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

Filing 27

MEMORANDUM and ORDER signed by Senior Judge William B. Shubb on 5/5/2022 GRANTING IN PART AND DENYING IN PART 15 Motion to Dismiss; GRANTING 20 Motion to Dismiss; and GRANTING plaintiff 20 days to file a second amended complaint, if he can do so consistent with this Order. (Coll, A) Modified on 5/6/2022 (Coll, A).

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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----oo0oo----

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JOHN CASTORINA, individually and
on behalf of all others
similarly situated,
Plaintiff,

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No. 2:21-cv-02004 WBS KJN

MEMORANDUM AND ORDER RE:
DEFENDANTS’ MOTIONS TO
DISMISS

v.
BANK OF AMERICA, N.A., and
INTEGON NATIONAL INSURANCE
COMPANY,
Defendants.

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----oo0oo---Plaintiff John Castorina (“plaintiff”) has filed this

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putative class action against Defendant Bank of America, N.A.

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(“Bank of America”) and Integon National Insurance Company

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(“Integon”) alleging various violations of federal and California

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state laws relating to defendants’ practices surrounding the

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purchasing and placing of insurance, and the conducting of

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inspections, on borrowers’ properties.

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Bank of America and Integon now move to dismiss plaintiff’s
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(Compl. (Docket No. 1).)

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complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).

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(Docket Nos. 15, 20.)

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I.

Factual and Procedural Background

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Plaintiff purchased the property at issue at 2110

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Forestlake Drive, Rancho Cordova, California 95670 (“the

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property”) in 1995.

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transactions and transfers, on or about April 25, 2003, plaintiff

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entered into a “mortgage” agreement on the property with

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Countrywide Home Loans.1

(Compl. ¶ 7, 131.)

(Id.)

After a series of

In 2008, Bank of America

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purchased the mortgage and became the mortgage lender and

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servicer.

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(Id.)
The deed of trust at issue contained a provision that

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required plaintiff to secure and pay for adequate property

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insurance that protected the property against loss due to

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hazards.

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Trust”) ¶ 4 (Docket No. 1-1).)

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allowing Bank of America to inspect and safeguard the property if

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it is “vacant or abandoned or the loan is in default.”

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133; Deed of Trust ¶ 5.)

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(Id. ¶ 132; Id., Ex. A., Deed of Trust (“Deed of
It also contained a provision

(Compl. ¶

Plaintiff alleges that in 2019 he applied for a loan

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modification and received correspondence from Bank of America

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denying his application because of its inability to confirm

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plaintiff actually owned the property. (Compl. ¶ 134.)

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responded to the denial with a copy of his deed to confirm

Plaintiff

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In their pleadings, the parties refer to the deed of
trust and promissory note collectively as the “mortgage,”
“mortgage agreement” or “agreement.” The contractual terms which
are at issue in this case are those set forth in the deed of
trust.
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ownership.

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to accept monthly payments on the loan.

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(Id.)

At that time, Bank of America began refusing
(Id.)

On or about September 1, 2019, Bank of America put

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plaintiff’s loan account into delinquency.

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Plaintiff alleges he provided the requested documentation and

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obtained assistance of counsel to prove ownership over the

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property.

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continued to refuse to accept payments or acknowledge plaintiff’s

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ownership of the property for twenty-two months.

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(Id. ¶¶ 135, 138.)

(Id. ¶ 135.)

Bank of America nevertheless

(Id. ¶¶ 136,

142.)

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Plaintiff alleges that on July 24, 2019, Bank of

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America began charging his account for property inspections.

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(Id. ¶ 137.)

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property inspections, some of which were to check if the property

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was vacant, though plaintiff alleges Bank of America knew he was

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occupying it.

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charged to plaintiff’s account on the same day, June 10, 2021,

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after plaintiff had made multiple payments to bring his account

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out of default.

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Statement (“June 10, 2021 Account Statement”) (Docket No. 1-1).)

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He alleges Bank of America conducted fifteen

(Id. ¶ 139.)

Seven of those inspections were

(Id.; Compl., Ex. C, June 10, 2021 Account

In or around November 2019, plaintiff’s voluntary

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hazard insurance policy lapsed, and Bank of America then

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purchased a hazard insurance policy through Integon, and placed

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it onto plaintiff’s property.

