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

Filing 27

ORDER GRANTING DEFENDANTS MOTION TO DISMISS; VACATING HEARING. Granting 24 Motion to Dismiss. Signed by Judge Maxine M. Chesney. (mmclc2, COURT STAFF) (Filed on 6/2/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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NUNEZ, EMMANUEL & ARLEEN,

No. C 11-0081 MMC

For the Northern District of California

United States District Court

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Plaintiffs,
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ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS; VACATING
HEARING

v.
BANK OF AMERICA, N.A., et al.,
Defendants

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Before the Court is defendant Bank of America, N.A.’s (“Bank of America”) motion,

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filed May 3, 2011, to dismiss plaintiffs’ Second Amended Complaint (“SAC”). Plaintiffs

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Emmanuel Nunez and Arleen Nunez (collectively, “plaintiffs”) have filed opposition. Having

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read and considered the papers filed in support of and in opposition to the motion, the

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Court hereby VACATES the hearing scheduled for June 10, 2011 and rules as follows.

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By order filed March 22, 2011, the Court dismissed plaintiffs’ Amended Complaint on

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the grounds that the asserted claims arising from the origination of their mortgage with

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Bank of America in April 2006 were barred by the applicable statute of limitations, and that

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plaintiffs’ remaining claims were insufficiently supported by factual allegations. (See Order

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Granting Def.’s Mot. to Dismiss (“Order”).) By that same order, plaintiffs were afforded

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leave to amend to cure the deficiencies noted. (See id. at 5, 7.) The SAC, however, fails

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to cure the previous complaint’s deficiencies.

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First, with respect to all claims arising from the origination of the mortgage, plaintiffs’
new allegations are insufficient to plead a basis for equitable tolling of the statute of

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limitations.
In particular, plaintiffs now allege that their “native language is Tagalog” and that

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Bank of America “failed to provide an appropriate translator.” (See SAC ¶ 51.) Although

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said allegations are new to the complaint, plaintiffs had made the same assertions in their

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opposition to Bank of America’s prior motion to dismiss, and the Court, in its prior order of

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dismissal, had noted such circumstances, without more, were unavailing. (See Order at 4

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n.3 (citing Herrera v. Countryside KB Home Loans, No. 10-CV-0902-LHK, 2010 WL

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3516100, at *2-3 (N.D. Cal. 2010) (finding, although plaintiffs spoke Tagalog and were not

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native English-speakers, plaintiffs not entitled to tolling of statute of limitations in TILA

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action, where plaintiffs failed to plead date on which they discovered alleged violations or to

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allege facts showing how defendant’s nondisclosure prevented plaintiffs from discovering

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alleged violations)).)

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The SAC adds nothing to plaintiffs’ earlier assertion. Based on the allegations in the

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SAC, the facts underlying plaintiffs’ claims would have been apparent from the face of the

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loan documents, and plaintiffs plead no facts showing due diligence such as to warrant

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equitable tolling.1 See King v. State of Cal., 784 F.2d 910, 915 (9th Cir. 1986) (finding, in

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TILA action, equitable tolling available to “suspend the limitations period until the borrower

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discovers or had reasonable opportunity to discover the fraud or nondisclosures that form

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the basis of the TILA action”); Fox v. Ethicon Endo-Surgery, Inc., 35 Cal. 4th 797, 920-921

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(2005) (holding “a plaintiff whose complaint shows on its face that his claim would be

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barred without the benefit of the discovery rule must specifically plead facts to show (1) the

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time and manner of discovery and (2) the inability to have made earlier discovery despite

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reasonable diligence” (emphasis in original)).

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Second, to the extent plaintiffs’ claims are not based on the origination of the
mortgage, plaintiffs’ amendments likewise fail to cure the deficiencies noted in their prior

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In contrast to the complaint at issue in the case cited by plaintiffs, Galindo v.
Financo Fin., Inc., No. C 07-3991 WHA, 2008 WL 4452344, at *4 (N.D. Cal. Oct. 3, 2008),
plaintiffs do not allege they cannot read and the lender made oral representations
inconsistent with the written documents.
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pleading.
In particular, with respect to their fraud claim, plaintiffs’ revision of the basis of such

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cause of action, which, as now alleged, is Bank of America’s refusal to grant a loan

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modification in October 2010 (see SAC ¶ 63), is unavailing. Plaintiffs cannot rely on their

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conclusory allegation that Bank of America “intentional[ly] inflat[ed] [p]laintiffs’ expense[s]

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by $5,000 per month.” (See SAC ¶ 63); Fed. R. Civ. P. 9(b) (providing “party must state

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with particularity the circumstances constituting fraud”). Moreover, and more significantly,

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plaintiffs allege no action taken by them in reliance thereon, and, indeed, plaintiffs allege

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they “notified [d]efendants of the inflated expenses.” (See SAC ¶ 65); Engalla v.

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Permanente Medical Group, 15 Cal. 4th 951, 974 (1997) (holding, to state claim for fraud,

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plaintiff must allege (1) misrepresentation, (2) defendant’s knowledge of falsity, (3) intent to

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defraud, (4) justifiable reliance, and (5) damage).
Similarly unavailing is plaintiffs’ revision of the basis of their claim under California

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Civil Code § 2923.5, which, as now alleged, is Bank of America’s refusal to grant a loan

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modification. See Mabry v. Superior Ct., 185 Cal. App. 4th 208, 231 (Cal. App. Ct. 2010)

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(holding “there is no right . . . under [§ 2923.5] to a loan modification”).

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Plaintiffs’ remaining allegations, which do not differ materially from those found

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insufficient in the Amended Complaint, are, for the reasons stated in the Court’s prior order

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of dismissal, insufficient to plead the claims they are alleged to support.

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As the SAC represents plaintiffs’ third attempt to plead a viable claim, and as

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plaintiffs have come no closer to doing so, the Court finds further leave to amend would be

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futile.

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For the reasons stated above, Bank of America’s motion to dismiss plaintiffs’ Second
Amended Complaint is hereby GRANTED.
IT IS SO ORDERED.

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Dated: June 2, 2011
MAXINE M. CHESNEY
United States District Judge

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