Beltz v Wells Fargo Home Mortgage, et al

Filing 31

AMENDED 26 ORDER signed by District Judge Troy L. Nunley on 02/09/18 ORDERING that Defendants' Motion to Dismiss Claim 5 is GRANTED with prejudice and Defendants' Motion to Dismiss Claim 6 is DENIED. (Benson, A.) Modified on 2/9/2018 (Krueger, M).

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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No. 2:15-cv-01731-TLN-CKD
JASON BELTZ AND KELLY BELTZ,
Plaintiffs,

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v.

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AMENDED ORDER GRANTING IN PART
AND DENYING IN PART DEFENDANTS’
MOTION TO DISMISS

WELLS FARGO HOME MORTGAGE;
WELLS FARGO BANK N.A. (successor
by acquisition of Wachovia N.A. and
World Savings Bank; and NBS DEFAULT
SERVICES, LLC.,
Defendants.

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This matter is before the Court pursuant to Defendants’ Wells Fargo Home Mortgage, and

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Well Fargo Bank N.A. (successor by acquisition of Wachovia N.A. and Work Savings Bank)

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(hereinafter “Wells Fargo”), and NBS Default Services, LLC’s (“NBS”) (collectively

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“Defendants”) Motion to Dismiss. (ECF No. 20.) Plaintiffs Jason and Kelly Beltz (“Plaintiffs”)

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filed an opposition. (ECF No. 22.) Defendants filed a reply. (ECF No. 23.) After carefully

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considering both parties’ briefing, the Court hereby GRANTS in part and DENIES in part

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Defendants’ Motion to Dismiss. (ECF No. 20.)

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I.

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The claims in this case arise from Defendants’ alleged conduct in connection with

FACTUAL AND PROCEDURAL BACKGROUND

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Plaintiffs’ residential mortgage loan modification applications. Plaintiffs purchased their home

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located at 6504 Upland Court, Rocklin, CA 95677 (“the Subject Property”) in 1999. (ECF No. 19

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¶ 12.) In 2006, Plaintiffs refinanced their home and continued to make mortgage payments until

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January 2013. (ECF No. 19 ¶¶ 12–15.) At the beginning of 2013, Plaintiffs stopped making

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mortgage payments due to financial troubles. (ECF No. 19 ¶ 14.) Fortunately, Plaintiffs’

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financial situation improved later that year and Plaintiffs sought a loan modification with

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Defendants. (ECF No. 19 ¶ 16.) In November 2013, Plaintiffs offered to make a lump-sum

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payment to clear up their arrearages. (ECF No. 19 ¶ 17.) However, Wells Fargo representative

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Gregory Foster told Plaintiffs they should not make that lump-sum payment because it would

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prevent Plaintiffs from receiving a HAMP loan modification with a 2% interest rate. (ECF No.

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19 ¶ 17.)

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Over the next two years, Plaintiffs repeatedly submitted paperwork for a loan modification

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to no avail. (ECF No. 19 ¶ 23.) Despite submitting several completed loan modification packets

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at Wells Fargo’s instruction, the documents were either not received or Plaintiffs were told “the

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review process need[ed] to be restarted for any number of reasons.” (ECF No. 19 ¶ 23.) One

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such time, beginning in February 2014, Wells Fargo sent Plaintiffs a loan modification package

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encouraging them to apply for mortgage assistance. (ECF No. 19 ¶ 24.) By April 2014, Plaintiffs

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had submitted a completed HAMP modification application. (ECF No. 19 ¶ 25.) On June 25,

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2014, Plaintiffs received an official denial letter for their HAMP loan modification from Wells

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Fargo. (ECF No. 19 ¶ 26.) However, Plaintiffs contend it was an erroneous denial because it

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relied on incorrect gross income figures. (ECF No. 19 ¶¶ 26–29.) Further, Wells Fargo did not

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correct its calculations of Plaintiffs’ monthly income, despite Plaintiffs informing them of the

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error. (ECF No. 19 ¶¶ 28–30.)

