Zivanic v. Washington Mutual Bank, F.A. et al

Filing 20

ORDER by Judge Samuel Conti granting in part and denying in part 4 Motion to Dismiss (sclc2, COURT STAFF) (Filed on 6/9/2010)

1 2 3 4 5 6 7 8 9 10 YVONNE ZIVANIC, ) ) Plaintiff, ) v. ) ) WASHINGTON MUTUAL BANK, F.A.; ERIC ) DIPPEL; LISA DIPPEL; JPMORGAN ) CHASE BANK, N.A.; DEUTSCHE BANK ) NATIONAL TRUST COMPANY; QUALITY ) LOAN SERVICE CORPORATION; and DOES ) 1-50, inclusive, ) ) Defendants. ) ) I. INTRODUCTION Now before the Court is a Motion to Dismiss filed jointly by Defendants JPMorgan Chase Bank, N.A. ("JPMorgan") and Deutsche Bank ("Deutsche").1 fully briefed. Docket No. 4 ("MTD"). The Motion to Dismiss is For the Case No. 10-737 SC ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

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1

Docket Nos. 12 ("Opp'n"), 13 ("Reply").

reasons described below, the Court GRANTS IN PART and DENIES IN PART Defendants' Motion to Dismiss.

II.

BACKGROUND By this action, Plaintiff Yvonne Zivanic ("Zivanic")

challenges alleged misconduct that took place during the No other Defendant participated in this Motion.

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origination of a housing loan, during her subsequent efforts to modify that loan, and during the procedures that led to the recent foreclosure of her home. Ex. 1 ("Compl."). Zivanic claims that in late 2004, she and her husband began working with Defendants Eric Dippel and Lisa Dippel, who were allegedly employed as brokers/salespersons by Defendant Washington Mutual Bank, F.A. ("WaMu"). Id. ¶¶ 4-5, 16-17. The Dippels were See Docket No. 1 ("Notice of Removal")

assisting Zivanic in securing finance for the purchase of her house, which is located in Santa Clara County, California. ¶¶ 1, 3. Id.

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Zivanic and her husband received a loan for $885,000 Id. ¶¶ 19-20. According to the

pursuant to a Deed of Trust.

Complaint, the Dippels "led Plaintiff and her husband to believe that she would be approved for a loan with certain terms. However,

the NOTE contained a higher interest rate than what had been originally represented to Plaintiff, wrapped unearned fees into Plaintiff's monthly mortgage payment, and contained other less favorable terms." Id. ¶ 22. Zivanic complains that she and her

husband should not have been approved for the loan because they would be unable to afford the fully amortized payment rates. ¶ 23. Id.

The Deed of Trust named WaMu as the lender and beneficiary, Id.

and California Reconveyance Company was named as the trustee. Ex. A ("DoT") at 1. In early 2008, Zivanic and her husband began experiencing

difficulties making their monthly loan payments, and "they began to talk to WAMU representatives regarding forbearance." Id. ¶ 29.

Defendants began taking measures to foreclose upon Plaintiff's residence. By an "Assignment of Deed of Trust" dated July 1, 2008

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(and recorded on August 15, 2008), WaMu assigned the Deed of Trust to "DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUSTEE FOR WAMU 05-AR6 G2." Id. Ex. E ("DoT Assignment") at 1. By a "Substitution of

Trustee" dated July 1, 2008 (and recorded on August 27, 2008), Deutsche then designated Defendant Quality Loan Services Corporation ("Quality") as the trustee. of Trustee") at 5-6. Id. Ex. F ("Substitution

On the following day, July 2, 2008, Quality

filed a Notice of Default and Election to Sell Under Deed of Trust ("Notice of Default") with the recorder for the County of Santa Clara. Id. ¶ 30, Ex. D.

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Plaintiff claims that Defendant JPMorgan assumed WaMu's assets and liability when WaMu went bankrupt in September of 2008. ¶ 33. Id.

In October of 2008, Zivanic and her husband contracted with

Amerivest "to assist in negotiating a forbearance plan with WAMU," and on November 19, 2008, she was informed by Gwendolyn Smith "of WAMU's Loss Mitigation Department" that they had been approved for a "Special Forbearance Agreement" ("SFA"). Id. ¶ 37, Ex. H.

