Guldbeck et al v. BNC Mortgage, Inc. et al

Filing 27

ORDER by Chief Judge Vaughn R. Walker granting 5 Motion to Dismiss; granting 10 Motion to Dismiss; granting 12 Motion to Dismiss with leave to file amended complaint by March 22, 2010. (hlk, COURT STAFF) (Filed on 3/1/2010)

1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs Alex Guldbeck and Kimberly A Anderson filed this action on September 28, 2009 in San Mateo County superior court. Doc #1. Defendant Voorhees Ventures Inc ("Voorhees") Id. ALEX GULDBECK and KIMBERLY A ANDERSON, Plaintiffs, v BNC MORTGAGE INC, CHASE HOME FINANCE LLC, FIRST AMERICAN LOANSTAR TRUSTEE SERVICES, MORTGAGE ELECTRONIC REGISTRATIONS SYSTEMS INC, VOORHEES VENTURES INC, and DOES 1-100, Defendants. No C 09-cv-05733 VRW ORDER IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

removed the action on December 7, 2009.

The complaint alleges twenty-four causes of action associated with the 2006 mortgage loan and the 2009 non-judicial foreclosure of plaintiffs' home at 1096 Barcelona Drive, Pacifica,

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CA 94044, Doc #1-1 Exh A at 7 (Compl), and names five defendants: Voorhees, Chase Home Finance LLC ("Chase"), First American Loanstar Trustee Services ("Loanstar"), Mortgage Electronic Registrations Systems Inc ("MERS") and BNC Mortgage Inc. Id. Plaintiffs

dismissed BNC Mortgage as a defendant pursuant to FRCP 41(a)(2). Doc #17. Each remaining defendant moves to dismiss pursuant to Doc ##5, 10, 12.

FRCP 12(b)(6).

I On a FRCP 12(b) motion to dismiss, all well-pleaded allegations of material fact are taken as true and construed in a light most favorable to the non-moving party. General Conference

Corp of Seventh-Day Adventists v Seventh-Day Adventist Congregational Church, 887 F2d 228, 230 (9th Cir 1989). Accordingly, what follows is drawn from plaintiffs' complaint taking their allegations as true.

A On November 21, 2006 plaintiffs executed and delivered to BNC Mortgage a promissory note in the amount of $736,250 with a monthly payment amount of $5,075.22 for a fully amortizing 30 year term at a 6.725 percent rate. Compl ¶16. As part of the same

transaction, plaintiffs executed and delivered to MERS, as beneficiary, a Deed of Trust, by the terms of which the plaintiffs conveyed to T D Service Company, as trustee, the real property at issue. Id ¶14. On March 27, 2009 Loanstar caused to be recorded a

Notice of Default and Election to Sell Under Deed of Trust Notice to plaintiffs, alleging that plaintiffs were in default by an 2

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amount of $18,834.86 as of March 27, 2009.

Id ¶21, p77.

Loanstar

further informed plaintiffs that it, as beneficiary, would sell or cause to be sold plaintiffs' property to satisfy that obligation. Id at 77. The March 27, 2009 actions constituted a non-judicial On May 4, 2009 a Substitution of Trustee was

foreclosure.

recorded, whereby the original trustee, T D Service, substituted Loanstar as the new trustee of the 1096 Barcelona Drive property. Doc #11 at 30. On May 13, 2009 an Assignment of Deed of Trust was

recorded, whereby MERS assigned all beneficial interest under the deed to Wells Fargo Bank. Id at 33. On July 1, 2009 Loanstar

recorded a Notice of Trustee Sale, whereby the plaintiffs were informed that the 1096 Barcelona Drive property would be sold at public auction to the highest bidder. Id at 35. On August 17,

2009 plaintiffs mailed a rescission letter pursuant to the Truth and Lending Act to Loanstar. Compl ¶18. To date, the defendants

have not removed the recorded Notice of Default under the Note. Id ¶22.