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Subsequently, in September 2014 Plaintiffs submitted a new loan modification

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application. (ECF No. 19 ¶ 31.) Wells Fargo claimed they never received this application. (ECF

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No. 19 ¶ 32.) Plaintiffs tried contacting Wells Fargo again in January 2015 and were told to
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submit another loan modification application. (ECF No. 19 ¶ 32.) After doing so, they received

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a letter from Wells Fargo representative Stephanie Johnson informing Plaintiffs their application

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had been received. (ECF No. 19 ¶ 36.) In May 2015, Ms. Johnson sent Plaintiffs a letter stating

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certain required documentation was missing from their loan modification application. (ECF No.

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19 ¶ 39.) Shortly thereafter, on June 5, 2015, Wells Fargo caused a Notice of Trustee’s Sale to

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be recorded and scheduled a sale of Plaintiffs’ home for July 1, 2015. (ECF No. 19 ¶ 40.)

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Throughout June 2015, Plaintiffs made multiple attempts to contact Wells Fargo’s representatives

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regarding the scheduled sale date of their home. (ECF No. 19 ¶ 41.) After finally being able to

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speak with a representative, Plaintiffs were informed that their loan modification would be

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opened and the requested sale date would be postponed. However, to effectuate this, Plaintiffs

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would need to send in some additional documents. (ECF No. 19 ¶ 43.) Plaintiffs were never

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provided with this list of documents despite repeated attempts to contact a Wells Fargo

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representative. (ECF No. 19 ¶¶ 43–46.) Without any meaningful progress in contacting Wells

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Fargo prior to the July 1 sale date, Plaintiffs filed suit in Superior Court of Placer County. (See

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ECF No. 1-1.)

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II.

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On June 23, 2015, Plaintiffs filed a Complaint in the Superior Court of Placer County

PROCEDURAL HISTORY

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against Defendants. (ECF No. 1-1.) Plaintiffs applied for, and were granted, a Temporary

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Restraining Order (“TRO”) enjoining the foreclosure of the Subject Property. (ECF No. 1-2.) On

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August 14, 2015, Defendants filed a Notice of Removal. (ECF No. 1.) On August 20, 2015,

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Defendants moved to dismiss all Plaintiffs’ claims under Federal Rule of Civil Procedure

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12(b)(6). (ECF No. 4.) In response, Plaintiffs filed a Motion for Preliminary Injunction on

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August 24, 2015, and an Opposition to the Motion to Dismiss on October 17, 2015. (ECF Nos. 5

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& 8.)

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Ruling on these motions, the Court explained that Plaintiffs had not stated a claim for

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relief for violation of Cal. Civ. Code §2923.6 because there were no allegations of material

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changes in Plaintiffs’ financial circumstances since the previous 2011 Modification Agreement.1

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Defendants have requested the Court to take Judicial Notice of three documents: a June 14, 2011 loan

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(ECF No. 18 at 16–17.) Additionally, the Court stated that Plaintiffs had not alleged a claim for

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relief for violation of Cal. Civ. Code §2923.7 because there were no allegations indicating the

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alleged violation caused actual damage. (ECF No. 18 at 20.) Accordingly, the Court denied in

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part and granted in part Defendants’ Motion to Dismiss and granted Plaintiffs’ Motion for

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Preliminary Injunction. (ECF No. 18.)

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Subsequently, on March 29, 2017, Plaintiffs filed the First Amended Complaint (“FAC”).

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(ECF No. 19.) On April 4, 2017, Defendants again filed a Motion to Dismiss pursuant to Federal

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Rule of Civil Procedure 12(b)(6). (ECF No. 20.) Plaintiff opposes this motion. (ECF No. 22.)

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III.