Zivanic and her husband signed the SFA, which required a program entrance fee as well as three debt-reduction payments scheduled to take place in late 2008 and early 2009. made these payments. Id. ¶ 39. Id. ¶¶ 37-38. Zivanic

Zivanic and her husband received a letter from WaMu on December 18, 2008, which informed them that their payments would be set at $3938.64 per month starting in February of 2009. Id. ¶ 41.

However, "[w]hen Mr. Zivanic attempted to make the first payment, he was advised that the letter was sent in error," and after calling his contact at WaMu, he "was told not to pay anything because they had not determined the final loan modification

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payment."

Id. ¶¶ 41-42.

Zivanic and her husband continued to work

with WaMu to modify their loan, and continued to provide information as requested. Id. ¶¶ 43-44. Nevertheless, on August

6, 2009, Quality sold Zivanic's residence to Deutsche at public auction. Id. ¶ 45, Ex. J. Deutsche then filed an unlawful

detainer action against Zivanic and her husband on September 21, 2009. Id. ¶ 48. Zivanic apparently still possesses the property, See id.

and filed this action in an attempt to retain possession. ¶ 51.

Zivanic's Complaint was removed to federal court on February 19, 2010. On May 7, 2010, the Court denied Plaintiff's motion to Docket No. 17. Now the

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remand this case back to state court.

Court addresses Defendants' Motion to Dismiss.

III. LEGAL STANDARD A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) "tests the legal sufficiency of a claim." Block, 250 F.3d 729, 732 (9th Cir. 2001). Navarro v.

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 F.2d 696, 699 (9th Cir. 1990). Allegations of material fact are taken as true and

construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Although well-pleaded factual allegations are taken as

true, a motion to dismiss should be granted if the plaintiff fails to proffer "enough facts to state a claim for relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544,

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547 (2007).

The court need not accept as true legal conclusions Ashcroft v. Iqbal, 129 S.Ct. 1937,

couched as factual allegations. 1949-50 (2009).

"Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice." Id. at 1949.

IV.

DISCUSSION A. JPMorgan's Limited Assumption of Liability

JPMorgan contends that it is not subject to "any alleged liability for WAMU's purported acts related to the Subject Loan prior to JPMorgan's entering into the Agreement with the FDIC on September 25, 2008." MTD at 4. Plaintiff alleges that WaMu was

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the original lender and beneficiary under the Deed of Trust, and that JPMorgan later succeeded Washington Mutual in its role. Compl. ¶¶ 3, 20-21, 33. However, JPMorgan did not acquire these According to JPMorgan, the

loans in full, directly from WaMu.

Office of Thrift Supervision appointed the Federal Deposit Insurance Corporation ("FDIC") as the receiver for WaMu, and the FDIC thereby "took over the assets of" WaMu and assumed the power to transfer its assets and liabilities. 12 U.S.C. The FDIC

§§ 1821(d)(2)(A)(i), 1821 (d)(2)(B)(i), 1821(d)(2)(G)(i).

then entered into a Purchase and Assumption Agreement ("PAA") with JPMorgan, wherein JPMorgan assumed assets, but not associated liabilities, that had belonged to WaMu. Notice ("RJN") Ex. 1 ("PAA").2 Request for Judicial

2

Plaintiff submitted a Request for Judicial Notice in support of her Motion to Dismiss. Docket No. 5. The PAA is a public document and this Court may consider it without converting the Motion to 5

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Part of the PAA states: [A]ny liability associated with borrower claims for payment of or liability to any borrower for monetary relief, or that provide for any form of relief to any borrower . . . related in any way to . . . any loan made by a third party in connection with a loan which is or was held by the Failed Bank, or otherwise arising in connection with the Failed Bank's lending or loan purchase activities are specifically not assumed by the Assuming Bank. Id. § 2.5. Other courts that have interpreted this provision have

concluded that "JPMorgan Chase expressly disclaimed assumption of liability arising from borrower claims," thereby leaving "the FDIC as the responsible party with respect to those claims." Hilton v.