B A motion to dismiss under FRCP 12(b)(6) for failure to state a claim upon which relief can be granted "tests the legal sufficiency of a claim." (9th Cir 2001). Navarro v Block, 250 F3d 729, 732

Because FRCP 12(b)(6) focuses on the sufficiency

of a claim ---- and not the claim's substantive merits ---- "[o]rdinarily[] a court may look only at the face of the complaint to decide a motion to dismiss." Van Buskirk v Cable News Network,

Inc, 284 F3d 977, 980 (9th Cir 2002). // 3

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Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v Pacifica Police Dep't, 901 Allegations of material fact are

F2d 696, 699 (9th Cir 1990).

taken as true and construed in the light most favorable to the nonmoving party. Cahill v Liberty Mutual Ins Co, 80 F3d 336, The court need not, however, accept as true

337­38 (9th Cir 1996).

allegations that are conclusory, legal conclusions, unwarranted deductions of fact or unreasonable inferences. See Sprewell v "In sum,

Golden State Warriors, 266 F3d 979, 988 (9th Cir 2001).

for a complaint to survive a motion to dismiss, the non-conclusory factual content, and reasonable inferences from that content must be plausibly suggestive of a claim entitling the pleader to relief." Moss v US Secret Service, 572 F3d 962, 969

(9th Cir 2009).

II Collectively, defendants argue that claims seven, eleven, fourteen, eighteen, nineteen, twenty-two and twenty-three are all time-barred. The court rules that the applicable statutes of

limitations are not equitably tolled; claims seven, eleven, and twenty-two are time-barred; claims eighteen and nineteen are partially time-barred; and claims fourteen and twenty-three are not time-barred.

A Claim seven alleges three separate violations of the Real Estate Settlement Procedures Act ("RESPA"). 4 Plaintiffs allege that

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(1) they tendered the full amount under the note (2) Loanstar failed to comply with RESPA by not responding to plaintiffs' Notice of Dispute and Request for Accounting notices (3) defendants are not entitled to continue with said foreclosure because of an improper statutory execution of the Deed of Trust. Compl ¶¶40-42.

Claim eleven alleges that defendants violated the Truth in Lending Act ("TILA") by using the word "fixed rate" for an adjustable rate mortgage, thereby violating TILA disclosure requirements of material loan terms. Id ¶¶180-182. Plaintiffs

further allege that defendants' disclosure violations "were apparent on the face of the Note, HUD-1 Disclosure Statement, Truth in Lending Disclosure Statement, Notice of Right to Cancel, and other loan documentation." Id ¶183.

Plaintiffs bring three separate tort claims, including claim eighteen for intentional infliction of emotional distress, claim nineteen for negligent infliction of emotional distress and claim twenty-two for negligence per se. Both claims for emotional

distress draw on facts associated with defendants' conduct during "the negotiations and execution of the subject Note, and the recordation of the Notice of Default and Notice of Trustee Sale." Id ¶224. Plaintiffs' negligence per se claim alleges that the

defendants are required, pursuant to Cal Civ Code §2923.6, to make "loan modifications with borrowers, if doing so would maximize the net present value of return-on-investment in comparison to the likely return from a foreclosure sale." Id ¶236.

In response to defendants' timeliness motions, plaintiffs assert that the statutory periods should be equitably tolled for each of the claims except claim seven, for which plaintiffs fail to 5

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address the timeliness issue.

The court finds no grounds for the

plaintiffs' request for equitable tolling.

B The doctrine of equitable tolling extends the statutory period only where, "despite all due diligence, a plaintiff is unable to obtain vital information bearing on the existence of his claim." Santa Maria v Pac Bell, 202 F3d 1170, 1178 (9th Cir 2000).

Equitable tolling "focuses on whether there was excusable delay by the plaintiff," and "does not depend on any wrongful conduct by the defendant to prevent the plaintiff from suing." Id.

Plaintiffs oppose the defendants' timeliness motions with a single argument found in the Voorhees opposition: In this case, Plaintiffs pled that their broker deceived them not only as to the true terms of the alleged agreement, but also so that he would not conduct further investigation at the time. Plaintiffs did not know the true terms of the loan until they hired counsel. Therefore, Plaintiffs qualify for equitable tolling of all applicable statutes of limitations. It is not fair to hold the Plaintiffs accountable to discover wrongs which were impossible for them to discover, and which were concealed by Defendant's own wrongdoings. Doc #19 at 2-3. TILA claims must be brought "within one year from the date of the occurrence of the violation." 15 USC § 1640(e). RESPA

claims must be brought "1 year in the case of a violation of section 2607 or 2608 of this title from the date of the occurrence of the violation." 12 USC § 2614. Plaintiffs' TILA and RESPA

claims must be equitably tolled to survive dismissal because the alleged violations of both statutes occurred in 2006. Plaintiffs

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have not alleged facts showing that they were denied any "vital information bearing on the existence" of their TILA or RESPA claims. Santa Maria, 202 F3d at 1178. Indeed, even if plaintiffs

were misled as to the mortgage loan amount, they were certainly put on notice of the actual amount at the time of their first, second and tenth mortgage payments. Second, even if plaintiffs could truthfully plead that they were denied vital information, they have failed to provide reasons for "excusable delay" in bringing this action. Id. The

only reason the plaintiffs offer for filing this lawsuit long after the end of the statutory period is that "their broker deceived them" and "they did not know the true terms of the loan until they hired counsel." Doc #19 at 3.