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insurance remains on plaintiff’s property and plaintiff has paid

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(Id. ¶ 143.)2

The lender-placed

An insurance policy that is placed on borrowers’
properties in this manner is referred to by the parties both as
“force-placed insurance” and “lender-placed insurance.” The
court will refer to it as “lender-placed insurance.”
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the amounts for the lender-placed insurance charges to Bank of

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America. (Id.)

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placed insurance made to plaintiff were higher than the cost of

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the lender-placed insurance that Bank of America paid to Integon.

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(Id. ¶ 145.)

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placed insurance is twelve times more expensive than his prior

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voluntary policy due to a “kickback scheme” between the

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defendants.

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Plaintiff alleges that charges for the lender-

Plaintiff also alleges that the cost of the lender-

(Id.)

Plaintiff alleges the “kickback scheme” between

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defendants works as follows: Integon monitors Bank of America’s

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loan portfolio, and once a lapse in insurance coverage is

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identified, a notice, purporting to come from Bank of America, is

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sent to the borrower regarding lender-placed insurance.

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114.)

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insurance, which issues from an already existing master policy

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that Bank of America has with Integon.

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America charges the borrower the full amount it initially pays

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Integon for the insurance.

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(Id. ¶

Bank of America pays Integon for the certificate for

(Id. ¶ 116.)

Bank of

(Id. ¶ 120.)

However, once coverage begins, Bank of America receives

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a set percentage back of its initial payment to Integon

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“disguised as ‘commissions,’ ‘reinsurance payments,’ or ‘expense

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reimbursements,’” which lowers the cost of coverage that Bank of

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America pays to Integon.

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pass on these “kickbacks” to borrowers.

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Integon performs the insurance monitoring services on Bank of

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America’s loans to maintain the exclusive right to place

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insurance on Bank of America’s borrowers. (Id. ¶ 122.)

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(Id. ¶ 117.)

Bank of America does not
Plaintiff alleges that

On October 21, 2021, plaintiff initiated this action by
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filing a proposed class action complaint alleging nine claims:

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(1) breach of contract; (2) breach of the implied covenant of

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good faith and fair dealing; (3) violations of the Fair Debt

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Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692; (4)

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violations of the Truth in Lending Act (“TILA”), 15 U.S.C. §

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1601; (5) violations of the Racketeer Influenced and Corrupt

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Organizations Act (“RICO”), 18 U.S.C. § 1962(c); (6) conspiracy

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under RICO, 18 U.S.C. § 1962(d); (7) violations of the Rosenthal

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Fair Debt Collection Practices Act (“Rosenthal Act”), Cal. Civ.

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Code § 1788; (8) unjust enrichment; and (9) violations of

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California Unfair Competition Law, Cal. Bus. & Pro. Code § 17200.

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Plaintiff alleges all nine claims against Bank of America, and

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only the two RICO claims against Integon.

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II.

Discussion

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Federal Rule 12(b)(6) allows for dismissal when the

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plaintiff’s complaint fails “to state a claim upon which relief

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can be granted.”

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the court is whether, accepting the allegations in the complaint

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as true and drawing all reasonable inferences in the plaintiff’s

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favor, the plaintiff has stated a claim to relief that is

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plausible on its face.

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(2009).

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requirement,’ but it asks for more than a sheer possibility that

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a defendant has acted unlawfully.”

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the elements of a cause of action, supported by mere conclusory

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statements, do not suffice.”

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A.

Fed. R. Civ. Pro. 12(b)(6).

The inquiry before

See Ashcroft v. Iqbal, 556 U.S. 662, 678

“The plausibility standard is not akin to a ‘probability

Id.

“Threadbare recitals of

Id.

Breach of Contract
To state a breach of contract claim under California
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law, plaintiffs must allege (1) the existence of a contract; (2)

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plaintiff’s performance or excuse for nonperformance of the

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contract; (3) defendant’s breach of the contract; and (4)

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resulting damages.

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

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breached the terms of the deed of trust by charging plaintiff for

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“excessive and unfair property inspections,” charging plaintiff

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for lender-placed insurance that was “unnecessary and excessive,”

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and not passing on the kickbacks on the cost of coverage.