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Wash. Mut. Bank, No. 09-1191, 2009 U.S. Dist. LEXIS 100441, *6-9 (N.D. Cal. Oct. 28, 2009) (quoting Cassese v. Wash. Mut. Bank, 052724, slip op. at 6 (E.D.N.Y. Dec. 22, 2008)); see also Payne v. Security Sav. & Loan Ass'n, 924 F.2d 109, 111 (7th Cir. 1991) ("Absent an express transfer of liability by the [Receiver] and an express assumption of liability by Security Federal, FIRREA directs that [the Receiver] is the proper successor to the liability at issue here."); Gunter v. Hutcheson, 674 F.2d 862, 865 (11th Cir. 1987) (discussing purchase and assumption process and explaining rationale for limitations on liability). Based on the above, the

Court concludes that JPMorgan is not a proper defendant to those aspects of Plaintiff's Complaint that can be characterized as "borrower claims." The PAA explicitly does not relieve JPMorgan from any liability that it has incurred in its role as a loan servicer. PAA

Dismiss into a motion for summary judgment. See Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001). 6

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§ 2.1; see also Punzalan v. Fed. Deposit Ins.Co., No. 09-0087, 2009 U.S. Dist. LEXIS 57829, *3 (W.D. Tex. July 9, 2009) ("Chase Bank purchased Washington Mutual on the condition that FDIC remain responsible for any Borrower Claims . . . in connection with Washington Mutual's lending or loan purchase activities. In

exchange . . . Chase Bank promised to assume responsibility for all other liabilities, specifically including all mortgage servicing rights and obligations of Washington Mutual." (citations and internal quotation marks omitted)). JPMorgan therefore may still

be held liable for misbehavior or fraudulent representations made in the course of its provision of loan services to Plaintiff. In

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addition, JPMorgan explicitly qualifies its immunity by asserting it only as to acts that occurred prior to September 25, 2008, when JPMorgan assumed its interest in Plaintiff's loan. See MTD at 4.

The Court will address each of the causes of action that Defendants' challenge with these limitations in mind. B. Plaintiff's First and Second Causes of Action for Fraud and Misrepresentation Plaintiff's claims for fraud and misrepresentation against JPMorgan are based solely on WaMu's involvement in the initial loan origination process. See Compl. ¶¶ 52-68. As explained in the

previous section, JPMorgan is not liable for this conduct. Therefore, the Court dismisses Plaintiff's first and second causes of action as to JPMorgan to the extent that they are based on WaMu's loan origination activities. In Plaintiff's Opposition, Plaintiff contends that Deutsche assumed WaMu's liabilities. Opp'n at 5. However, the Complaint Compl.

does not assert these causes of action against Deutsche.

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¶¶ 52-68.

Plaintiff also argues that it is asserting these causes

of action against JPMorgan for activities related to their loan modification efforts. Opp'n at 5. There is nothing in the first

or second causes of action to indicate that Plaintiff is attempting to raise loan-modification issues through these claims. The

Opposition therefore describes broader claims than those indicated by the Complaint. The Complaint fails to put either JPMorgan or

Deutsche on notice of how her claims for fraud and misrepresentation relate to conduct that occurred during the loanmodification process. Plaintiff will be granted leave to amend to

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address these deficiencies. C. Plaintiff's Fifth Cause of Action for Breach of Covenant of Good Faith and Fair Dealing This cause of action focuses on the conduct of the various Defendants that took place while Plaintiff and her husband were attempting to work with WaMu and/or JPMorgan to modify their loan, including the actions by Deutsche and Quality to proceed with the foreclosure of their residence. Compl. ¶¶ 81-86. Although

Plaintiff asserts this claim against JPMorgan and Deutsche (as well as WaMu and Quality), Defendants only seek to dismiss this cause of action as to Deutsche.3 A claim for breach of the covenant of good faith and fair dealing must be based on a contract between the plaintiff and the defendant.
3

Smith v. San Francisco, 225 Cal. App. 3d 38, 49 (Ct.

Defendants did not raise arguments in defense of JPMorgan until their Reply. MTD Reply at 9. Defendants' Reply may not include arguments that were not already raised in their Motion to Dismiss, except to respond to Plaintiff's Opposition, so the Court will not consider the arguments in defense of JPMorgan.