Plaintiffs do not plead facts showing how the broker "deceived" them or what attempts they made to uncover the allegedly concealed "true terms of the loan." In other words, they have not

offered any allegations indicating that they acted with "due diligence" or with "excusable delay" in bringing this action. Santa Maria, 202 F3d at 1178; see also O'Connor v Boeing N Am, Inc, 311 F3d 1139, 1157-58 (9th Cir 2002) (a plaintiff relying on delayed discovery or fraudulent concealment to toll limitations period must plead when and how she discovered her claim so the court can judge whether information triggering her filing had been available earlier). Plaintiffs clearly state that the TILA

violations were "apparent on the face" of every relevant loan document. Compl ¶183. If defendants' disclosure violations were

so apparent, plaintiffs certainly could have brought their RESPA and TILA claims in a timely manner. 7 Although the "true terms" may

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not have been discoverable until they hired counsel, plaintiffs fail to inform the court when they hired counsel or when their attorney discovered the alleged TILA or RESPA violation. Plaintiffs' arguments in favor of tolling fail to present nonconclusory factual content. Accordingly, defendants' motions to

dismiss claims seven and eleven are GRANTED without leave to amend. Plaintiffs present no additional facts, law, or argument regarding the timeliness of their intentional infliction of emotional distress, negligent infliction of emotional distress or negligence per se claims. Tortuous claims brought in California Cal

require a filing within two years of the alleged violation. Rule Civ Proc § 335.1.

Because there is no further argument in the

oppositions to support plaintiffs' tolling argument, claim twentytwo is time-barred and claims eighteen and nineteen are time-barred with regard to any alleged tortuous conduct during the formation and execution of the mortgage loan in 2006. Accordingly,

defendants' motions to dismiss claim twenty-two are GRANTED without leave to amend, and defendants' motions to dismiss claims eighteen and nineteen are GRANTED IN PART without leave to amend as to conduct in 2006. Construing the facts in the most favorable light

and giving plaintiffs the benefit of the doubt, claims eighteen and nineteen for intentional and negligent infliction of emotional distress are not time-barred to the extent they allege conduct associated with the 2009 non-judicial foreclosure, but are dismissed on other grounds with leave to amend, infra. Plaintiffs' unfair debt collection claims, claims fourteen and twenty-three, are not, however, time-barred. The

relevant federal statutory provision states that "[a]n action to 8

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enforce any liability created by this subchapter may be brought * * * within one year from the date on which the violation occurs." 15 USC § 1692k. The relevant California provision states that

"[a]ny action under this section may be brought * * * within one year from the date of the occurrence of the violation." Code § 1788.30(f). Cal Civ

Although meritless, the alleged debt collection

violations occurred in March 2009, less than one year before plaintiffs filed the complaint.

C Plaintiffs' remaining claims all require a showing of sufficient facts under a cognizable legal theory that defendants' actions concerning either the 2009 non-judicial foreclosure or the formation and execution of the 2006 mortgage loan were improper. Plaintiffs fail to make this required showing, therefore defendants' motions to dismiss the remaining claims are GRANTED.

1 The claims for quiet title (claim three), breach of the duty to disclose (claim nine), slander of title (claim sixteen), intentional infliction of emotional distress (claim eighteen), negligent infliction of emotional distress (claim nineteen) and unfair debt collection pursuant to 15 USC § 1692 and Cal Civ Code § 1788.17 (claims fourteen and twenty-four) each require a showing that the 2009 non-judicial foreclosure was improper. Plaintiffs

allege that "Defendants were not in possession of the Note, and were not either holders in due course of the Note, or non-holders entitled to payment * * * Defendants were proceeding to foreclose 9

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non-judicially without right under the law." Plaintiffs further allege that the loan

Compl ¶44.

was unconscionable and unenforceable in that the payments exceeded Plaintiffs' income; that Defendants * * * did not disclose to Plaintiff the terms and conditions of the loan; that subsequent holders of the Notes executed by Plaintiff, including but not limited to Chase Home Finance, LLC, were not and are not lawful holders in due course of the Note and Deed of Trust. Further, Plaintiff contends that Defendants, and each of them, had no right to foreclose on Plaintiff's Note and Deed of Trust. Id ¶74. Plaintiffs articulate the thrust of their twenty-four

claims in stating that "[s]ince there is no right to enforce the negotiable instrument, the Notice of Default * * * and Notice of Sale * * * were likewise never complied with, and there is no subsequent incidental right to enforce any deed of trust and conduct a non-judicial foreclosure." Id ¶86.

