Cabrera et al v. Countrywide Home Loans Inc. et al

Filing 40

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS 33 (Illston, Susan) (Filed on 10/30/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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MANUEL CABRERA and MILA CABRERA,
individually and on behalf of the general public,

United States District Court
For the Northern District of California

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

Plaintiffs,

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No. C 11-4869 SI

v.
COUNTRYWIDE FINANCIAL, et al.
Defendants.

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Currently before the Court is a motion to dismiss plaintiffs’ First Amended Complaint, filed on

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behalf of “defendants named as ‘Countrywide Financial,’ ‘Countrywide Home Loans Inc., dba

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America’s Wholesale Lender,’ ‘Countrywide Bank FSB,’ and ‘Bank of America Inc.’(collectively

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‘Defendants’).” Pursuant to Civil Local Rule 7-1(b), the Court finds this matter suitable for disposition

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without oral argument, and therefore VACATES the hearing currently scheduled for November 2, 2012.

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Having considered the parties’ papers, and for good cause appearing, the motion is GRANTED IN

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PART and DENIED IN PART, for the reasons set forth below.

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BACKGROUND

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In July 2007, Manuel Cabrera received a home mortgage loan from Countrywide Home Loans,

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Inc., dba America’s Wholesale Lender (“Countrywide”). First Amended Complaint (“FAC”) ¶ 23, Exh.

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C. The Adjustable Rate Note was issued on July 13 for $1,875,000 at an initial interest rate of 5.875%.

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Id. at Exh. C. The interest rate would become adjustable starting in July 2008 to a rate based on the

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LIBOR Index, but the rate was never to exceed 11.875%. Id. On July 17, 2007, Manuel Cabrera

executed a Construction Note Addendum, which “amends and supplants” the Adjustable Rate Note.

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Id. The Construction Note Addendum states that “[t]he initial Interest Rate is 11.250%.” Id. The

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interest rate could change each month in a formula tied to the highest Prime Rate, but it could not exceed

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11.875%. Id. The Cabreras state that they relied on “the representation that the initial interest rate of

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the loan was 5.875% . . . but in actuality the initial rate was 11.235%.” Id. The originator of the loan,

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Diablo Funding Inc., received a bounty for the loan that was not disclosed to the Cabreras. Id. at ¶ 33.

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Two years later, Manuel Cabrera and Mila Cabrera,1 his wife, executed an Adjustable Rate

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Mortgage (“ARM”) with Countrywide that modified their original loan. Id. at ¶ 21, Exh. A. The ARM

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stated, “The current Note Rate of 5.375% will continue through June 30, 2009* in accordance with the

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United States District Court
For the Northern District of California

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Addendum to Note, executed July 13, 2009. . . . *Subject to the terms of the Construction Loan Note

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Addendum.” Id. (emphasis in original). The ARM was signed on June 26, 2009. Id. The Cabreras

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allege that “the loan modification represented that the original note term was 5.375% when in fact it

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exceeded 11% [and] representations contained in the loan modification concealed the true nature of the

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loan.” Id. They also allege that they “reasonably relied upon the representations of the 5.875% rate as

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being fixed until June 2008 as a significant factor in agreeing to the loan modification in 2009.” Id. at

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¶ 23.

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In the fall of 2009, the Cabreras obtained a “forensic loan audit.” Id. at ¶ 21. In November

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2009, the Cabreras obtained the services of eModify to write a letter informing Bank of America of its

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loan servicing violations. Id. at ¶ 22, Exh. B.

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On June 30, 2011, the home was foreclosed. Id. page 1. At the time of foreclosure, the Cabreras
had a loan modification pending. Id. The Cabreras are Hispanic. Id.

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The Cabreras also allege that Countrywide discriminated against Hispanic borrowers by giving

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them subprime loans when they actually qualified for prime loans. Id. at ¶ 99. However, the Cabreras

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do not allege that when they were given a subprime loan, they were qualified for a prime loan.

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On September 30, 2011, the Cabreras filed this action.

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Maria Cabrera is the name on the ARM, although Mila Cabrera is the name this action was
filed under.
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LEGAL STANDARD

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Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if it

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fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to dismiss,

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the plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.

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Corp. v. Twombly, 550 U.S. 544, 570 (2007). This “facial plausibility” standard requires the plaintiff

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to allege facts that add up to “more than a sheer possibility that a defendant has acted unlawfully.”