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App. 1990).

Deutsche's only argument against this cause of action

is that Plaintiff must be basing it on the loan modification agreement between Plaintiff and either JPMorgan or WaMu, and Deutsche claims to have had no involvement in this agreement. at 11. However, the Complaint can be fairly read to indicate that the Deed of Trust was the underlying contract that allegedly gave rise to the covenant of good faith and fair dealing. Compl. ¶ 84. See DoT MTD

Deutsche was the assignee of WaMu as to the Deed of Trust. Assignment at 1.

It may or may not have been a breach of the

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covenant of good faith and fair dealing to proceed with foreclosure while Plaintiff was negotiating loan modification with the apparent loan servicer, and while Plaintiff was following instructions to withhold payments until modification was complete. The Court is

not willing to determine, in the absence of competent briefing, whether the Deed of Trust establishes a contractual relationship sufficient to give rise to an obligation of good faith and fair dealing. However, this possibility requires the Court to deny

Defendants' request to dismiss Plaintiff's fifth cause of action. D. Plaintiff's Sixth Cause of Action for Violation of California Civil Code Section 2923.5(a)(2) California Civil Code section 2923.5(a)(2) provides, in part, that "[a] mortgagee, beneficiary, or authorized agent shall contact the borrower in person or by telephone in order to assess the borrower's financial situation and explore options for the borrower to avoid foreclosure." Plaintiff contends that this code section

placed an obligation on WaMu, JPMorgan, Deutsche, and Quality to modify the loan terms rather than foreclose on her property.

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Compl. ¶¶ 87-90. Defendants first argue that section 2923.5(a)(2) is inapplicable because it came into effect on September 1, 2008, and the Notice of Default in this case was filed several months before that date. MTD at 11-12. However, section 2923.5(c) clearly

extends a similar obligation where "a mortgagee, trustee, beneficiary, or authorized agent had already filed the notice of default prior to the enactment of this section," by requiring them to file a declaration certifying that "the borrower was contacted to assess the borrower's financial situation and to explore options for the borrower to avoid foreclosure." § 2923.5(c). Cal. Civ. Code

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Based on the allegations in the Complaint, Defendants

may not have been in compliance with this statute. Defendants next argue that section 2923.5(a)(2) creates no private right of action. MTD at 12-13. Plaintiff effectively

concedes this point by arguing that she may still raise this argument to support her claim under California's Unfair Competition Law ("UCL") by using Defendants' violation to establish that their conduct was "unlawful." Opp'n at 10-11. Plaintiff presents no

argument that the section 2923.5(a)(2) claim can be maintained as an independent claim. Plaintiff's sixth cause of action is

therefore DISMISSED WITH PREJUDICE. Nevertheless, the Court sees no reason why Plaintiff cannot support her UCL claim by alleging that Defendants violated section 2923.5(a)(2). Defendants only response to this proposition is to

argue that Plaintiff must seek to certify a class, and meet the requirements of section 382 of the California Code of Civil Procedure, before she can use section 2923.5(a)(2) as a predicate

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for her UCL claim. merit.

Reply at 11.

This argument is wholly without

Plaintiff is not seeking to represent a class, and she need

only meet the requirements of section 382 if she is seeking to "pursue representative claims or relief on behalf of others . . . ." Cal. Bus. & Prof. Code § 17203. The UCL's standing requirement

for a private party is established by section 17204 of the California Business and Professions Code, and this section explicitly authorizes suit "by a person who has suffered injury in fact and has lost money or property as a result of" unlawful conduct. Id. at § 17204. Plaintiff is clearly alleging she has

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lost money or property as a result of unlawful conduct. E. Plaintiff's Seventh Cause of Action for Violation of UCL

As noted in the previous section, Plaintiff has stated at least one basis upon which Defendants' conduct might be deemed "unlawful" under the UCL. The Court therefore declines to dismiss

Plaintiff's seventh cause of action. F. Plaintiff's Eighth Cause of Action for Unconscionability

Plaintiff alleges that the promissory note related to the Deed of Trust was unconscionable because "Plaintiff was made to pay several unearned and excessive fees, which caused the Plaintiff's loan to contain an interest rate and monthly mortgage payment greater than those promised by WaMu." Compl. ¶ 100. Plaintiff

also claims that "WAMU operated from a position of superior bargaining power . . . and took advantage of the Plaintiff . . . ." Id. at 101. According to Plaintiff, JPMorgan is liable because it

"masked WAMU's unlawful conduct by continuing to act as if they were processing Plaintiff's loan modification agreement" and Deutsche and Quality are liable because they were working towards

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"a procedurally flawed nonjudicial foreclosure."

