Sokol et al v. JPMorgan Chase Bank, N.A. et al

Filing 33

ORDER by Judge Edward M. Chen Granting 7 Defendants' Motion to Dismiss with Leave to Amend. (emcsec, COURT STAFF) (Filed on 9/20/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JEFFREY SOKOL, et al.,

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Plaintiffs,
v.

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For the Northern District of California

United States District Court

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No. C-13-2153 EMC

JPMORGAN CHASE BANK, N.A., et al.,

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ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS WITH LEAVE
TO AMEND

Defendants.
___________________________________/

(Docket No. 7)
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The motion currently before the Court is Defendants’ motion to dismiss. For the reasons

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stated on the record, Defendants’ motion to dismiss is GRANTED with leave to amend. This order

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supplements the Court’s oral ruling.

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During the hearing, Plaintiffs clarified that they seek to base their Truth in Lending Act

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(“TILA”) on the September 6, 2011 assignment of Plaintiffs’ deed of trust from JPMorgan Chase to

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U.S. Bank (as trustee of Defendant WMALT Series 2007-OA3 Trust). Accordingly, Plaintiffs are

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advised that their amended complaint must account for the following.

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First, § 1641(g) requires a “new creditor” to provide the borrower notice “not later than 30

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days after the date on which a mortgage loan is sold or otherwise transferred or assigned.” 15

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U.S.C. § 1641(g) (emphasis added). Accordingly, any § 1641(g) claim necessarily requires that the

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September 6, 2011 assignment be valid. See Derusseau v. Bank of Am., N.A., No. 11-cv-1766 MMA

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(JMA), 2011 WL 5975821, at *5 (S.D. Cal. Nov. 29, 2011) (“Indeed, if Freddie Mac is a stranger to

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Plaintiff’s loan as she contends, then Freddie Mac has no obligation to comply with TILA’s notice

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requirements.”).

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Second, as this case was filed in April 2013, the September 6, 2011 assignment falls outside

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of TILA’s one year statute of limitations. Additionally, the September 6, 2011 assignment was

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recorded. A number of cases from around the country have rejected the application of tolling in the

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§ 1641(g) context where the underlying assignment was recorded. See, e.g., Brown v. U.S. Bank

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Nat’l Ass’n, No. C12-04587 HRL, 2013 WL 453813, at *2 (N.D. Cal. Aug. 23, 2013) (“Plaintiff

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concedes that the transfer was a matter of public record, and provides no reason, other than the

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alleged violation itself, to equitably toll the statute of limitations.”); Dela Cruz v. HSBC Bank USA,

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N.A., No. 12-cv-01283-MMD-PAL, 2013 WL 1759001, at *4 (D.Nev. Apr. 23, 2013) (“Here, there

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is no basis to equitably toll the statute of limitations . . . since the recording of the Assignment
provided Plaintiffs with constructive notice of the Assignment for the entire duration of the statute-

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For the Northern District of California

United States District Court

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of-limitations period.”). Plaintiffs therefore must allege in their amended complaint specific facts

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demonstrating that equitable tolling should apply in this case.

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Plaintiffs’ amended complaint shall be filed within 30 days. Defendants’ motion to dismiss

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amended complaint to be heard on December 19, 2013, at 1:30 p.m. The Case Management

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Conference (CMC) is rescheduled from October 10, 2013 to December 19, 2013 at 1:30 p.m. A

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joint CMC statement shall be filed by December 12, 2013.

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This order disposes of Docket No. 7.

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IT IS SO ORDERED.

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Dated: September 20, 2013

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_________________________
EDWARD M. CHEN
United States District Judge

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