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Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). While courts do not require “heightened fact pleading

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of specifics,” a plaintiff must allege facts sufficient to “raise a right to relief above the speculative

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level.” Twombly, 550 U.S. at 544, 555.

United States District Court
For the Northern District of California

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In deciding whether the plaintiff has stated a claim upon which relief can be granted, the court

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must assume that the plaintiff’s allegations are true and must draw all reasonable inferences in the

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plaintiff’s favor. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, the

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court is not required to accept as true “allegations that are merely conclusory, unwarranted deductions

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of fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008).

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DISCUSSION
1.

Civil RICO Claims

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Plaintiffs assert three claims under § 1962(c) of the Racketeering Influenced and Corrupt

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Organizations (“RICO”) Act. Under this provision, it is “unlawful for any person employed by or

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associated with any enterprise engaged in, or the activities of which affect, interstate or foreign

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commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs

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through a pattern of racketeering activity or collection of unlawful debt.” 18 U.S.C. § 1962(c). In order

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to state a valid RICO claim under § 1962(c), a plaintiff must allege “(1) conduct, (2) of an enterprise,

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(3) through a pattern, (4) of racketeering activity.” Jarvis v. Regan, 833 F.2d 149, 151-52 (9th Cir.

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1987) (citations omitted). “Racketeering activity” is any act indictable under several provisions of Title

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18 of the United States Code. “In alleging fraud or mistake, a party must state with particularity the

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circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). The Ninth Circuit has interpreted

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this rule to require pleadings to specify “the time, place, and nature of the alleged fraudulent activities.”
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Moore v. Kayport Package Exp., Inc., 885 F.2d 531, 540 (9th Cir. 1989). “Rule 9(b) demands that the

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circumstances constituting the alleged fraud be specific enough to give defendants notice of the

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particular misconduct . . . so that they can defend against the charge and not just deny that they have

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done anything wrong.” Sanford v. MemberWorks, Inc., 625 F.3d 550, 558 (9th Cir. 2010) (quoting

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Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir.2009)).

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Plaintiffs’ first three causes of action allege a RICO violation, a conspiracy to violate RICO, and

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aiding and abetting a RICO violation, all stemming from defendants’ allegedly fraudulent loan practices.

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Defendants argue that plaintiffs’ RICO claims are barred by the statute of limitations. They also argue

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that plaintiffs have failed to and cannot allege facts sufficient to establish (1) the predicate acts of mail

United States District Court
For the Northern District of California

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and wire fraud, and (2) that there has been a pattern of racketeering activity.

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A.

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The statute of limitations for a civil RICO action is four years. Agency Holding Corp. v.

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Malley-Duff & Associates, Inc., 483 U.S. 143, 156 (1987). This limitations period “begins to run when

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a plaintiff knows or should know of the injury which is the basis for the action.” Living Designs, Inc.

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v. E.I. Dupont de Nemours & Co., 431 F.3d 353, 365 (9th Cir. 2005). A plaintiff has constructive

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knowledge of a defendant’s fraud when “it had enough information to warrant an investigation which,

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if reasonably diligent, would have led to discovery of the fraud.” Pincay v. Andrews, 238 F.3d 1106,

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1110 (9th Cir. 2001).

Statute of Limitations

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The Construction Note Addendum, which changed the initial interest rate from 5.9% to 11.3%,

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was signed on July 17, 2007. This action was filed more than four years later on September 30, 2011.

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Defendants argue, therefore, that the RICO claims are barred by the statute of limitations.

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Plaintiffs make three arguments in opposition. First, they argue that the operative contract for

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determining when the statute of limitations begins to run is not the original loan, but the ARM loan

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modification, which occurred two years later. They argue that because the ARM loan modification

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“represented that the original note term was 5.375%,” it perpetuated the fraud of the original loan.

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However, all of plaintiffs’ causes of action stem from the original loan, and therefor the statute of

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limitations began to run in July 2007. Furthermore, the plain terms of the contract state that the initial
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interest rate was “[s]ubject to the terms of the Construction Loan Note Addendum,” which belies the

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claim that the ARM perpetuated the fraud of the first mortgage.