Under California law, a "trustee, mortgagee or beneficiary or any of their authorized agents" may conduct a nonjudicial foreclosure process. Cal Civ Code § 2924(a)(1).

California Civil Code § 2924b(b)4, defines a "person authorized to record the notice of default or the notice of sale" as "an agent for the mortgagee or beneficiary, an agent of the named trustee, any person designated in an executed substitution of trustee, or an agent of that substituted trustee." Cal Civ Code § 2924b(b)(4). California law does not require that the original note be in the possession of the party initiating non-judicial foreclosure. Gonzalez v Wells Fargo Bank, 2009 WL 3572118 at *5 (ND Cal 2009) (internal quotes omitted). Because California law does not require the original note to be in the possession of the party initiating non-judicial foreclosure and each relevant legal transfer, assignment or notice

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was in accordance with a contractual provision in the bargained for contract, plaintiffs fail to present a cognizable legal argument with regard to the validity of (1) the March 27, 2009 Notice of Default and Election to Sell Under Deed of Trust Notice (2) the May 4, 2009 Substitution of Trustee (3) the May 13, 2009 Assignment of Deed of Trust or (4) the July 1, 2009 Notice of Trustee Sale. Claims fourteen and twenty-three allege violations of the federal and California unfair debt collection statutes, 15 USC § 1692 and Cal Civ Code § 1788.17. Plaintiffs allege that they

were subject to "harassment," "unconscionable means to collect or attempt to collect debt" and "deceptive means to collect or attempt to collect a debt from the Plaintiffs." Compl ¶249. Defendants

argue that they are not debt collectors as defined by either statute because a non-judicial foreclosure is not a collection of debt. Doc #10 at 36, Doc #18 at 13-14. Even assuming that the

statutes are applicable, plaintiffs fail to present non-conclusory factual allegations of prohibited conduct by defendants. A

determination of each defendant's status as a debt collector within the terms of the state or federal statute is unnecessary because the facts do not sufficiently allege an improper non-judicial foreclosure. Plaintiffs' failure to sufficiently plead evidence

indicating an improper non-judicial foreclosure renders the unfair debt collection claims moot. Defendants' motions to dismiss claims

fourteen and twenty-three are GRANTED with leave to amend. Similarly, plaintiffs fail to present a legally cognizable argument with respect to their slander of title claim (claim sixteen). At the core of plaintiffs' argument is that the

Notice of Default was executed or recorded without privilege. 11

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Id ¶213.

Pursuant to the court's determination above that the

Notice was correctly executed, the argument is without merit, and the determination of whether or not the Notice was a privileged communication under Cal Civ Code § 2924 is moot. Defendants'

motions to dismiss claim sixteen are GRANTED with leave to amend. Claim nine alleges that Voorhees breached the broker's duty to disclose the material terms of the Note and Deed of Trust, thereby rendering the 2009 non-judicial foreclosure unenforceable. Id ¶¶166-172. As stated above, plaintiffs fail to present facts

that suggest imperfections in the execution of the Note or Deed of Trust. Voorhees' motion to dismiss claim nine is GRANTED with

leave to amend. The non-time-barred portions of plaintiffs' claims for intentional and negligent infliction of emotional distress (claims eighteen and nineteen) require a showing that the 2009 non-judicial foreclosure was improper. Having failed to present non-conclusory

facts or a cognizable legal argument with regard to the validity of (1) the March 27, 2009 Notice of Default and Election to Sell Under Deed of Trust Notice (2) the May 4, 2009 Substitution of Trustee (3) the May 13, 2009 Assignment of Deed of Trust or (4) the July 1, 2009 Notice of Trustee Sale, defendants' motions to dismiss claims eighteen and nineteen are GRANTED with leave to amend. Having failed to oppose defendants' Request for Judicial Notice, and having failed to demonstrate that defendants did not comply with California or federal law in commencing the foreclosure process, plaintiffs cannot state a claim under any theory based on purported "failures" in the process. Defendants' motions to

dismiss claims three, nine, fourteen, sixteen, eighteen, nineteen and twenty-three are GRANTED with leave to amend. 12