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First Com. Mortg. Co. v. Reece, 89 Cal. App.
Plaintiff alleges Bank of America

(Compl. ¶¶ 175-79.)
Bank of America argues that plaintiff has failed to

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allege a breach because the deed of trust allows it to conduct

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property inspections and charge plaintiff related fees.

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America’s Mot. (“BOA Mot.”) at 5.)

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Bank of America “may do and pay whatever is necessary to protect

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the value of the [p]roperty and [its] rights in the [p]roperty”

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if plaintiff fails to perform under the agreement or there is a

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legal proceeding.

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America may inspect the property if it is “vacant or abandoned or

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the loan is in default.”

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(Bank of

The deed of trust states that

(Deed of Trust ¶ 7.)

Specifically, Bank of

(Id. ¶ 5.)

Plaintiff does not dispute that these provisions are in

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the deed of trust.

However, plaintiff alleges that he was

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charged for inspections that were “drive-by or fabricated.”

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(Compl. ¶ 174.)

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to charge for inspections that never actually happened.

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Plaintiff also alleges that the inspections occurred when

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plaintiff was occupying the property and that Bank of America

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knew he was occupying it.

The deed of trust does not allow Bank of America

(Id. ¶ 175.)
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The parties also

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disagree on whether plaintiff was in default when the inspections

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began.

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plaintiff actually was in default in order to determine if his

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claim may proceed.

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allegations, plaintiff states a breach of contract claim that is

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“plausible on its face” as Bank of America was allegedly

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conducting property inspections even when the property was not

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“vacant or abandoned or the loan [was not] in default.”

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Ashcroft, 556 U.S. at 678; (Deed of Trust ¶ 5.)

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At the pleading stage, the court cannot decide whether

Therefore, based on these factual

See

Plaintiff’s allegations regarding the frequency of the

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property inspections also sufficiently state a claim for breach

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of contract.

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excess of once every 30 days.”

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contends that fifteen property inspections in a 22-month period

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is not excessive given that courts analyzing similar claims have

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held inspections once a month were allowed.

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(citing Walker v. Countrywide Home Loans, Inc., 98 Cal. App. 4th

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1158 (2d Dist. 2002) (holding that charging the borrower for 12

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inspections that happened approximately every 30 days was not in

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violation of the California Unfair Competition Law).)

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plaintiff was charged for seven inspections on a single day,

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which raises an inference that the inspections were excessive or

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fabricated, and not done per the contract as “is necessary to

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protect the value of the property” or Bank of America’s rights in

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it.

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Plaintiff pleads inspections were occurring “in
(Compl. ¶ 174.)

Bank of America

(BOA Mot. at 5-6

However,

(June 10, 2021 Account Statement; Deed of Trust ¶ 7.)
In regard to the lender-placed insurance, the agreement

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states that any amounts “disbursed by” Bank of America for the

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lender-placed insurance will “become an additional debt of the
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borrower.”

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Bank of America did not actually pay the amount it charged

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plaintiff for lender-placed insurance, and therefore, the amount

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“disbursed by” Bank of America is less than what “becomes an

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additional debt” for plaintiff.

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sufficiently alleges that he was charged beyond what the deed of

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trust permits.

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(Deed of Trust ¶ 7.)

Here, plaintiff alleges that

(See id.)

Therefore, plaintiff

Bank of America notes that it disclosed to plaintiff
that lender-placed insurance “may be significantly more expensive

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than insurance [plaintiff] can buy [himself].” (BOA Mot. at 8;

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Compl., Ex. B, Lender-Placed Insurance Notice (“Insurance

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Notice”) (Docket No. 1-1).)

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interpreted as restricting Bank of America’s discretion because

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it states that Bank of America may pay whatever is “necessary.”

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(Deed of Trust ¶ 7.)

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However, the deed of trust could be

“[W]here the language [of a contract] is ambiguous,

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such that it is capable of two or more reasonable interpretations

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and therefore leaves doubt as to the parties’ intent, a motion to

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dismiss must be denied.”

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CV-13-04781 DDP, 2014 WL 6453777, at *6 (C.D. Cal. Nov. 17,

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2014); see Consul Ltd. V. Solide Enters., 802 F.2d 1143, 1149

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(9th Cir. 1986) (holding that the district court erred in

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dismissing for failure to state a claim where the conflict in

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language of an agreement “leaves doubt as to the parties’

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intent”).