Id. ¶ 102.

Setting aside the question of whether a Plaintiff may be able to state a cause of action for "unconscionability," which is normally a defense to a contract claim, the Court finds that Plaintiff has failed to plead a basis for contractual unconscionability. "[U]nconscionability has both a 'procedural'

and a 'substantive element,' the former focusing on 'oppression' or 'surprise' due to unequal bargaining power, the latter on 'overly harsh' or 'one-sided' results." Armendariz v. Found. Health

Psychcare Servs., Inc., 24 Cal. 4th 83, 114 (2000) (citation omitted). The Court cannot identify any aspect of procedural Plaintiff complains

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unconscionability in Plaintiff's allegations.

that the "interest rate and monthly mortgage payments [were] greater than those promised by WaMu," but the Complaint and its exhibits indicate that Plaintiff signed a rider authorizing an adjustable interest rate and monthly payment changes, which notified Plaintiff that she could potentially face a larger debt that what she originally borrowed. Rate Rider") at 1. See Compl. Ex. B ("Adjustable

Plaintiff has not suggested that any of the

changes in her payments exceeded the scope of what she authorized by signing the Adjustable Rate Rider. This claim therefore lacks

any element of "oppression" or "surprise," and is DISMISSED WITHOUT PREJUDICE as to all Defendants. G. Plaintiff's Ninth Cause of Action for Unjust Enrichment Plaintiff alleges that JPMorgan, WaMu, and Deutsche "were able to sell Plaintiff's mortgage to investors at an inflated value," and Quality "was able to earn fees from a Trustee's Sale that was procedurally flawed," and that Defendants were thereby unjustly

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enriched.

Compl. ¶ 105.

To state a claim for unjust enrichment,

Plaintiff must plead the "receipt of a benefit and the unjust retention of the benefit at the expense of another." Lectrodryer The Court

v. Seoulbank, 77 Cal. App. 4th 723, 726 (Ct. App. 2000).

does not find Plaintiff's theory of unjust enrichment to be legally plausible. This cause of action explicitly focuses on the profit

that Defendants garnered from the "inflated value" of Plaintiff's mortgage when WaMu sold it to investors, but there is no indication that this "inflated value" was reaped at Plaintiff's expense. In Plaintiff's Opposition, Plaintiff also suggests that this cause of action is based on Defendants' collection of "unearned fees." These fees are not clearly explained or identified in the See, e.g.,

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Complaint,4 although they are mentioned several times. Compl. ¶¶ 22, 24, 56.

This cause of action is therefore DISMISSED

with regard to Defendants JPMorgan and Deutsche. H. Plaintiff's Tenth Cause of Action for Accounting

Plaintiff alleges that "[t]he true lenders and owners of the loan are the individual investors of the securitized loan," and that Defendants have no right to receive any of the payments Plaintiff has made on the loan. compelling. Compl. ¶ 107. The claim is not

The Complaint does not indicate any legal basis for

concluding that entities other than Defendants are entitled to her loan payments. Her assertion that her loan payments should be made

to the purchasers of the security instrument backed by Plaintiff's mortgage is pure speculation.
4

This Court need not accept the

For example, it is not clear whether Plaintiff is referring to the fees associated with her monthly payments, with loan origination, or with the SFA. Clarity in this regard is necessary to allow Defendants to prepare their defense.

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Complaint's legal conclusions are true. 50.