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2 Plaintiffs allege fraud (claim five), constructive fraud (claim six) and actual fraud pursuant to Cal Civ Code § 1572 (claim twenty-four). Specifically plaintiffs allege that the "Broker had

plaintiffs sign a blank application and then filled in the information fraudulently. On information and belief, broker was Id ¶108. Plaintiffs further

coached by Lender on how to do so."

allege that although they were qualified for a prime loan "Defendants ushered Plaintiff into a subprime loan" that was "foreseeably doomed to fail." Id ¶112. Plaintiffs allege that the

loan agreement was "a contract of adhesion" and that "no negotiations were possible." Id ¶123. Plaintiffs also allege that

defendants, collectively, effectuated a fraudulent scheme intended to convert plaintiffs' right, title and interest to the defendants. Id ¶120. Construing the facts in the light most favorable to the plaintiffs, the allegations concerning the blank loan application are the only facts that are pled with additional particularity. While these allegations provide increased specificity, plaintiffs fail to describe what in the application was fraudulently completed by Voorhees as the Broker, when these acts occurred, and how the plaintiffs were specifically injured as a result of the defendants' allegedly fraudulent acts. Similarly, plaintiffs fail to allege

specific facts that describe how and which defendants ushered them into signing the subprime loan over the prime loan. Nor do the

plaintiffs present facts that support or demonstrate that the mortgage loan was nonnegotiable. Plaintiffs argue that "[a]n exception to the strict pleading standard for fraud is recognized when it appears the facts 13

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lie more within the Defendant's knowledge than Plaintiffs." #18 at 10.

Doc

Yet, plaintiffs bring no facts to the attention of the

court which could plausibly indicate that defendants have access to any additionally relevant information. Plaintiffs' suit concerns

notices, assignments, notes and deeds that are all within the possession of both parties and before the court. There are no

other facts or documents that could change the dynamics of the dispute or enhance the veracity of these claims. The court notes that defendant Voorhees failed to include the forty-first page of plaintiffs' complaint, which undoubtedly includes allegations regarding the twenty-fourth cause of action for actual fraud and the first two prayers for relief. A claim for

actual fraud in California requires a showing that defendants made knowing misrepresentations with an intent to deceive or induce plaintiffs into signing the mortgage loan. Cal Civ Code § 1572.

For the reasons stated above, regarding claims for fraud and constructive fraud, the plaintiffs fail to plead adequate facts alleging deceptive behavior by defendants. Although no party

brings the missing page of the complaint to the court's attention, none of the factual allegations alleged in the first forty pages of the complaint suggest any facts sufficient to support a claim of actual fraud that would overcome the defendants' motions to dismiss. Defendants' motions to dismiss plaintiffs' claims for

fraud, constructive fraud and actual fraud, claims five, six and twenty-four, are GRANTED with leave to amend.

3 Claims one, two, ten, twelve, thirteen and seventeen allege statutory violations of California or federal law. 14 For the

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following reasons plaintiffs' remaining statutory claims are dismissed without prejudice. Claim one alleges a violation of Cal Rev & Tax Code §§ 23304, 23305a, seeking a cancellation of a voidable contract. Defendants claim that MERS is exempt from California registration requirements because it does not transact business in the state under Cal Corp Code § 191 which exempts corporations for "the enforcement of any loans by trustee's sale." Id § 191(d)(3).

Plaintiffs allege that MERS "is in the business of operating a database and serving as a straw man for banks," but the facts as alleged fail to demonstrate that MERS performed actions outside of the enforcement of loans by trustee's sale. The May 13, 2009

Assignment of Deed of Trust, whereby MERS assigned all beneficial interest under the deed to Wells Fargo Bank, is the only specific action by MERS that plaintiffs expressly allege in their complaint. Compl ¶51, Doc #11 at 30. The MERS assignment is the type of act

explicitly exempted by section 191(d)(3), and plaintiffs fail to allege any other actions by MERS beyond this exempted assignment. Defendants' motions to dismiss claim one are GRANTED with leave to amend. Claim two alleges a violation of Cal Civ Code § 1189, seeking expungement of the Substitution of Trustee and the Assignment of Deed of Trust. Compl ¶¶56-59. Although plaintiffs

allege that this is a strict compliance statute, Doc #18 at 6, the statute states that "any certificate of acknowledgment taken in another place shall be sufficient in this state if it is taken in accordance with the laws of the place where the acknowledgment is made." Cal Civ Code § 1189(b). The Court takes judicial notice

that the Substitution of Trustee and Assignment of Deed of Trust 15

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appear to have been taken in Texas.