STANDARD OF LAW

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A motion to dismiss for failure to state a claim under Rule 12(b)(6) tests the legal

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sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Federal Rule of

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Civil Procedure 8(a) requires that a pleading contain “a short and plain statement of the claim

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showing that the pleader is entitled to relief.” See Ashcroft v. Iqbal, 556 U.S. 662, 678–79

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(2009). Under notice pleading in federal court, the complaint must “give the defendant fair notice

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of what the claim . . . is and the grounds upon which it rests.” Bell Atlantic v. Twombly, 550 U.S.

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544, 555 (2007) (internal quotations omitted). “This simplified notice pleading standard relies on

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liberal discovery rules and summary judgment motions to define disputed facts and issues and to

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dispose of unmeritorious claims.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002).

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On a motion to dismiss, the factual allegations of the complaint must be accepted as true.

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Cruz v. Beto, 405 U.S. 319, 322 (1972). A court is bound to give plaintiff the benefit of every

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reasonable inference to be drawn from the “well-pleaded” allegations of the complaint. Retail

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Clerks Int’l Ass’n v. Schermerhorn, 373 U.S. 746, 753 n.6 (1963). A plaintiff need not allege

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“‘specific facts’ beyond those necessary to state his claim and the grounds showing entitlement to

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relief.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads

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factual content that allows the court to draw the reasonable inference that the defendant is liable

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for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. 544, 556 (2007)).

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modification signed by Plaintiffs and two loan modification request denial letters sent by Defendants to Plaintiffs in
August 2015. (ECF No. 20-1 at 2.) The Court finds it unnecessary to consider these documents to determine this
motion. As a result, Defendants’ Request for Judicial Notice is DENIED. (ECF No. 20-1.)

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Nevertheless, a court “need not assume the truth of legal conclusions cast in the form of

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factual allegations.” United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir.

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1986). While Rule 8(a) does not require detailed factual allegations, “it demands more than an

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unadorned, the defendant–unlawfully–harmed–me accusation.” Iqbal, 556 U.S. at 678. A

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pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the

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elements of a cause of action.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678

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(“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements, do not suffice.”). Moreover, it is inappropriate to assume that the plaintiff “can prove

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facts that it has not alleged or that the defendants have violated the . . . laws in ways that have not

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been alleged[.]” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters,

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459 U.S. 519, 526 (1983).

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Ultimately, a court may not dismiss a complaint in which the plaintiff has alleged “enough

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facts to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 697 (quoting

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Twombly, 550 U.S. at 570). Only where a plaintiff has failed to “nudge[] [his or her] claims . . .

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across the line from conceivable to plausible[,]” is the complaint properly dismissed. Id. at 680.

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While the plausibility requirement is not akin to a probability requirement, it demands more than

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“a sheer possibility that a defendant has acted unlawfully.” Id. at 678. This plausibility inquiry is

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“a context–specific task that requires the reviewing court to draw on its judicial experience and

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common sense.” Id. at 679.

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If a complaint fails to state a plausible claim, “‘[a] district court should grant leave to

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amend even if no request to amend the pleading was made, unless it determines that the pleading

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could not possibly be cured by the allegation of other facts.’” Lopez v. Smith, 203 F.3d 1122,

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1130 (9th Cir. 2000) (en banc) (quoting Doe v. United States, 58 F.3d 484, 497 (9th Cir. 1995));

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see also Gardner v. Marino, 563 F.3d 981, 990 (9th Cir. 2009) (finding no abuse of discretion in

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denying leave to amend when amendment would be futile). Although a district court should

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freely give leave to amend when justice so requires under Rule 15(a)(2), “the court’s discretion to

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deny such leave is ‘particularly broad’ where the plaintiff has previously amended its

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complaint[.]” Ecological Rights Found. v. Pac. Gas & Elec. Co., 713 F.3d 502, 520 (9th Cir.
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2013) (quoting Miller v. Yokohama Tire Corp., 358 F.3d 616, 622 (9th Cir. 2004)).

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IV.