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institute lender-placed insurance, whether the amount it paid was

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“necessary” creates ambiguities regarding the authorized level of

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insurance.

Maloney v. Indymac Mortg. Servs., No.

Though the deed of trust allows Bank of America to

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The conduct alleged in this case, including the

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language in the deed of trust itself, is strikingly similar to

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that in McNeary-Calloway v. JP Morgan Chase Bank, N.A., 863 F.

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Supp. 2d 928 (N.D. Cal. Mar. 26, 2012).

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plaintiffs’ agreements included the same language about the

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lender’s right to “do and pay whatever is necessary to protect

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the value of the property and Lender’s rights in the property,

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including payment of . . . hazard insurance.”

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Supp. 2d at 956.

In McNeary, the

McNeary, 863 F.

The court in McNeary, determined that the

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defendants could only place insurance “to the extent such

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insurance ‘is necessary,’” which did not give defendants

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“unlimited discretion,” and therefore the court denied

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defendants’ motion to dismiss the breach of contract claim.

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see also Longest v. Green Tree Servicing LLC, 74 F. Supp. 3d

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1289, 1298 (C.D. Cal. Feb. 9, 2015) (finding there to be

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ambiguity in the mortgage agreement due to the tension between

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the allowance of lender-placed insurance but the discretionary

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function of the lender being able to do “whatever is reasonable

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and appropriate”).

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Id.;

Plaintiff has sufficiently alleged a breach of contract

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claim against Bank of America based on the property inspections

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and lender-placed insurance.

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motion to dismiss plaintiff’s breach of contract claim will be

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denied.

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B.

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Accordingly, Bank of America’s

Implied Covenant of Good Faith and Fair Dealing
Under California law, all contracts contain an implied

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covenant of good faith and fair dealing.

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Credit Ass’n v. Old Republic Life Ins. Co., 723 F.2d 700, 703
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See San Jose Prod.

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(9th Cir. 1984).

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to refrain from doing anything to injure the right of the other

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to receive the benefits of the agreement.”

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citation omitted).

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The covenant “requires each contracting party

Id. (quotations and

Bank of America argues that plaintiff’s implied

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covenant of good faith and fair dealing claim avers only a

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contractual violation and is therefore duplicative of plaintiff’s

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claim for breach of the deed of trust.

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“[W]here breach of an actual term is alleged, a separate implied

(BOA Mot. at 9.)

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covenant claim, based on the same breach, is superfluous.”

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v. Bechtel Nat. Inc, 24 Cal. 4th 317, 327 (2000); see also Env’t

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Furniture, Inc. v. Bina, No. CV 09-7978 PSG, 2010 WL 5060381, *3

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(C.D. Cal. Dec. 6, 2010) (quotations omitted) (“California law

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requires that a claim for breach of the implied covenant of good

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faith and fair dealing go beyond the statement of a mere contract

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breach and not rely on the same alleged acts or simply seek the

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same damages” as the breach of contract claim).

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Guz

Plaintiff’s implied covenant of good faith and fair

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dealing claim alleges the same conduct alleged in his breach of

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contract claim.

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Notably, plaintiff alleges that Bank of America breached its duty

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of good faith and fair dealing “in violation of the applicable

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[deed of trust] provisions.”

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plaintiff’s implied covenant of good faith and fair dealing claim

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is superfluous.

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C.

(Compare compl. ¶¶ 174-79, with id. ¶¶ 188a-h.)

(Id. ¶¶ 188c, 188f.)

As alleged,

Therefore, that claim will be dismissed.

Fair Debt Collection Practices Act and Rosenthal Act
The FDCPA and the Rosenthal Act prohibit false,

deceptive, or misleading representations or means in connection
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with the collection of any debt, and using unfair and

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unconscionable means to collect or attempt to collect any debt.

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15 U.S.C. § 1692e-f; Cal. Civ. Code § 1788.1(b).

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1.

“Debt Collector” Requirement for FDCPA

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In order to be liable under both the FDCPA and the

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Rosenthal Act, Bank of America must qualify as a “debt

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collector.”