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Second, plaintiffs argue for equitable tolling under the doctrine of fraudulent concealment,

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because plaintiffs could not have discovered the 11.3% interest rate until 2009 when they conducted a

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forensic loan audit. However, the plain terms of the contract state that “[t]he initial Interest Rate is

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11.250%.” Although plaintiffs state that they did not learn the true interest rate until the loan audit, a

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reasonably diligent investigation of the loan documents would have revealed the initial interest rate of

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11.25%.
Third, plaintiffs in their opposition aver facts concerning an attorney’s failure to provide

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United States District Court
For the Northern District of California

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competent legal services, urging this failure as a further ground for equitable tolling. However, these

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facts were not alleged in the FAC, and so the Court cannot consider them in a 12(b)(6) motion. Thus,

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based on the facts alleged in the FAC, the Court finds that the RICO claims are barred by the statute of

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limitations.

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B.

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Even if the RICO claims were not time-barred, the Court finds that there has been insufficient

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pleading to allege the predicate acts required for a RICO claim. In the FAC, plaintiffs argue that the

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predicate acts for the RICO violation were mail and wire fraud, in violation of 18 U.S.C. § 1341. FAC

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¶ 78. Specifically, they allege that defendants “placed in post offices and/or in authorized repositories

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matter and things to be sent or delivered by the Postal Service . . . including but not limited to

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promotional materials, applications, agreements, manuals, and correspondence.” Id. at ¶ 80. They also

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allege that defendants “transmitted and received by wire matter and things, including but not limited to

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promotional materials, applications, agreements, manuals, and correspondence, and made or caused to

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be made false statements over the telephone, electronic mail, and internet.” Id. at ¶ 81.

Predicate Acts of Mail and Wire Fraud

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Plaintiffs fail to allege the specific content of the “matter and things” transferred through the

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mail and over wires, who made and received the matter and things, and when the transmissions

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occurred. Rule 9(b) requires particularity that plaintiffs have failed to provide. They have not specified

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“the time, place, and nature of the alleged fraudulent activities.” Moore, 885 F.2d at 540.
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C.

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At minimum, there must be at least two acts of racketeering activity within ten years of one

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another to constitute a “pattern.” 18 U.S.C. § 1961(5). However, a “‘pattern’ of racketeering activity

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also requires proof that the racketeering predicates are related and ‘that they amount to or pose a threat

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of continued criminal activity.’” Turner v. Cook, 362 F.3d 1219, 1229 (9th Cir. 2004) (quoting H.J. Inc.

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v. Northwestern Bell Tel. Co., 492 U.S. 229, 239(1989)).

Pattern of Racketeering Activity

Here, plaintiffs allege that the pattern of deceit is evident from the first loan that hid the true

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initial interest rate, from the undisclosed payment to Diablo Funding Inc., and from the ARM that

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continued to misrepresent the true initial interest rate. Opposition 13. However, the initial interest rate

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United States District Court
For the Northern District of California

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of the loan is apparent from the clear terms of the Construction Note Addendum, and that rate is also

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clearly referenced in the ARM modification. Additionally, plaintiffs have failed to allege that Diablo

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Funding Inc. had a duty to disclose their payment to the Cabreras, or that they could not have discovered

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this payment with reasonable diligence. Furthermore, plaintiffs fail to allege facts that would show that

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the interest rate “misrepresentation” poses a threat of continued criminal activity.

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Therefore, the Court GRANTS WITH LEAVE TO AMEND defendants’ motion to dismiss
plaintiffs’ RICO claims.

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2.

ECOA Claim

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Plaintiffs’ fifth cause of action alleges that defendants violated the Equal Credit Opportunity Act

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(“ECOA”). ECOA makes it unlawful “for any creditor to discriminate against any applicant, with

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respect to any aspect of a credit transaction on the basis of race, color, religion, national origin, sex or

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marital status, or age (provided the applicant has the capacity to contract).” 15 U.S.C. § 1691(a).

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Plaintiffs allege that they are Hispanic, and that non-Hispanic white borrowers similarly situated would

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have received a more favorable loan. FAC ¶¶ 127-29. Defendants moved to dismiss this claim because

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it is barred by the statute of limitations and because plaintiffs fail to state a claim.

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A.

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ECOA provides a two-year statute of limitations from the date of the violation. 15 U.S.C.

