Zacharias v. JP Morgan Chase Bank, N.A. et al
Filing
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Order by Hon. Samuel Conti granting in part and denying in part 40 Motion to Dismiss.(sclc1, COURT STAFF) (Filed on 8/29/2013)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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United States District Court
For the Northern District of California
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REYNA U. ZACHARIAS,
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Plaintiff,
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v.
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JP MORGAN CHASE BANK, N.A.,
BANK OF AMERICA, N.A.,
Defendants.
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Case No. 12-06525 SC
ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO
DISMISS AMENDED COMPLAINT
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I.
INTRODUCTION
Plaintiff Reyna U. Zacharias ("Plaintiff") brings this action
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against JP Morgan Chase Bank, N.A. ("Chase") and Bank of America,
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N.A. ("BofA") (collectively, "Defendants") in connection with
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foreclosure proceedings commenced against her San Francisco home.
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Defendants now move to dismiss Plaintiff's first amended complaint
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("1AC").
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appropriate for resolution without oral argument per Civil Local
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Rule 7-1(b).
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set forth below, the motion to dismiss is GRANTED in part and
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DENIED in part.
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ECF No. 41 ("MTD").
The Motion is fully briefed and
ECF Nos. 45 ("Opp'n"), 48 ("Reply").
For the reasons
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II.
BACKGROUND
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In April 2007, Plaintiff obtained a loan from Washington
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Mutual Bank, F.A. ("WaMu"), secured by a deed of trust (the "DOT")
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encumbering her San Francisco home.
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No. 42 (Request for Judicial Notice ("RJN")) Ex. 1 ("DOT").1
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DOT identifies WaMu as the beneficiary and indicates that WaMu lent
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Plaintiff $947,500.
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Reconveyance Company ("CRC") as the trustee.
ECF No. 31 ("1AC") ¶ 9; ECF
The
The DOT also identifies California
The federal government later closed WaMu and appointed the
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United States District Court
For the Northern District of California
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Federal Deposit Insurance Corporation ("FDIC") as the bank's
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receiver.
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2008, Chase acquired certain assets and liabilities of WaMu through
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an asset purchase agreement with the FDIC.
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2009, an "Assignment of Deed of Trust" was recorded with the San
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Francisco Assessor-Recorder.
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Assignment").
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interest to WaMu, assigned its interest in the DOT to BofA.
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Assignment.
See RJN Ex. 2 ("Purchase Agreement").
Id.
On September 25,
On September 21,
1AC ¶ 10; RJN Ex. 3 ("DOT
The document states that Chase, as successor in
DOT
A notice of default was also recorded on September 21, 2009,
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indicating that Plaintiff was $13,873.88 in arrears on her loan
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Plaintiff's objections to Defendants' RJN, ECF No. 46, are
OVERRULED, and the Court takes judicial notice of the DOT and the
other publicly filed documents attached to the RJN, but not the
truth of the matters asserted by those documents. Pursuant to
Federal Rule of Evidence 201, the Court may take judicial notice of
"a fact that is not subject to reasonable dispute" because, among
other things, it "can be accurately and readily determined from
sources whose accuracy cannot reasonably be questioned."
Accordingly, the Court "may properly take notice of public facts
and public documents." Cactus Corner, LLC v. U.S. Dept. of Agric.,
346 F. Supp. 2d 1075, 1098 (E.D. Cal. 2004). Additionally,
Plaintiff references many of the documents attached to the RJN in
her complaint and, under the "incorporation by reference doctrine,"
a court may properly consider such documents. See Knievel v. ESPN,
393 F.3d 1068, 1076 (9th Cir. 2005).
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payments.
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recorded, the first on December 23, 2009, and the second on
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November 5, 2012.
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a trustee's sale was scheduled for November 26, 2012, and the
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unpaid balance and other charges on Plaintiff's loan totaled
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$1,082,141.68.
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occurred.
Two notices of trustee's sale were later
RJN Exs. 5, 6.
According to the second notice,
It is unclear whether the trustee's sale has yet
On November 19, 2012, Plaintiff filed the instant action in
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RJN Ex. 4.
California Superior Court and the case was subsequently removed on
United States District Court
For the Northern District of California
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diversity and federal question grounds.
ECF No. 1 Ex. 1
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("Compl.").
