14

transaction been present, the lender may have had a duty to

15

exercise due care in preparing the appraisal. Id. at 1096-97, 283

16

Cal.Rptr. 53. See also Wagner v. Benson, 101 Cal.App.3d 27, 35, 161

17

Cal.Rptr. 516 (1980) (“Liability to a borrower for negligence

18

arises only when the lender actively participates in the financed

19

enterprise beyond the domain of the usual money lender.”).

20

Second, even when a lender's acts are confined to their

21

traditional scope, Nymark announced only a “general” rule. Rather

22

than conclude that no duty existed per se, the Nymark court

23

determined whether a duty existed on the facts of that case by

24

applying the six-factor test established by the California Supreme

25

Court in Biakanja v. Irving, 49 Cal.2d 647, 320 P.2d 16 (1958).

26

Nymark, 231 Cal.App.3d at 1098, 283 Cal.Rptr. 53; see also Glenn
11

1

K. Jackson Inc. v. Roe, 273 F.3d 1192, 1197 (9th Cir. 2001). This

2

test balances six non-exhaustive factors:

3

6

[1] the extent to which the transaction was intended to
affect the plaintiff, [2] the foreseeability of harm to him,
[3] the degree of certainty that the plaintiff suffered
injury, [4] the closeness of the connection between the
defendant's conduct and the injury suffered, [5] the moral
blame attached to the defendant's conduct, and [6] the policy
of preventing future harm.

7

Roe, 273 F.3d at 1197 (quoting Biakanja, 49 Cal.2d at 650, 320 P.2d

8

16) (modification in Roe ). Nymark held that this test determines

9

“whether

4
5

10

a

financial

institution

owes

a

duty

of

care

to

a

borrower-client,” 231 Cal.App.3d at 1098, 283 Cal.Rptr. 53.

11

Here, plaintiff has alleged that defendant “lured” plaintiff

12

into completing a loan modification application, demanded piecemeal

13

and duplicative paperwork from plaintiff, systematically ignored

14

plaintiff’s written and oral requests, and provided misleading

15

information to plaintiff. Plaintiff alleges that he was deterred

16

from seeking other remedies to address his default because of the

17

faith he put in the loan modification process based on defendant’s

18

conduct.

19

Defendant argues that the Nymark general rule disposes of the

20

matter, asserting “as lenders, defendants did not owe plaintiff a

21

duty of care.” Defendants make no argument with respect to the six-

22

factor test.

23

The court finds that most of the six factors weigh against a

24

finding of a duty of care in this case. The transaction was clearly

25

intended to affect plaintiff and defendant’s conduct, as alleged

26

in

the

complaint,

was

morally
12

blameworthy.

The

policy

for

1

preventing future harm is furthered by a finding that lenders owe

2

a duty to be forthright with homeowners seeking alternatives to

3

foreclosure. However, the degree of certainty of injury and the

4

foreseeability of the harm are tenuous in this case. There is no

5

certainty that plaintiff would qualify for a modification, or that

6

plaintiff would have succeeded in any alternative remedies had

7

defendants

8

application process, as is alleged. Similarly, there is no clear

9

connection between the harm alleged and defendant’s conduct because

10

plaintiff was in default on his loan at the time the parties

11

discussed modification.

not

lured

plaintiff

into

the

loan

modification

12

These last three factors are also instructive on whether

13

plaintiff is likely to be able to show that defendant’s conduct was

14

the proximate cause of any harm to plaintiff, and whether plaintiff

15

suffered any injury. As noted, there is no evidence that a

16

modification would have been approved, had defendants timely

17

reviewed the application. The court is also not convinced that

18

defendants

19

Plaintiff’s complaint alleges that defendants “lured” him into

20

filing the application, but he does not allege specifically that

21

defendant promised to review it or indicated any belief that he

22

would be approved. Even if defendant did have a duty of care,

23

plaintiff’s complaint does not allege sufficient facts from which

24

the court can infer that defendants breached that duty, or that

25

plaintiff suffered injury because of the breach.

26

made

any

promise

to

review

the

loan

application.

The court finds that plaintiff is unlikely to succeed on the
13

1

merits of his negligence claim.