Iqbal, 129 S.Ct. at 1949-

In addition, Plaintiff seeks an accounting to determine the amount owed under the loan. Compl. ¶ 108. "A cause of action for

an accounting requires a showing that a relationship exists between the plaintiff and defendant that requires an accounting, and that some balance is due the plaintiff that can only be ascertained by an accounting." Hafiz v. Aurora Loan Servs., No. 09-1963, 2009 WL

2029800, at *2 (N.D. Cal. July 14, 2009) (quoting Teselle v. McLoughlin, 173 Cal. App. 4th 156, 179 (Ct. App. 2009)). does not allege that any balance is due to her. Plaintiff

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Instead, she seeks

an accounting to determine how much money she owes under the loan. Compl. ¶ 108. Plaintiff does not cite any authority that supports

her right to seek an accounting under these circumstances. Accordingly, Plaintiff's claim for an accounting is DISMISSED WITH PREJUDICE as to all Defendants. I. Plaintiff's Eleventh Cause of Action for Quiet Title

The Complaint's quiet title claim is based entirely on Plaintiff's baseless legal assertion that "Defendants' security interest in the SUBJECT PROPERTY has been rendered void and . . . the Defendants are not the holder in due course of the NOTE, and they are not the one entitled to the possession of the NOTE. Only

the individual investors of the securitized loan are entitled to act on the loan." Compl. ¶ 110. The Court rejects Plaintiff's Plaintiff alleges that the

conclusions as legally incorrect.

foreclosure procedures were initiated by Quality, which had been designated the trustee under the Deed of Trust. See Substitution

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of Trustee at 5-6.

As the trustee, Quality was entitled to See Cal. Civ. Code § 2924. "Under Civil Code

initiate foreclosure proceedings.

Case law addressing this issue is clear:

section 2924, no party needs to physically possess the promissory note." Sicairos v. NDEX West, LLC, No. 08-2014, 2009 U.S. Dist.

LEXIS 11223, at *7 (S.D. Cal. Feb. 11, 2009); see also Coyotzi v. Countrywide Fin. Corp., No. 09-1036, 2009 U.S. Dist. LEXIS 91084, at *53-54 (E.D. Cal. Sept. 15, 2009) (same); Lomboy v. SCME Mortgage Bankers, No. 09-1160, 2009 U.S. Dist. LEXIS 44158, *12-13 (N.D. Cal. May 26, 2009) ("Under California law, a trustee need not possess a note in order to initiate foreclosure under a deed of trust."). Plaintiff's quiet title claim is DISMISSED WITH

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PREJUDICE as to all parties. J. Plaintiff's Twelfth and Thirteenth Causes of Action for Declaratory and Injunctive Relief Plaintiff's claims for declaratory and injunctive relief are also based on the same untenable theory that Defendants lost the power to foreclose on Plaintiff's property after they sold the promissory note and the note was securitized. 123. Compl. ¶¶ 113-19,

The claims are therefore DISMISSED WITH PREJUDICE. K. Plaintiff's Federal Claims

Plaintiff alleges that WaMu violated various federal statutes, including the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. §§ 2601 et seq., the Truth in Lending Act ("TILA"), 15 U.S.C. §§ 1601 et seq., and the Equal Credit Opportunity Act ("ECOA"), id. §§ 1691 et seq., and that JPMorgan and Deutsche are liable as WaMu's successors in interest. Compl. ¶¶ 92, 94-96.

Defendants respond by pointing out that JPMorgan is not liable for

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these claims, as they are all "borrower claims," as discussed in Part IV(A), supra. An examination of the Complaint bears out JPMorgan's contention. Plaintiff claims that WaMu breached TILA because it

used Plaintiffs' "improper, unverified, and stated income to verify the loan, and their fraudulent acts led to a failure to disclose the proper terms of the loan to Plaintiff." Compl. ¶ 96. WaMu

allegedly violated ECOA "by intentionally entering Plaintiff into a loan with an interest rate and monthly payment greater than what her and her husband were approved for." Id. ¶ 95. WaMu's only

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alleged RESPA violation was failure "to properly underwrite Plaintiff's loan causing her to enter a mortgage with a higher interest rate and monthly payment than she and her husband were approved for, and resulting in a loan that they could not reasonably afford." Id. ¶ 94. All of these alleged violations

take place during the loan origination process, rather than during the provision of loan services. Plaintiff's Opposition also indicates that JPMorgan should be liable for communications made to Plaintiff during the loan modification process, during which it was not clear whether Plaintiff was working with WaMu or JPMorgan. Opp'n at 5-6.