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of title, (2) wrongful foreclosure, and (3) violation of the RICO
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statute.
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to dismiss, which the Court granted on February 13, 2013.
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29.
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Court granted Plaintiff leave to amend her claims for slander of
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title and wrongful foreclosure.
Plaintiff asserted three causes of action: (1) slander
Compl. ¶¶ 15-57.
Defendants subsequently filed a motion
ECF No.
Plaintiffs' RICO claim was dismissed with prejudice, but the
Plaintiff subsequently filed her 1AC, alleging causes of
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action for: (1) slander of title; (2) wrongful foreclosure; (3)
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violation of California Civil Code section 2923.5; (4) violation of
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the Truth in Lending Act ("TILA"), 15 U.S.C. § 1601; and (5)
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violation of the California Unfair Competition Law ("UCL"), Cal.
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Bus. & Prof. Code § 17200.2
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The Court did not grant Plaintiff leave to amend her pleadings to
assert new causes of action for violations of section 2923.5, TILA,
and the UCL.
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III. LEGAL STANDARD
A motion to dismiss under Federal Rule of Civil Procedure
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12(b)(6) "tests the legal sufficiency of a claim."
Navarro v.
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Block, 250 F.3d 729, 732 (9th Cir. 2001).
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on the lack of a cognizable legal theory or the absence of
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sufficient facts alleged under a cognizable legal theory."
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Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.
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1988).
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should assume their veracity and then determine whether they
"Dismissal can be based
"When there are well-pleaded factual allegations, a court
United States District Court
For the Northern District of California
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plausibly give rise to an entitlement to relief."
Ashcroft v.
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Iqbal, 556 U.S. 662, 664 (2009).
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must accept as true all of the allegations contained in a complaint
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is inapplicable to legal conclusions.
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elements of a cause of action, supported by mere conclusory
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statements, do not suffice."
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v. Twombly, 550 U.S. 544, 555 (2007)).
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complaint must be both "sufficiently detailed to give fair notice
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to the opposing party of the nature of the claim so that the party
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may effectively defend against it" and "sufficiently plausible"
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such that "it is not unfair to require the opposing party to be
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subjected to the expense of discovery."
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1191, 1204 (9th Cir. 2011).
However, "the tenet that a court
Threadbare recitals of the
Id. at 663. (citing Bell Atl. Corp.
The allegations made in a
Starr v. Baca, 633 F.3d
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IV.
DISCUSSION
Defendants' motion asserts a number of arguments in favor of
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dismissing each of Plaintiff's claims.
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an opposition brief, the Court can only assume that Plaintiff's
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counsel did not draft the brief with Defendants' motion in mind.
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Though Plaintiff has filed
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Large segments of the opposition brief are identical to the
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opposition brief Plaintiff filed in response to Defendants'
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previous motion to dismiss.
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the arguments asserted by Defendants, while responding to other
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arguments that Defendants do not make.
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as to defend claims that were never asserted in Plaintiff's
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pleading and to characterize Defendants' Rule 12(b)(6) motion to
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dismiss as a state law demurrer.
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indicate that Plaintiff's counsel even reviewed Defendants' moving
United States District Court
For the Northern District of California
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Moreover, Plaintiff ignores most of
The brief also goes so far
In short, there is little to
papers before filing their opposition.
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In light of Plaintiff's failure to file a coherent opposition,
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the Court is inclined to agree with most of the arguments raised in
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Defendants' motion.
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arguments raised in the motion to dismiss and finds as follows:
The Court assumes familiarity with the
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Plaintiff's claims are DISMISSED WITH PREJUDICE to the extent
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that they are premised on the assertion that securitization of
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the loan rendered the DOT unenforceable.
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Plaintiff's claim for slander of title is time barred to the
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extent it is predicated on the DOT, the assignment of the DOT,
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and the notice of default.
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that Plaintiff may show why the statute of limitation should
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be tolled.
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The Court grants leave to amend so
Plaintiff's claim for slander of title is also DISMISSED to
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the extent that it is predicated on the recordation of the
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first and second notices of trustee's sale.
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granted leave to amend to allege facts showing (1) Margaret
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Flynn is a robo-signer or otherwise lacked authority to sign
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Plaintiff is
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the notice of default, or (2) that CRC is not the rightful
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trustee on the DOT.