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the Rosenthal Act than it is under the FDCPA, as the latter

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excludes creditors collecting on their own debts or a debt that

The definition of “debt collector” is broader under

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was not in default when it was obtained by a creditor.

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U.S.C. § 1692a(6)(F); Herrera v. LCS Fin. Servs. Corp., No. C09-

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02843 TEH, 2009 WL 5062192, at *2 n.1 (N.D. Cal. Dec. 22,

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2009) (“[t]he federal definition [of debt collectors] excludes

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creditors collecting on their own debts, 15 U.S.C. § 1692a(6), an

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exclusion that does not appear in the state statute, Cal. Civ.

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Code § 1788.2(c)”).

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See 15

Plaintiff stipulated at oral argument to dropping his

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FDCPA claim as the parties agree that Bank of America is not a

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“debt collector” under the FDCPA.

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on the loan, and therefore, is “collecting on its own debt” and

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the loan was not in default when Bank of America obtained it.

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Accordingly, plaintiff’s FDCPA claim will be dismissed.

Bank of America is the lender

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2.

Rosenthal Act Claim

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Plaintiff alleges that Bank of America violated the

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Rosenthal Act by representing to him that he “must make payments

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for Escrow Account Advances (which contained illegal fees for

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excessive and improper [lender-placed insurance]), and the fees

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for property inspections that were not conducted, excessive, and
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not permitted, when . . . [Bank of America] knew that the fees .

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. . were not legitimate debts.”

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(See compl. ¶¶ 253-55.)

The heightened pleading standard of Federal Rule of

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Civil Procedure 9(b) applies to claims under the Rosenthal Act

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when premised on allegations of fraud, and here plaintiff’s

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Rosenthal Act claim is premised on Bank of America allegedly

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making false, deceptive, and misleading statements.

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CitiMortgage, Inc., SACV 16-00048-CJC, 2016 WL 7507762, at *4

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(C.D. Cal. Feb. 17, 2016) (applying heightened Rule 9(b) pleading

See Brown v.

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standard for Rosenthal Act claim); Day v. Am. Home Mortg.

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Servicing, Inc., No. 2:09-CV-02676-GEB-KJM, 2010 WL 2231988, at

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*2 (E.D. Cal. June 2, 2010) (same).

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The Ninth Circuit has held that “to avoid dismissal for

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inadequacy under Rule 9(b), [the] complaint would need to ‘state

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the time, place, and specific content of the false

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representations as well as the identities of the parties to the

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misrepresentation.’”

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1066 (9th Cir. 2004) (quoting Alan Neuman Prods., Inc. v.

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Albright, 862 F.2d 1388, 1393 (9th Cir. 1988)).

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9(b) requires that a plaintiff “must set forth what is false or

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

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Capitol Bancorp Ltd., 551 F.3d 1156, 1161 (9th Cir. 2009)

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(quotations omitted).

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Edwards v. Marin Park, Inc., 356 F.3d 1058,

Further, Rule

Rubke v.

Here, the complaint states that Bank of America “made

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demands for payments after delinquency and/or default by sending

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letters, making telephone calls, and other attempts to collect

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mortgage payments.”

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does not include any other factual allegations about the “time,

(Compl. ¶ 250.)

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Beyond this, the complaint

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place, and specific content” of the “letters, telephone calls, or

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other attempts.”

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plaintiff’s Rosenthal Act claim will be dismissed.

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D.

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Edwards, 356 F.3d at 1066; (Id.)

Accordingly,

Truth in Lending Act
TILA is a consumer protection statute that aims to

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“avoid the uninformed use of credit.”

15 U.S.C. § 1601(a).

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statute “requires creditors to provide borrowers with clear and

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accurate disclosures of terms dealing with things like finance

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charges, annual percentage rates of interest, and the borrower’s

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rights.”

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The

Beach v. Ocwen Fed. Bank, 523 U.S. 410, 412 (1998)

(citing 15 U.S.C. §§ 1631, 1632, 1635 & 1638).

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1.

TILA Claim for Lender-Placed Insurance

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Under TILA, 12 C.F.R. § 226.18(d), a creditor must

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disclose a “finance charge” which includes a premium for

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insurance.

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proceed in which the original mortgage agreement did not

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contemplate that the borrower was required to have hazard

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insurance or that Bank of America was authorized to purchase it

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if the borrower’s policy lapsed.