However, neither the Opposition nor the Complaint indicates how this behavior implicates any of the federal statutes. Plaintiff

has not alleged any violation of federal law for which JPMorgan may be held liable. Plaintiff also asserts in her Opposition that "Deutsche assumed Defendant WAMU's position under the Promissory Note and the Deed of Trust through the" Assignment of Deed of Trust, and that

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"[a]s an assignee, DEUTSCHE stands in the shoes of the assignor, WAMU." Id. at 5. Plaintiff may bring an action against an

assignee under TILA "only if the violation for which such action or proceeding is brought is apparent on the face of the disclosure statement," 15 U.S.C. § 1641(a), and Plaintiff has not indicated that this was the case. A claim under ECOA can be brought against

a creditor, including "any assignee of an original creditor who participates in the decision to extend, renew, or continue credit." 15 U.S.C. § 1691a(e). Plaintiff has not indicated any such As for Plaintiff's RESPA

participation on the part of Deutsche.

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claim, the Court cannot discern which provision of RESPA has allegedly been violated. Deutsche.5 The claims are therefore DISMISSED as to

V.

CONCLUSION For the reasons stated above, Defendants' Motion to Dismiss is

GRANTED IN PART and DENIED IN PART: 1. Plaintiff's first cause of action for fraud is DISMISSED WITHOUT PREJUDICE as to JPMorgan; Plaintiff may amend this claim against JPMorgan to focus only on the provision of loan services or JPMorgan's own conduct. 2. Plaintiff's second cause of action for misrepresentation is DISMISSED WITHOUT PREJUDICE as to JPMorgan; Plaintiff may amend this claim against JPMorgan to focus only on the provision of loan services or JPMorgan's own conduct. 3.
5

Plaintiff's third cause of action for breach of contract

These claims are the only basis for federal jurisdiction, and the Court will sua sponte remand this case to state court if Plaintiff does not replead them in her amended complaint. 17

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is undisturbed. 4. Plaintiff's fourth cause of action for promissory estoppel is undisturbed. 5. Plaintiff's fifth cause of action for breach of covenant of good faith and fair dealing is undisturbed. 6. Plaintiff's sixth cause of action for violation of foreclosure procedures is DISMISSED WITH PREJUDICE as to all Defendants, but without prejudice to Plaintiff pursuing this theory as a predicate for her claim under California's Unfair Competition Law. 7. Plaintiff's seventh cause of action for violation of California's Unfair Competition Law is undisturbed. 8. Plaintiff's eighth cause of action for unconscionability is DISMISSED WITHOUT PREJUDICE as to all Defendants. 9. Plaintiff's ninth cause of action for unjust enrichment is DISMISSED WITHOUT PREJUDICE as to Defendants Deutsche and JPMorgan. 10. Plaintiff's tenth cause of action for accounting is DISMISSED WITH PREJUDICE as to all Defendants. 11. Plaintiff's eleventh cause of action for quiet title is DISMISSED WITH PREJUDICE as to all Defendants. 12. Plaintiff's twelfth cause of action for declaratory relief is DISMISSED WITH PREJUDICE as to all defendants. 13. Plaintiff's thirteenth cause of action for injunctive relief is DISMISSED WITH PREJUDICE as to all Defendants. 14. Plaintiff's federal claims are DISMISSED WITH PREJUDICE as to JPMorgan, and DISMISSED WITHOUT PREJUDICE as to Deutsche.

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The Case Management Conference scheduled for June 16, 2010 is CONTINUED to August 13, 2010. The parties shall appear at 10:00

a.m. in Courtroom 1, on the 17th floor, U.S. Courthouse, 450 Golden Gate Avenue, San Francisco, CA 94102. A Joint Case Management

Statement must be filed at least seven (7) days prior to the Case Management Conference. Plaintiff Yvonne Zivanic shall submit an amended complaint within thirty (30) days from the date of this Order. Failure to do

so will result in dismissal of her case in its entirety.

United States District Court

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IT IS SO ORDERED.

Dated: June 9, 2010 UNITED STATES DISTRICT JUDGE

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