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Plaintiffs allege seven different causes of action. (ECF No. 19.) However, Defendants

ANALYSIS

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move to dismiss only Plaintiffs’ Fifth and Sixth Causes of Action. Under the Fifth Cause of

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Action, Plaintiffs allege that Defendants violated California Civil Code § 2923.6 (“Dual–

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Tracking”) when they caused a Notice of Trustee’s Sale to be filed while Plaintiffs had a loan

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modification application under review. (ECF No. 19 ¶ 88.) The Sixth Cause of Action alleges

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Defendants violated California Civil Code § 2923.7 because Wells Fargo failed to provide a

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Single Point of Contact. (ECF No. 19 ¶ 95.)

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A.

Violation of Civil Code §2923.6 (Claim V)

Defendants assert that § 2923.6 does not apply to Plaintiffs because they accepted and

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then defaulted on a prior loan modification. (ECF No. 20 at 4.) Further, Defendants contend that

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this prior default allowed them to move forward with foreclosure because Plaintiff had no further

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protections against “dual tracking” under § 2923.6. (ECF No. 20 at 4.)

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In response, Plaintiffs first assert, without citation, that Defendants clearly violated the

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statute because Defendants chose to perform the review. (ECF No. 22 at 4.) Next, Plaintiffs

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claim that their loan modification application included information relating to a material change

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in their financial circumstances in 2012–2013 which would prevent Defendants from engaging in

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“dual tracking.” (ECF No. 22 at 4.) Specifically, Plaintiffs allege in the FAC that they filed a

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complete loan modification agreement that “included documentation of material changes in their

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financial circumstances.” (ECF No. 19 ¶ 86.) Further, Plaintiffs explain that “[t]hese changes

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included significantly decreased income in 2012–2013 that caused Plaintiffs to fall behind on

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their payments and a subsequent improvement in Plaintiffs’ financial condition in or around late

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2013.” (ECF No. 19 ¶ 86.)

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Defendants respond by claiming that this new allegation of material change is insufficient.

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(ECF No. 20 at 5.) Specifically, Defendants assert that “[t]here is absolutely no indication in the

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FAC that there was a material change in financial circumstances documented in the February

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2015 application since the date of [Plaintiffs’] previous application in September 2014.” (ECF
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No. 20 at 5 (internal quotations omitted).)

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Under California’s Homeowner’s Bill of Rights (“HBOR”), a mortgage servicer

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mortgagee, trustee beneficiary, or authorized agent shall not record a notice of default or notice of

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sale, or conduct a trustee’s sale, while the [borrower’s] complete first lien modification

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application is pending.” Cal. Civ. Code § 2923.6(c). However, if “[t]he borrower accepts a

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written first lien modification, but defaults on, or otherwise breaches the borrower’s obligations

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under the first lien loan modification” the servicer may record a notice of default or notice of sale

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or conduct a trustee’s sale. Cal. Civ. Code § 2923.6(c)(3). Additionally, there is no obligation on

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the mortgage servicer to consider a loan modification application from a borrower who has

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already been given a fair opportunity to be evaluated for a loan modification, “unless there has

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been a material change in the borrower’s financial circumstances since the date of the borrower’s

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previous application and that change has been documented by the borrower and submitted to the

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mortgage servicer.” Gilmore v. Wells Fargo N.A., 75 F.Supp.3d 1255 (N.D. Cal. 2014) (quoting

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Cal. Civ. Code § 2923.6 (emphasis added)).

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Plaintiffs obtained a loan modification from Defendants in 2011. (ECF No. 18 at 16–18.)

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Thus, this case involves Plaintiffs’ attempts to obtain a second loan modification from 2013–

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2015. (ECF No. 19 ¶¶ 14–46.) Therefore, to properly allege that Defendants engaged in

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prohibited “dual-tracking,” Plaintiffs must allege that they provided Defendants with

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documentation of a material change in their financial circumstances between the 2015 application

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and the previous application.