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Mot. at 15 (citing Hofstetter v. Chase Home Fin., LLC, 751 F.

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Supp. 2d 1116, 1125-28 (N.D. Cal. Oct. 29, 2010) (granting leave

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to amend to add a TILA claim where mandatory flood insurance was

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not required “at the loan’s consummation and insufficient initial

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disclosures were made to the borrower that such insurance would

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have to be purchased in the future”); Travis v. Boulevard Bank

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N.A., 880 F. Supp. 1226, 1229 (N.D. Ill. Mar. 31, 1995) (emphasis

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added) (“Defendant’s purchase of the allegedly unauthorized

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insurance and the subsequent addition of the resulting premiums

Plaintiff cites to cases allowing TILA claims to

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(Pl.’s Opp’n to Bank of America

1

to plaintiff’s existing indebtedness constituted a new credit

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transaction” requiring new disclosures under TILA). Here, the

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deed of trust differs from plaintiff’s cited cases because it

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required plaintiff to have hazard insurance and authorized Bank

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of America to institute lender-placed insurance if plaintiff’s

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policy lapsed.

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However, the agreement did not authorize Bank of

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America to receive kickbacks from the lender-placed insurance or

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charge for inspections that were drive-by or fabricated.

See

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Cannon v. Wells Fargo Bank, N.A., 917 F. Supp. 2d 1025, 1044-46

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(N.D. Cal. Jan. 9, 2013) (denying motion to dismiss TILA claim

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where lender-placed insurance was authorized by the mortgage

13

agreement, but the kickbacks were not).

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alleges that Bank of America violated TILA, 12 C.F.R. § 226.17,

15

by failing to disclose the amount and nature of the kickback

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scheme.

Plaintiff sufficiently

(Compl. ¶ 211.)

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2.

TILA Claim for Property-Inspection Fees

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Plaintiff’s TILA claim also alleges in conclusory terms

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that Bank of America violated TILA “through the imposition of

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unauthorized or inflated” property inspections.

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Beyond this conclusory allegation, the complaint contains no

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other factual allegations pertaining to property inspections in

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accordance with the TILA claim.

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(“Threadbare recitals of the elements of a cause of action,

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supported by mere conclusory statements, do not suffice.”)

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Further, plaintiff provides no argument in opposition about the

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TILA claim to the extent it is based on property-inspection fees.

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(See Pl.’s Opp’n to Bank of America at 14-16.)

(Id. ¶ 215.)

See Ashcroft, 556 U.S. at 678

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Accordingly, the

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court will grant Bank of America’s motion to dismiss plaintiff’s

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TILA claim to the extent it is based on property-inspection fees.

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3.

TILA Statute of Limitations

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Bank of America argues plaintiff’s TILA claim is time-

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barred to the extent it is premised on conduct before October 29,

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2020, as TILA has a one-year statute of limitations.

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U.S.C. 1640(e).

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equitable tolling is appropriate, though he attempted to plead as

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such in the complaint.

See 15

In his opposition, plaintiff does not argue that

(See Pl.’s Opp’n to Bank of America at

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16-17; Compl. ¶¶ 149-154.)

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also alleged conduct that occurred within the statute of

12

limitations, because the lender-placed insurance was renewed on

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April 19, 2021.

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Plaintiff provides no explanation of how a claim based on conduct

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occurring prior to October 29, 2020 would be subject to equitable

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tolling.

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information upon which he bases his claims was not available to

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him earlier, since he had been getting charged for the lender-

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placed insurance as early as 2019.

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made aware of these charges as part of his monthly statements,

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and if he was not, he fails to allege facts to support that

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inference.

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Plaintiff merely argues that he has

(Pl.’s Opp’n to Bank of America at 16-17.)

Plaintiff also insufficiently alleges how the

Presumably, plaintiff was

Therefore, to the extent plaintiff’s TILA claim is

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based on alleged violations from prior to October 29, 2020, it is

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time-barred and will be dismissed.

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2020, plaintiff’s TILA claim based on lender-placed insurance is

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sufficiently alleged and Bank of America’s motion will be denied.

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E.