2

iv. RESPA

3

Plaintiff alleges that defendants violated RESPA by failing

4

to provide a written response to plaintiff’s loan modification

5

applications. Plaintiff argues that, under RESPA, defendant was

6

required to process plaintiff’s loan applications within twenty

7

days of receipt. However, RESPA only requires a written response

8

to a “Qualified Written Request,” that “includes a statement of the

9

reasons for the belief of the borrower, that the account is in

10

error or provides sufficient detail to the servicer regarding other

11

information sought by the borrower.” Here, plaintiff does not

12

assert that the loan application contained such a statement.

13

The court concludes that plaintiff has not raised a serious

14

question, and is not likely to succeed on the merits of his RESPA

15

claim.

16

v. Unfair Competition Law

17

Plaintiff’s Unfair Competition Law claim arises from the same

18

conduct alleged under the other causes of action in the complaint.

19

Plaintiff asks the court to “enjoin the practice of unfairly

20

denying and failing to enter into permanent loan modification for

21

homeowner who has complied with the loan applications requirement.

22

. .”

23

As noted elsewhere, plaintiff has not alleged that he was

24

qualified to receive a permanent loan modification. He only alleges

25

that he submitted all of the documents requested during the loan

26

modification application procedure.
14

1

vi. Disability Discrimination

2

Plaintiff alleges that he is disabled and that his home is

3

specially equipped for him to carry out his daily activities.

4

Plaintiff appears to allege a cause of action under the Americans

5

with Disabilities Act and the Rehabilitation Act, but has not cited

6

any

7

accommodate his disability by refraining from foreclosing on his

8

home. Nor is the court aware of any such provision. Plaintiff has

9

also not alleged any discriminatory motive for defendant’s actions.

10

provision

of

the

act

that

would

require

defendants

to

vii. Wrongful Foreclosure

11

Plaintiff alleges that defendant had an obligation, under the

12

Home

13

plaintiff’s

14

modification for three months. Plaintiff has not alleged that he

15

would have qualified for a loan modification under HAMP. Moreover,

16

there is no private right of action under HAMP, which is part of

17

the Troubled Asset Relief Program (“TARP”). See, e.g., Wigod v.

18

Wells Fargo Bank, N.A., 2012 WL 727646 (7th Cir. 2012)(lack of

19

private right of action under HAMP does not pre-empt plaintiff’s

20

state law claims); Pantoja v. Countrywide Home Loans, Inc., 640 F.

21

Supp. 2d 1177 (N.D. Cal. 2009)(WARE)(no private right of action to

22

sue TARP recipients).

23
24

Affordable
loan

Modification
application

Program
and

(“HAMP”)

place

to

plaintiff

in

process
a

trial

Accordingly plaintiff’s claim arising under HAMP will be
dismissed.

25

B. Irreparable Harm

26

If

the

court

does

not

issue
15

a

preliminary

injunction,

1

plaintiff’s home is likely to be sold at foreclosure. The loss of

2

one’s personal residence is an irreparable harm. See, e.g. Sundance

3

Land Corp. V. Community First Federal sav. And Loan Ass’n., 840

4

F.2d 653 (9th Cir. 1988)(loss of real property, because it is

5

unique, is an irreparable injury). In this case, plaintiff has made

6

the requisite showing of risk of irreparable harm.

7

C. Balance of the Equities

8

According to the complaint, plaintiff has severe physical

9

disabilities. He has owned the property that is the subject of this

10

action for more than 20 years and has made substantial payments on

11

the loan. If the foreclosure were to occur, plaintiff would be

12

ejected from his home.

13

Chase Bank may be harmed by a delay in the foreclosure of the

14

subject property, but the court finds that the balance of equities

15

tips sharply in plaintiff’s favor.

16

D. The Public Interest

17

It is in the public interest to require lenders to comply with

18

the California and Federal statutes enacted to protect homeowners

19

from unnecessary foreclosures. The court finds, therefore, that the

20

public

21

preliminary injunction.

22

interest

may

weigh

in

favor

of

granting

plaintiff’s

IV. Conclusion

23

Because plaintiff has not raised a serious question and seems

24

unlikely to succeed the merits of his claims, the motion for a

25

preliminary injunction is DENIED.

26

////
16

1

IT IS SO ORDERED.

2

DATED:

March 16, 2012.

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