Bhinder v. Bank of America, N.A.

Filing 16

ORDER signed by Judge Garland E. Burrell, Jr on 8/2/13 ORDERING that Plaintiff's Complaint is DISMISSED. However, Plaintiff is granted fourteen (14) days from the date on which this order is filed to file an amended complaint addressing the deficiencies in the dismissed claims. Plaintiff is notified that failure to file an amended complaint within the prescribed time period could result in dismissal with prejudice under FRCP 41(b). (Mena-Sanchez, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SEWA BHINDER,

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Plaintiff,

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v.

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BANK OF AMERICA, N.A.,

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Defendant.
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2:13-cv-00216-GEB-CKD
ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS

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Defendant moves under Federal Rule of Civil Procedure (“Rule”)

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12(b)(6)

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allegations

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negligent misrepresentation, negligence, cancellation, and declaratory

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relief. (Def.’s Mot. to Dismiss (“Def.’s Mot.”), ECF No. 4.) Plaintiff

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opposes the motion.

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for

dismissal
of

of

predatory

Plaintiff’s
lending,

Complaint,

intentional

which

comprises

misrepresentation,

Decision on the motion requires determining “whether the

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complaint's

factual

allegations,

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inferences, state a plausible claim for relief.” United States ex rel.

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Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1054 (9th Cir.

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2011) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009)). “A claim

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has facial plausibility when the plaintiff pleads factual content that

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allows the court to draw the reasonable inference that the defendant is

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together

with

all

reasonable

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liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Bell

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Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). When determining a

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claim’s

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allegations in the complaint as true and construe the pleadings in the

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light most favorable to the non-moving party.”

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F.3d 1061, 1064 (9th Cir. 2011) (internal quotation marks omitted).

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However, “conclusory allegations of law and unwarranted inferences are

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insufficient to defeat a motion to dismiss.” Id. (internal quotation

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marks omitted); see also Iqbal, 556 U.S. at 678 (quoting Twombly, 550

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U.S. at 555) (“A pleading that offers ‘labels and conclusions’ or ‘a

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formulaic recitation of the elements of a cause of action will not

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do.’”).

sufficiency

under

Rule

12(b)(6),

“[w]e

accept

factual

Fayer v. Vaughn, 649

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Defendant argues that “all of Plaintiff’s causes of action are

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time-barred by the applicable limitations period because they are based

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on allegations of fraud and other impropriety that purportedly occurred

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in connection with the origination of Plaintiff’s loan on July 25,

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2008.” (Def.’s Mot. 3:8–10.) Defendant contends that “[e]ach of these

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causes of

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[Defendant]

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completion of the application materials, and negotiation of the loan

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terms,” and “[Plaintiff] closed his loan . . . on July 25, 2008.” (Id.

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4:21–23 (citing Complaint ¶¶ 3–6); id. 4:24.) Defendant argues that

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“Plaintiff filed his Complaint on October 30, 2012, well after the

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expiration of the statute[s] of limitations.” (Id. 5:3–4.)

action
acted

is based

on

improperly

Plaintiff’s central

during

the

allegation that

origination

of

the

loan,

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Plaintiff rejoins that “[t]his action is not time-barred

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because [P]laintiff properly pleaded late discovery.” (Pl.’s Opp’n to

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Def.’s Mot. (“Pl.’s Opp’n”) 10:21–22, ECF No. 8.) Plaintiff contends

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that he “pleads in paragraph 4 of the Complaint that the bank’s agent
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‘owed both parties a fiduciary duty’” such that “[Plaintiff] was not

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under

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representation.” (Id. 12:12–14, 12:16–18 (citing Hobart v. Hobart Estate

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Co., 26 Cal. 2d 412 (1945)).) Plaintiff further argues that “paragraph

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10 of the Complaint pleads that once [Plaintiff] discovered the fraud,

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he

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[Defendant] in an effort to renegotiate his loan.” (Id. 12:19–22.)

an

tried

affirmative

to

rectify

duty

this

to

wrong

investigate

by

diligently

the

trying

fiduciary’s

to

engage

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Defendant rejoins that “Plaintiff fails to set forth anything

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but conclusions that [Defendant] had an agency relationship with the

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unidentified broker.” (Def.’s Reply 4:19–20, ECF No. 11.) Defendant also

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contends that “no facts showing reasonable diligence are pled.” (Id.

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4:9.)

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“Under the delayed discovery rule, ‘the limitations clock only

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begins to run . . . when the injured party discovers or should have

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discovered the facts supporting liability.’” Royal Thrift & Loan Co. v.

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Cnty. Escrow, Inc., 123 Cal. App. 4th 24, 43 (2004) (quoting Davies v.

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Krasna, 14 Cal. 3d 502, 512–13 (1975)). “[T]o rely on the [delayed]

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discovery rule . . . , ‘[a] plaintiff whose . . . claim would be barred

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without the benefit of the . . . rule must specifically plead facts to

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show (1) the time and manner of discovery and (2) the inability to have

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made earlier discovery despite reasonable diligence.” Fox v. Ethicon

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Endo-Surgery, Inc., 35 Cal. 4th 797, 808 (2005) (quoting McKelvey v.

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Boeing N. Am., Inc., 74 Cal. App. 4th 151 (1999), superseded by statute

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on other grounds by Cal. Code Civ. P. § 340.8(c)(2) (2003)) (third

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alteration in original) (emphasis added). “[A] plaintiff must allege

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more than conclusory allegations regarding an agency relationship when

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normally, as a matter of law, a broker is the agent of the borrower not

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the lender.” Abels v. Bank of Am., N.A., No. 11-CV-208 YGR, 2012 WL
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691790, at *7 (N.D. Cal. Mar. 2, 2012) (citing Montoya v. McLeod, 176

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Cal. App. 3d 57, 64 (1985)).

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Here, Plaintiff makes the following allegations related to the

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purported fiduciary relationship and alleged delayed discovery in his

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Complaint: “[Defendant] engaged its own mortgage broker to assist

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[P]laintiff and [Defendant] toward securing a loan. Broker owed both

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parties a fiduciary duty of good faith akin to a triparte relationship

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in

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“[Defendant]’s agent instead falsified application documents, including

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[P]laintiff’s income and earning capacity, as well as the estimate of

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value of the property, all in an effort to facially pass muster toward

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securing a loan with [Defendant]. Plaintiff was unaware of and did not

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authorize this falsification . . . .” (Id. ¶ 5 (emphasis added).)

the

insurer-insured

context.”

(Compl.

¶

4

(emphasis

added).)

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Plaintiff has not “allege[d] more than conclusory allegations

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regarding an agency relationship . . . [between the] broker . . . [and]

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the lender.”

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allegations do not “specifically plead facts to show (1) the time and

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manner

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discovery despite reasonable diligence.” Fox, 35 Cal. 4th at 808.

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Therefore, Plaintiff fails to allege facts from which a reasonable

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inference can be drawn that Plaintiff’s claims are subject to the

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delayed discovery rule.

of

Abels, 2012 WL 691790, at *7. Further, Plaintiff’s

discovery

[or]

(2)

the

inability

to

have

made

earlier

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For the stated reasons, Plaintiff’s Complaint is dismissed.

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However, Plaintiff is granted fourteen (14) days from the date on which

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this

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deficiencies in the dismissed claims. Plaintiff is notified that failure

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to file an amended complaint within the prescribed time period could

order

is

filed

to

file

an

amended

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4

complaint

addressing

the

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result in dismissal with prejudice under Federal Rule of Civil Procedure

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41(b).

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Dated:

August 2, 2013

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GARLAND E. BURRELL, JR.
Senior United States District Judge

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