RICO Claims
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For conduct after October 29,

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Both defendants move to dismiss plaintiff’s RICO claim

2

which is based on the alleged “kickback scheme” for lender-placed

3

insurance between defendants.

4

plaintiff must allege the existence of a RICO enterprise, the

5

existence of a pattern of racketeering activity, a nexus between

6

the defendant and either the pattern of racketeering activity or

7

the RICO enterprise, and a resulting injury to the plaintiff.

8

Occupational–Urgent Care Health Sys., Inc. v. Sutro & Co.,

9

Inc., 711 F. Supp. 1016, 1021 (E.D. Cal. 1989).

10

To state a claim under RICO, a

When the alleged racketeering activity sounds in fraud

11

-- and here plaintiff bases his RICO claim upon mail and wire

12

fraud -- the complaint must “state with particularity the

13

circumstances constituting fraud or mistake” to meet the standard

14

under Federal Rule of Civil Procedure 9(b).

15

Fin. Corp. Mortg. Mktg. & Sales Prac. Lit., 601 F. Supp. 2d 1201,

16

1215 (S.D. Cal. 2009) (quoting Fed. R. Civ. P. 9(b)).

17

a pattern of racketeering activity, a plaintiff must allege two

18

or more predicate acts.

19

F.2d 187, 193 (9th Cir. 1987).

20

In re Countrywide

To allege

Sun Sav. & Loan Ass’n v. Dierdorff, 825

Here, the complaint alleges only one predicate act of

21

mail and wire fraud.

Plaintiff alleges that he received a

22

lender-placed insurance notice on April 19, 2021 from Bank of

23

America, which he alleges was actually from Integon.

24

144.)

25

sufficiently alleged predicate act, plaintiff’s RICO claim fails

26

because he has not alleged a second predicate act.

27

one letter, plaintiff does not identify any other predicate acts

28

with the required particularity under Rule 9(b).

(Compl. ¶

Even assuming that the April 19, 2021 letter is a

16

Beyond the

Merely stating

1

that Integon sent letters with approval from Bank of America,

2

without identifying the time, place or specific content of false

3

representations of more than one letter, is insufficient to

4

survive a motion to dismiss under the heightened pleading

5

standard of Rule 9(b).

6

(Id. ¶ 232.)

Furthermore, plaintiff’s RICO claim must be dismissed

7

for the independent reason that it is nothing more than a

8

dressed-up attempt to assert a breach of contract claim, which

9

plaintiff already alleges.

“A plaintiff cannot state a claim

10

under the Civil RICO statute by simply artfully pleading what is

11

essentially a breach of contract claim.”

12

Inc., No. SACV 16-01142-CJC, 2018 WL 6220051, *7 (C.D. Cal. Apr.

13

2, 2018) (quotations omitted); Vega v. Ocwen Fin. Corp., No 2:14-

14

cv-04408-ODW, 2015 WL 1383241, *12 (C.D. Cal. Mar. 24, 2015)

15

(dismissing RICO claim which alleged that the defendant assessed

16

fees in violation of the borrowers’ mortgage agreement because

17

the claim was premised on a breach of contract). The alleged

18

conduct under plaintiff’s RICO claim, of improperly charging

19

borrowers for lender-placed insurance, is also the alleged

20

conduct upon which plaintiff’s breach of contract claim is

21

premised.

22

Manos v. MTC Fin.,

(Compare compl. ¶ 243, with id. ¶ 179.)
Plaintiff’s opposition to defendants’ motion on this

23

issue only argues that his RICO claim is different than his

24

breach of contract claim for the property-inspection fees.

25

(Pl.’s Opp’n to Bank of America at 9.)

26

plaintiff, his RICO claim is only based on lender-placed

27

insurance.

28

distinguish his breach of contract claim for lender-placed

(See compl. ¶ 240-47.)

17

However, as pled by

Plaintiff makes no effort to

1

insurance and his RICO claim for lender-placed insurance.

2
3

Accordingly, defendants’ motions to dismiss plaintiff’s
RICO claim will be granted.

4

Because the complaint fails to sufficiently allege a

5

RICO claim under 18 U.S.C. § 1962(c), plaintiff’s claim under §

6

1962(d) for conspiracy to commit a RICO violation also fails.