Statute of Limitations

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§ 1691e(f) (2007).2 But ECOA allows for the applicant to have an additional year to file a claim after

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the commencement of an enforcement proceeding by either an agency or the Attorney General, if the

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enforcement proceeding is commenced within two years of the date of the violation. Id.

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Defendants argue that plaintiffs’ ECOA claim is barred by the statute of limitations because it

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was brought more than two years after the initial loan was signed in July 2007. Even if the exception

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applied, that would still at maximum create a three-year statute of limitations, which is exceeded in this

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case.
Plaintiffs argue that the ECOA claim is not barred by the statute of limitations because

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Countrywide agreed to a suspension of the statute of limitations for ECOA violations in an agreement

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United States District Court
For the Northern District of California

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with the United States. Oppo. 12. They argue that this agreement allows them to make an ECOA claim

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because they filed their suit within one year of the Department of Justice enforcement action. However,

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plaintiffs fail to allege these facts in the FAC, and only assert them in their Opposition. Thus, based on

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the facts of the FAC, the Court finds that the ECOA claim is barred by the statute of limitations.

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B.

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Even if the ECOA claim were not barred by the statute of limitations, defendants argue that

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plaintiffs fail to state a claim under ECOA. Plaintiffs argue that a similarly situated white borrower

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would have received a more favorable loan than they did, because they are Hispanic. To support the

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allegation, they offer statistical evidence showing that Hispanics were given worse loans than white

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borrowers with the same borrower risk, and that Hispanic borrowers, otherwise qualified for prime

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loans, were steered into subprime loans at rates between 2.6 and 3.5 times higher than similarly situated

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white borrowers. FAC ¶¶ 98-99. However, the Cabreras fail to allege that they themselves were

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qualified for a prime loan or better loan terms than the ones that they received. Thus, plaintiffs fail to

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state a claim that defendants gave them a subprime loan because they are Hispanic in violation of

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ECOA.

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Failure to State a Claim

Therefore, the Court GRANTS WITH LEAVE TO AMEND defendants’ motion to dismiss

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The statute was revised in 2010, the 2007 provisions are operative in this case.
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plaintiffs’ ECOA claim.

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3.

California’s Unfair Competition Law Claim

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Plaintiffs’ fourth cause of action alleges that defendants violated California’s Unfair Competition

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Law (“UCL”), which prohibits any “unlawful, unfair, or fraudulent business act or practice.” Cal. Bus.

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& Prof. Code § 17200. Plaintiffs allege that defendants acted unlawfully by violating RICO, ECOA,

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and California Civil Code § 2923.5; they acted unfairly by foreclosing on a home with a pending loan

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modification; and they acted fraudulently by making “misleading representations to borrowers.” Oppo.

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¶¶ 120-26.

United States District Court
For the Northern District of California

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Defendants move to dismiss the UCL claim on the following grounds: (1) the UCL claim is

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barred by the statute of limitations; (2) the predicate unlawful act of violating RICO is flawed because

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plaintiffs failed to state a claim under RICO; (3) the predicate unlawful act of violating ECOA is flawed

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because plaintiffs failed to state a claim under ECOA, and ECOA bars pursuit of a separate state law

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remedy; (4) the predicate unlawful act of violating California Civil Code § 2923.5 is flawed because

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plaintiffs fail to state a claim; (5) public policy at the time of foreclosure did not prohibit a foreclosure

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with a pending modification; and (6) plaintiffs fail to plead with particularity any fraudulent or false

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statements.

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A.

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The statute of limitations for a Section 17200 claim is four years. Cal. Bus. & Prof. Code

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§ 17208. Defendants argue that the UCL claims based on the original loan, which was executed more

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than four years before this action was filed, are barred by the statute of limitations. Plaintiffs argue that

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under the equitable tolling doctrine, they did not and could not have discovered the violations until

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2009. The Court has already addressed and rejected this argument. See supra Section I.A.

Statute of Limitations

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Additionally, plaintiffs argue that the delayed discovery rule applies to UCL claims. The Ninth

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Circuit has previously held that the statute of limitations for UCL claims runs on the date of the violation

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and not the date of discovery. See In Karl Storz Endoscopy–Am., Inc. v. Surgical Tech., Inc., 285 F.3d

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848, 857 (9th Cir.2002). The California Court of Appeal subsequently disagreed in Broberg v.
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Guardian Life Ins. Co. of Am., 171 Cal. App. 4th 912, 920–21, 90 Cal. Rptr.3d 225, review denied

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(2009). But see Snapp & Assocs. Ins. Servs., Inc. v. Robertson, 96 Cal. App. 4th 884, 891 (Cal. Ct. App.

