Barrientos v. CitiMortgage, Inc.

Filing 20

Order by Hon. Samuel Conti granting 11 Motion to Dismiss and Dismissing Case with Prejudice.(sclc2, COURT STAFF) (Filed on 11/26/2012) Modified on 11/26/2012 (sclc2, COURT STAFF).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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ANTONIO R. BARRIENTOS,

) Case No. 12-4653-SC
)
Plaintiff,
) ORDER DISMISSING CASE
)
v.
)
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CITIMORTGAGE, INC., and DOES 1-10, )
inclusive,
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)
Defendants.
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)

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Plaintiff Antonio R. Barrientos ("Plaintiff") filed a

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complaint in California Superior Court on July 26, 2012, which

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Defendant CitiMortgage, Inc. ("Defendant") timely removed to this

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Court.

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September 17, Defendant moved to dismiss Plaintiff's complaint.

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ECF No. 18 ("MTD").

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before or after the October 1 deadline to do so.

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Defendant filed a notice of nonopposition.

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November 8, the Court ordered Plaintiff to show cause why his

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action should not be dismissed for failure to prosecute.

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18 ("OSC").

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ECF No. 1 ("Not. of Removal") Ex. A ("Compl.").

On

Plaintiff failed to file a response, either
On October 3,

ECF No. 15.

On

ECF No.

On November 15, 2012, Plaintiff's counsel timely responded to

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the OSC.

ECF No. 19 ("OSC Response").

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had "a family emergency during the time to file a timely

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opposition."

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not move for leave to file a late response -- or communicate with

Id. at 2.

Counsel explains that he

He does not explain, however, why he did

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the Court at all -- in the five weeks following Defendant's filing

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of its notice of nonopposition.

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Plaintiff's counsel to the fact that he needed to take action to

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save his client's case.

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take over for him.

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makes his response to the OSC implausible.

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the failure to prosecute, counsel's response confirms it.

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That notice surely alerted

He needed at least to ask a colleague to

Counsel apparently did neither.

His inaction

Rather than excusing

Counsel's inaction might not, by itself, supply sufficient
reason to dismiss the case, even though the motion to dismiss

United States District Court

For the Northern District of California

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remains unopposed.

However, the Court observes that the motion to

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dismiss has merit.

Plaintiff's complaint sets forth six claims:

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(1) breach of contract, (2) fraud, (3) negligence, (4) intentional

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tort, (5) a request to either force a loan modification or dissolve

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Plaintiff's existing loan in light of California's passage of the

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Foreclosure Prevention Act, and (6) declaratory and injunctive

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relief.

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they seek to impose additional disclosure requirements on

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Defendant.

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EJD, 2012 WL 5350035, at *5-6 (N.D. Cal. Oct. 29, 2012).

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Additionally, the first claim (breach of contract) fails because it

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is barred by the statute of frauds.

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agreement to modify the terms of his loan.

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real estate loan modification contracts, like the initial loan

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contract, come within the statute of frauds.

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Am. Tr. Servicing Solutions, LLC, 11-CV-5754 YGR, 2012 WL 3945491,

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at *2-3 (N.D. Cal. Sept. 10, 2012).

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for breach of an implied loan modification contract fails as a

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matter of law.

The first four claims are preempted by HOLA to the extent

See, e.g., Gonzalez v. Wells Fargo Bank, 5:12-CV-03842

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Plaintiff alleges an "implied"
Compl. ¶ 12.

However,

See Meadows v. First

Therefore, Plaintiff's claim

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The second, third, and fourth claims are all premised on a

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single idea: that Defendant never intended to make good on its

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(purportedly contractual) implied promises to modify Plaintiff's

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loan and that its breach of those implied promises therefore was

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tortious.

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seek to transform run-of-the-mill contract actions into tort claims

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subject to punitive damages.

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Nanotechnologies Inc., --- F. Supp. 2d ---, 2012 WL 3010965, at

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*10-11 (N.D. Cal. 2012).

California's economic loss rule bars such claims, which

See JMP Sec. LLP v. Altair

As for Plaintiff's fifth claim, it merely

United States District Court

For the Northern District of California

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points out California's policy in favor of loan modification and

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urges the Court, in light of that policy, to exercise its equitable

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powers to force a loan modification or, alternatively, dissolve the

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current loan.

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the absence of a legal claim entitling Plaintiff to such relief.

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Lastly, Plaintiff's sixth "claim" for declaratory and injunctive

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relief is actually a prayer for such relief.

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in the absence of a viable legal claim upon which such relief could

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be granted.

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See Compl. ¶ 27.

The Court declines to do either in

Accordingly, it fails

Because each of Plaintiff's claims fails as a matter of law,

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the Court GRANTS Defendant's unopposed motion to dismiss and

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dismisses Plaintiff's complaint WITH PREJUDICE.

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IT IS SO ORDERED.

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Dated:

November 26, 2012
UNITED STATES DISTRICT JUDGE

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