7

See Turner v. Cook, 362 F.3d 1219, 1231 n. 17 (9th Cir. 2004)

8

(dismissing conspiracy to commit RICO claim because plaintiffs

9

failed to sufficiently allege RICO claim).

10

F.

11

Unjust Enrichment
In the alternative to his claims for breach of contract

12

and implied covenant of good faith and fair dealing, plaintiff

13

brings a separate claim for unjust enrichment against Bank of

14

America. “There is not a standalone cause of action for ‘unjust

15

enrichment’ which is synonymous with restitution.”

16

Hain Celestial Grp., Inc., 783 F.3d 753, 762 (9th Cir. 2015).

17

Rather, it “describe[s] the theory underlying a claim that a

18

defendant has been unjustly conferred a benefit through mistake,

19

coercion, or request” and the “return of that benefit is

20

typically sought in a quasi-contract cause of action.”

21

Here, both parties agree that there is an existing contract which

22

is at issue, the deed of trust, so there is no claim to be made

23

in quasi-contract.

24

America’s motion to dismiss plaintiff’s unjust enrichment

25

“claim.”

26
27
28

G.

Astiana v.

Id.

Accordingly, the court will grant Bank of

California Unfair Competition Law
California’s Unfair Competition Law (“UCL”) “prohibits

any unfair competition, which means ‘any unlawful, unfair or
18

1

fraudulent business act or practice.’” In re Pomona Valley Med.

2

Grp., Inc., 476 F.3d 665, 674 (9th Cir. 2007) (quoting Cal. Bus.

3

& Prof. Code § 17200, et seq.).

4

of America was receiving kickbacks for placing insurance on

5

borrowers’ property, without disclosing any such kickbacks to

6

borrowers, and Bank of America was falsifying property

7

inspections and still charging borrowers for them.

8

pleading stage, plaintiff sufficiently alleges the UCL claim

9

given plaintiff’s remaining claims in this action and the conduct

10

Plaintiff has alleged that Bank

At the

by Bank of America described within the complaint.

11

IT IS THEREFORE ORDERED that:

12

(1) Bank of America’s motion to dismiss plaintiff’s

13
14

breach of contract claim be, and the same hereby is, DENIED;
(2) Bank of America’s motion to dismiss plaintiff’s

15

claim for breach of the implied covenant of good faith and fair

16

dealing be, and the same hereby is, GRANTED;

17

(3) Bank of America’s motion to dismiss plaintiff’s

18

claim under the Fair Debt Collection Practices Act be, and the

19

same hereby is, GRANTED;

20

(4) Bank of America’s motion to dismiss plaintiff’s

21

claim under the Truth in Lending Act be, and the same hereby is,

22

GRANTED in part with respect to the imposition of property-

23

inspection fees and all alleged violations occurring before

24

October 29, 2020, and DENIED in all other respects;

25

(5) Bank of America’s motion to dismiss and Integon’s

26

motion to dismiss plaintiff’s claim under the Racketeer

27

Influenced and Corrupt Organizations Act, 15 U.S.C. § 1962(c) be,

28

and the same hereby are, GRANTED;
19

1

(6)

Bank of America’s motion to dismiss and Integon’s

2

motion to dismiss plaintiff’s conspiracy claim under the

3

Racketeer Influenced and Corrupt Organizations Act, 15 U.S.C. §

4

1962(d) be, and the same hereby are, GRANTED;

5

(7) Bank of America’s motion to dismiss plaintiff’s

6

claim under the Rosenthal Fair Debt Collection Practices Act be,

7

and the same hereby is, GRANTED;

8
9

(8) Bank of America’s motion to dismiss plaintiff’s
unjust enrichment claim be, and the same hereby, is GRANTED; and

10

(9) Bank of America’s motion to dismiss plaintiff’s

11

claim for violations of the California Unfair Competition Law, be

12

and the same hereby, is DENIED.

13

Plaintiff has twenty days from the date of this Order

14

to file a second amended complaint, if he can do so consistent

15

with this Order.

16

complaint, counsel is reminded that the purpose of a complaint is

17

not to see how many claims can be constructed out of a single set

18

of facts, but to plead only such claims as may improve

19

plaintiff’s prospects of prevailing at trial.

20

Dated:

In deciding whether to file a second amended

May 5, 2022

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