Doc #11 Exs 3 and 4.

Plaintiffs fail to allege how either document was not in accordance with the laws of Texas. Defendants' motions to dismiss claim two

are GRANTED with leave to amend. Claim ten alleges a violation of the California Legal Remedies Act ("CLRA"), Cal Civ Code § 1770. Plaintiffs and

defendants dispute the applicability of CLRA to real property and the mortgage loans that accompany the sale of real property. The

court declines the parties' invitation to rule on this undecided question of California law because the plaintiffs fail to allege facts that establish an actual violation of CLRA. Although the

plaintiffs purport to identify twelve separate violations of CLRA, Compl ¶¶29-30, they fail to present non-conclusory factual allegations, therefore defendants' motions to dismiss claim ten are GRANTED with leave to amend. Claims twelve and thirteen allege violations of California's Unfair Competition Laws ("UCL"), Cal Bus & Profs Code §§ 17500, 17200. Plaintiffs claim that defendants have engaged in

advertising that was inherently deceptive for the purpose of inducing members of the public to enter into misleading mortgage loans. Compl ¶187. Plaintiffs claim that "the loan titles were

inherently deceptive as to the true nature of the loan by, for example, using the word `fixed' to describe a variable rate loan which is only fixed for an introductory period." Id ¶189.

Sections 17200 and 17500 require showings of fact that demonstrate, at very least, "unlawful conduct." UCL § 17200 et seq. The only

fact alleged is that the word "fixed" is used to describe a variable rate loan, but plaintiffs fail to plead this fact with any particularity. Plaintiffs fail to allege how this statement is 16

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contrary to public policy, likely to mislead the public or how the term was misleading to the plaintiffs. Plaintiffs fail to

establish where the alleged advertisements were published or in what context the term "fixed" was even used by defendants. Plaintiffs fail to sufficiently allege facts that any of the defendants made misrepresentations regarding the formation of the mortgage loan or any point thereafter, therefore defendants' motions to dismiss claims twelve and thirteen are GRANTED with leave to amend. Claim seventeen alleges a violation of the Racketeer Influences and Corrupt Organizations Act ("RICO"), 18 USC § 1961 et seq. Plaintiffs allege that defendants were effectuating a

fraudulent scheme to take title of their property from the inception of the mortgage loan agreement. Compl ¶120. Plaintiffs

further allege that "Defendants and each of them participated in a scheme of racketeering as that terms [sic] is defined in the Racketeer Influenced and Corrupt Organizations Act." Id ¶218.

This is a legal conclusion and not a specifically pled fact or a cognizable legal theory. Plaintiffs fail to make a single factual

allegation that identifies an illicit enterprise as defined by the RICO act, which is a pleading burden expressly required by the statute. 18 USC § 1962(a-d). Defendants' motions to dismiss claim

seventeen are GRANTED with leave to amend. Plaintiffs fail to state a substantive claim upon which relief can be granted, thereby rendering moot their remedial claims for an accounting (claim four), reformation (claim eight), declaratory relief (claim fifteen), rescission (claim twenty) and injunctive relief (claim twenty-one). Defendants' motions to

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dismiss claims four, eight, fifteen, twenty and twenty-one are GRANTED without prejudice.

III For the reasons stated herein, defendants' motions to dismiss claims seven, eleven, eighteen, nineteen and twenty-two are GRANTED without leave to amend except those portions of claims eighteen and nineteen for intentional and negligent infliction of emotional distress to the extent based upon the 2009 non-judicial foreclosure which are dismissed with leave to amend, as hereafter provided. Defendants' motions to dismiss claims one, two, three, four, five, six, eight, nine, ten, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, eighteen, nineteen, twenty, twentyone, twenty-three and twenty-four are GRANTED with leave to amend. As directed by the court at the hearing, plaintiffs must plead additional facts with enhanced particularity and explicitly identify which defendants are implicated in each individual claim. Plaintiffs must file an amended complaint on or before March 22, 2010. If plaintiffs fail to file a timely amended complaint, the

court will dismiss all the claims with prejudice and enter judgment for defendants.

IT IS SO ORDERED.

VAUGHN R WALKER United States District Chief Judge

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