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Here, Plaintiffs allege that they submitted a complete loan modification application in

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February 2015 detailing a material change in their financial circumstances in 2012–2013. (ECF

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No. 19 ¶¶ 35, 86.) However, Plaintiffs ignore the fact that they submitted a loan modification

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application in 2014, which was denied.2 (ECF No. 19 ¶ 26.) Therefore, as alleged, Plaintiffs’

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The Court recognizes Plaintiffs’ claim that this application was erroneously denied because of a
mathematical error. (ECF No. 19 ¶¶ 26–28.) However, this allegation alone does not demonstrate that Plaintiffs
were not afforded a fair opportunity for review. See e.g. Alvarez v. Nationstar Mortg. LLC, No. 15-CV-04204-BLF,
2017 WL 1153029, at *7 (N.D. Cal. Mar. 28, 2017) (explaining that a plaintiff’s application was not afforded fair
opportunity for review when he was informed the application was complete, but was later denied for an incomplete
application).

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2015 loan modification application did not contain documentation of a material change in

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Plaintiffs’ financial circumstance since the previous loan modification application in 2014.

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Withers v. J.P. Morgan Chase Bank N.A., No. C 14-0351 SBA, 2014 WL 3418367, at *4 (N.D.

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Cal. July 11, 2014) (stating that the plaintiff must allege a material change in financial

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circumstances since the date of the denial of the last loan modification application to impose the

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requirement that the servicer must review the application); see also Morton v. Wells Fargo Bank,

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N.A., No. 16-CV-05833-HRL, 2016 WL 7117041, at *3–4 (N.D. Cal. Dec. 7, 2016) (stating that

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the bank had no obligation to review the plaintiff’s loan modification application because the

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plaintiff failed to adequately allege a material change in financial circumstances since the date of

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the last application). Accordingly, Plaintiffs have failed to allege sufficient facts to demonstrate

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that Defendants were required to review Plaintiffs’ loan modification application and thus

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Defendants actions constituted “dual-tracking.”

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Federal Rule of Civil Procedure 15(a)(2) provides that “the court should freely give leave

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[to amend] when justice so requires.” A district court is “only required to grant leave to amend if

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a complaint can possibly be saved.” Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000). If

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amendment would be futile, “there [is] no need to prolong the litigation by permitting further

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amendment.” Lipton v. Pathogenesis Corp., 284 F.3d 1027, 1039 (9th Cir. 2002).

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Leave to amend Plaintiffs’ claim under § 2923.6 would be futile. Plaintiff explicitly

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alleges that the loan modification application submitted in February 2015 contained

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documentation of a material change in Plaintiffs’ financial circumstances in 2012–2013. (ECF

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No. 19 ¶ 86.) This language is a concession from Plaintiffs that the only material change

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documented in the 2015 loan modification application was the one occurring from 2012–2013.

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Accordingly, Plaintiffs cannot allege facts that the loan modification application submitted in

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2015 contained documentation of a material change in Plaintiffs’ financial circumstances since

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the previous 2014 application. See Lopez, 203 F.3d at 1122, 1129. As explained above, without

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this allegation, Plaintiffs’ claim under § 2923.6 cannot be saved.

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Therefore, the Court finds that Plaintiffs have not stated a claim for violation of § 2923.6.
Defendants’ Motion to Dismiss Plaintiffs’ Fifth Cause of Action is GRANTED with prejudice.
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B.

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Violation of Civil Code § 2923.7 (Claim VI)

Defendants assert that Plaintiffs’ claim for failure to provide a Single Point of Contact

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fails because the code section explicitly authorizes a team to serve as the Single Point of Contact.

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(ECF No. 20 at 6.) Plaintiffs counter by stating that it was not the fact that a team was assigned

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as the Single Point of Contact, but rather, the violation of § 2923.7 is rooted in the fact that this

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“team” failed to comply with the statutory obligations imposed upon them. (ECF No. 22 at 5–6.)

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Defendants respond by claiming that, even if a violation of § 2923.7 occurred, Plaintiffs have

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failed to plead facts demonstrating the violation was “material.” (ECF No. 20 at 7; ECF No. 23 at

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2.)

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Under § 2923.7, the Single Point of Contact or team assigned to represent the Single Point

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of Contact have numerous statutory obligations imposed upon them that must be complied with.