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2002) (delayed discovery rule does not apply to UCL causes of action). The California Supreme Court

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has not decided the issue.
Even assuming that the delayed discovery rule applies to UCL claims, plaintiffs fail to plead

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adequate facts to avail themselves of the delayed discovery rule. A plaintiff seeking to take advantage

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of the delayed discovery rule must “specifically plead facts to show (1) the time and manner of

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discovery and (2) the inability to have made earlier discovery despite reasonable diligence. The burden

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is on the plaintiff to show diligence, and conclusory allegations will not withstand demurrer.” E-Fab,

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United States District Court
For the Northern District of California

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Inc. v. Accountants, Inc. Services, 153 Cal. App. 4th 1308, 1319 (2007) (quoting McKelvey v. Boeing

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North American, Inc., 74 Cal. App. 4th 151, 160 (1999)). Here, the face of the Construction Loan Note

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Addendum states that the initial interest rate for the loan is 11.250%. Plaintiffs allege that they did not

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discover this interest rate until they had a forensic loan audit in the fall of 2009. However, plaintiffs fail

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to allege sufficient facts to show that they were unable to discover the interest rate despite reasonable

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due diligence. Thus, the UCL claims based on the alleged misrepresentation in the initial loan are

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barred by the statute of limitations.

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B.

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Plaintiffs allege that defendants violated the UCL by committing “unlawful” business practices

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through violations of RICO, ECOA, and California Civil Code § 2923.5. First, the RICO claim is based

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on the alleged misrepresentation in the initial loan, the undisclosed payment to Diablo Funding Inc., and

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the alleged continued misrepresentation of the initial loan on the ARM. As discussed supra, Part I, the

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RICO claim is barred by the statute of limitations and fails to adequately plead facts to support a claim.

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Second, the ECOA claim is based on defendants allegedly discriminated against the Cabreras

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by offering them a subprime loan because they are Hispanic. As discussed supra Section II, the ECOA

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claim is barred by the statute of limitations and plaintiffs have failed to plead specific facts alleging an

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ECOA violation. Additionally, ECOA bars pursuit of state law claims if the plaintiff also pursues relief

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under ECOA. 15 U.S.C. § 1691d(e).

“Unlawful” Business Practices

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Finally, plaintiffs allege that “defendants did not comply with Cal. Civ. Code § 2923.5’s due

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diligence requirement with respect to loan modification.” FAC ¶ 124. Section 2923.5 requires a

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mortgage lender to exert “due diligence” in attempting to contact the borrower before filing a notice of

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default. Cal. Civ. Code § 2923.5(g). Plaintiffs fail to allege any facts required to make a claim under

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§ 2923.5. They do not allege whether they were served a notice of default or how defendants failed to

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properly attempt to contact them. Moreover, § 2923.5 applies to default notices instead of loan

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modifications, as alleged in the FAC. Thus, plaintiffs have failed to plead a claim of “unlawful”

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business practices under the URL.

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United States District Court
For the Northern District of California

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C.

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An “unfair” business practice under the UCL is “one that either offends an established public

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policy or is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers.”

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McDonald v. Coldwell Banker, 543 F.3d 498, 506 (9th Cir. 2008). However, “the public policy which

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is a predicate to the action must be ‘tethered’ to specific constitutional, statutory or regulatory

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provisions.” Gregory v. Albertson’s, Inc., 104 Cal. App. 4th 845, 854 (2002).

“Unfair” Foreclosure

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Plaintiffs allege that defendants unfairly executed a foreclosure on their home when they had

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a loan modification application pending. FAC ¶ 126. They argue that this violates public policy, as

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reflected in the Homeowner Bill of Rights, which prohibits foreclosures while a modification is pending.