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Plaintiff's claim for wrongful foreclosure is DISMISSED
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because Plaintiff has failed to allege a foreclosure sale.
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The Court grants Plaintiff leave to amend so that she may
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allege whether and when the foreclosure sale occurred.
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•
Defendants' motion to dismiss Plaintiff's claim for violation
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of California Civil Code section 2923.5 is DENIED.
Defendants
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are correct that a number of judges in this district have held
See Capodiece v.
United States District Court
For the Northern District of California
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that section 2923.5 is preempted by HOLA.
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Wells Fargo Bank, No. C 13-00032 WHA, 2013 U.S. Dist. LEXIS
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67174 (N.D. Cal. May 9, 2013).
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held otherwise, and the Ninth Circuit has yet to rule on this
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issue.
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920 SC, 2011 WL 2314151, at *4 n.8 (N.D. Cal. June 10, 2011);
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Pey v. Wachovia Mortgage Corp., 11-2922 SC, 2011 WL 5573894,
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at *8-9 (N.D. Cal. Nov. 15, 2011).
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However, the undersigned has
See Shaterian v. Wells Fargo Bank, Nat. Ass'n, C-11-
Plaintiff's claim for violation of TILA is DISMISSED as time
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barred and DISMISSED WITH PREJUDICE to the extent that
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Plaintiff seeks rescission of her loan.
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Plaintiff seeks only damages, the Court grants Plaintiff leave
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to amend to allege why the statute of limitations should be
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tolled.
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of TILA violations does not support equitable tolling of
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TILA's statutes of limitations."
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5:13-CV-00467-EJD, 2013 WL 3788827, at *3 (N.D. Cal. July 17,
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2013).
To the extent that
The Court advises Plaintiff that "the mere existence
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Quach v. Bank of Am., N.A.,
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Plaintiff's UCL claim is DISMISSED with leave to amend.
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Plaintiff's amended complaint should specifically identify the
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prong or prongs of the UCL under which Plaintiff is suing.
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the extent that Plaintiff alleges a predicate violation of
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California Civil Code Section 2924, Plaintiff must
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specifically identify what provisions of the statute were
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violated.
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unfairness prong of the UCL, her pleading shall specifically
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identify how her claim is tethered to specific constitutional,
To
To the extent that Plaintiff is suing under the
See Bardin v.
United States District Court
For the Northern District of California
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statutory, or regulatory provisions.
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Daimlerchrysler Corp., 136 Cal. App. 4th 1255, 1260-61 (Cal.
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Ct. App. 2006).
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Plaintiff has suffered a cognizable injury under the UCL.
The amended complaint shall also identify how
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V.
CONCLUSION
As set forth above, JP Morgan Chase Bank, N.A. and Bank of
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America, N.A.'s motion to dismiss Plaintiff Reyna U. Zacharias's
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complaint is GRANTED in part and DENIED in part.
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claims for slander of title, wrongful foreclosure, violation of
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TILA, and violation of the UCL are DISMISSED with leave to amend.
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Plaintiff's claim for violation of California Civil Code section
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2923.5 remains undisturbed.
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pleading within thirty (30) days of the signature date of this
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Order and that pleading shall comply with the guidance set forth
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above.
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defects identified above may result in dismissal with prejudice of
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some or all of Plaintiff's causes of action.
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grant Plaintiff leave to amend to assert new causes of action.
Plaintiff's
Plaintiff shall file her amended
Failure to timely file an amended complaint or to cure the
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The Court does not
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Plaintiff shall comply with the requirements set forth in Federal
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Rule of Civil Procedure 15 prior to asserting any new causes of
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action.
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kind that Plaintiff submitted in connection with the instant motion
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to dismiss.
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counsel shall directly respond to the arguments raised by opposing
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counsel.
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their client and, within ten (10) days of the signature date of
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this Order, shall file a declaration with the Court confirming that
United States District Court
For the Northern District of California
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The Court will not entertain any further briefing like the
Any future opposition briefs filed by Plaintiff's
Plaintiff's counsel shall share a copy of this Order with
they have complied with this instruction.
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IT IS SO ORDERED.
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Dated: August 29, 2013
UNITED STATES DISTRICT JUDGE
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