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See Hernandez v. Specialized Loan Servicing, LLC, No. CV 14-9404-GW JEMX, 2015 WL

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1401784, at *4 (C.D. Cal. Mar. 23, 2015). The obligations include: (1) communicating the

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process by which the borrower may apply for foreclosure prevention; (2) coordinating receipt of

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documents and notifying the borrower of missing documents; (3) having access to the necessary

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information to inform the borrower of the current status of the foreclosure prevention alternative;

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(4) ensuring the borrower is considered for all foreclosure prevention alternatives; and (5) having

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access to individuals with the ability to stop the foreclosure process when necessary. Cal. Civ.

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Code § 2923.7.

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Here, Plaintiffs have specifically alleged that they were told their loan modification

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application would be opened and the sale would be postponed as long as they provided

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Defendants with the necessary documents. (ECF No. 19 ¶¶ 43–44.) However, Plaintiffs were

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never informed of the specific documents that were needed because the alleged Single Point of

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Contact hung up on Plaintiffs twice. (ECF No. 19 ¶¶ 43– 44.) Further, even after attempting to

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contact their “main” point of contact Stephanie Johnson, Plaintiffs were still not provided with a

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list of the required documents to start the loan modification process and stop the foreclosure sale.

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(ECF No. 19 ¶¶ 44–46.) These are clear violations of § 2923.7, specifically, the section requiring

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the Single Point of Contact to notify the borrowers of missing documents. Cal. Civ. Code §
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2923.7(b)(2).

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Defendants’ response to this violation is that it was not “material” because there are no

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allegations that the violation caused Defendants to deny Plaintiffs’ loan modification request.

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(ECF No. 20 at 7.) This argument is unavailing. A material violation under the HBOR occurs

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when “the alleged violation affected plaintiff’s loan obligations or the modification process.”

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Shupe v. Nationstar Mortg. LLC, 231 F. Supp. 3d 597, 603 (E.D. Cal. 2017) (quoting Cornejo v.

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Ocwen Loan Servicing, LLC, 151 F. Supp. 3d 1102, 1113 (E.D. Cal. 2015)).

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Plaintiffs specifically allege that, as a result of Defendants’ violation of § 2923.7, they

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were “forced to linger in the loan modification process longer than should have been necessary

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and that [their] loan modification applications were not properly evaluated.” (ECF No. 22 at 6.)

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Additionally, Plaintiffs allege they were denied modification because of the failure to provide

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them with a list of the necessary documents. (ECF No. 22 at 6.)

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These allegations are sufficient to demonstrate that by not being provided with a list of the

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necessary documents to start the loan modification process, Plaintiffs’ loan modification process

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was affected. See Hsin-Shawn Sheng v. Select Portfolio Servicing, Inc., No. 2:15-CV-0255-JAM-

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KJN, 2015 WL 4508759, at *3 (E.D. Cal. July 24, 2015) (stating that allegations of a bank’s

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failure to provide important information and written receipt of the information was sufficient to

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allege the loan modification process had been affected). Thus, Plaintiffs have sufficiently pleaded

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facts indicating the alleged violations of § 2923.7 were material.

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The Court finds that Plaintiffs have stated a claim for violation of § 2923.7. Thus,
Defendants ’motion to dismiss Plaintiffs’ Sixth Cause of Action is DENIED.

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V.

CONCLUSION3

For the foregoing reasons, the Court hereby orders as follows:

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1. Defendants’ Motion to Dismiss Claim 5 is GRANTED with prejudice

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2. Defendants’ Motion to Dismiss Claim 6 is DENIED.

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The Court amends this order to fix an error in the conclusion. No other aspect of this order has been
changed. The parties need not submit a new Joint Status Report.

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This case is now ready for scheduling. The parties are hereby ordered to file a Joint Status Report

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within thirty (30) days of this Order.

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IT IS SO ORDERED.

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Dated: February 9, 2018

Troy L. Nunley
United States District Judge

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