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Cal. Code Civ. Pro. § 2924.11. Defendants argue that because this law was only signed in 2012, it

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cannot be used to show that there was a public policy against this practice at the time of the Cabreras’

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home foreclosure in 2011. Plaintiffs argue that, although the public policy was not codified until 2012,

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it certainly existed in 2011 as part the general public policy against foreclosures that were occurring

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without giving homeowners adequate opportunities to correct their deficiencies. See, e.g., Cal. Civ.

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Code § 2923.5. Plaintiffs have sufficiently pled enough facts to make a claim of “unfair” business acts

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under § 17200 that is plausible on its face.

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D.

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Finally, plaintiffs allege that defendants engaged in “fraudulent” business acts through a

“Fraudulent” Mortgage Loan Scheme

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fraudulent mortgage loan scheme that misled the Cabreras and other borrowers into accepting loans that

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they could not afford. But plaintiffs fail to allege specific acts of fraud or misstatement that induced

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other homeowners into accepting loans they could not afford. Regarding their own mortgage, plaintiffs

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allege that defendants misled them because they did not know that the initial interest rate was 11.250%,

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and they were misled into believing that the initial interest rate was 5.875%. However, the 11.250%

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interest rate was on the face of the Construction Loan Addendum, and so plaintiffs cannot claim that

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they were defrauded by defendants. Additionally, the “fraudulent” loan claim cannot support a UCL

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violation because it is barred by the UCL statute of limitations.
Thus, although plaintiffs fail to allege adequate facts to show that there were “unlawful” or

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United States District Court
For the Northern District of California

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“fraudulent” business practices in violation of the UCL, they have alleged adequate facts to make a

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claim that defendants engaged in “unfair” business practices. Therefore, defendants’ motion to dismiss

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plaintiffs’ UCL claim is GRANTED WITH LEAVE TO AMEND as to “unlawful” and “fraudulent”

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business practice claims, it is DENIED as to the “unfair” business practices claim.

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4.

Standing of Plaintiff Mila Cabrera

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Defendants also move to dismiss Mila Cabrera as a plaintiff on the grounds that she lacks

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standing, because only Manuel Cabrera was a signatory to the initial mortgage. Plaintiffs assert that

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Mila Cabrera has standing because she has community property rights in the home, even though she is

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not a party to the mortgage contract. However, the Ninth Circuit does not allow community property

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rights to create standing when the spouse is not a signatory to the contract at issue. Bianchi v. Bank of

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Am., N.A., 2012 U.S. Dist. LEXIS 69260, at *5 (S.D. Cal. May 17, 2012) (holding that a wife did not

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have standing to sue for fraud when she did not sign the mortgage loan, because “‘the presumption

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under California law that property acquired during marriage is community property does not apply’ in

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circumstances ‘where a spouse acquires property in his name alone.’”) (citing In re Jacobson, 676 F.3d

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1193, 1201 (9th Cir. 2012)). Plaintiffs fail to cite any cases that support their position.

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Accordingly, defendants’ motion to dismiss plaintiff Mila Cabrera is GRANTED. As plaintiff

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has not argued that it can allege any facts to support Mila Cabrera’s standing, she is DISMISSED WITH

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PREJUDICE.
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5.

Dismissing Defendants

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In addition to the grounds for dismissal of the claims discussed above, defendants Countrywide

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Financial, Countrywide Bank, and Bank of America argue that they should be dismissed from the suit

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because the complaint makes no allegations against them. Plaintiffs failed to respond to this argument

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in their Opposition.

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Countrywide Bank, and Bank of America is GRANTED and they are DISMISSED WITHOUT

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PREJUDICE. As plaintiffs must allege facts to support a claim against these particular defendants in

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their next amended complaint.

Thus, defendants’ motion to dismiss defendants Countrywide Financial,

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United States District Court
For the Northern District of California

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CONCLUSION

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For the foregoing reasons, defendants’ motion to dismiss plaintiffs’ claims is GRANTED in part

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WITH LEAVE TO AMEND and DENIED in part. Plaintiff Mila Cabrera is DISMISSED WITH

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PREJUDICE. The Court DISMISSES WITHOUT PREJUDICE defendants Countrywide Financial,

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Countrywide Bank, and Bank of America. Any amended complaint must be filed no later than

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November 16, 2012. The Initial Case Management Conference is continued to January 18, 2013

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at 2:30 p.m.

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IT IS SO ORDERED.
Dated: October 30, 2012
SUSAN ILLSTON
United States District Judge

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