Ivey v. JP Morgan Chase Bank N.A. et al

Filing 55

ORDER by Judge Haywood S. Gilliam, Jr. GRANTING ( 40 , 44 ) MOTION TO DISMISS SECOND AMENDED COMPLAINT. Amended Pleadings due by 1/6/2017. (ndrS, COURT STAFF) (Filed on 12/16/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DOUGLAS K. IVEY,

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Case No. 16-cv-00610-HSG

Plaintiff,
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ORDER GRANTING MOTION TO
DISMISS SECOND AMENDED
COMPLAINT

v.
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JP MORGAN CHASE BANK N.A., et al.,

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Re: Dkt. Nos. 40, 44

Defendants.

United States District Court
Northern District of California

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Pending before the Court is a motion to dismiss Plaintiff Douglas K. Ivey’s second

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amended complaint (“SAC”) brought by Defendant JP Morgan Chase, N.A. (“Chase”).1 Dkt. No.

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40. Having considered Defendants’ motion, Plaintiff’s opposition, and all related papers, the

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Court finds the matter appropriate for decision without oral argument. See Civil L.R. 7-1(b). For

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the reasons below, the Court GRANTS the motion to dismiss.

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I.

BACKGROUND
In this foreclosure action, Plaintiff seeks to prevent the trustee’s sale noticed against his

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property located at 3330 Paradise Drive, Tiburon, County of Marin, CA. Plaintiff asserts four

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claims under California state law: (1) violation of California’s Homeowners’ Bill of Rights, Cal.

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Civ. Code § 2920 et seq., (“HBOR”) (against Chase and Quality); (2) negligence (against Chase);

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(3) intentional infliction of emotional distress (“IIED”) (against Chase); and (4) violation of

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California Business and Professions Code § 17200 et seq. (“UCL”) (against Chase).
On August 29, 2016, the Court dismissed Plaintiff’s first amended complaint (“FAC”) in

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Defendant Quality Loan Service Company has moved to join Chase’s motion to dismiss. Dkt.
No. 44. The Court GRANTS Quality’s motion.

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its entirety for failure to state a claim.2 Dkt. No. 37 (“Dismissal Order”). In the Dismissal Order,

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the Court held that (i) Plaintiff did not state an HBOR claim because he “defaulted on his first loan

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modification and fail[ed] to adequately allege a material change in financial circumstances that

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was documented and submitted to Chase under § 2923.6(g)”; (ii) Plaintiff’s negligence claim

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failed because “Chase owed Plaintiff no duty of care to timely process his loan modification

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application”; (iii) Plaintiff’s conclusory allegation that Chase “baited” him into applying for a loan

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modification was “insufficient to plausibly suggest that Chase engaged in the ‘extreme and

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outrageous conduct’ necessary to sustain his IIED claim at the pleading stage”; and (iv) Plaintiff

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“failed to adequately allege any unfair, unlawful, or fraudulent conduct by Chase” to sustain his

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UCL claim. Id.
Following the Dismissal Order, Plaintiff filed his SAC on September 19, 2016. Dkt. No.

United States District Court
Northern District of California

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39.

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II.

DISCUSSION
Defendants move to dismiss the SAC for five main reasons: (1) Plaintiff fails to show that

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he submitted a complete loan modification application to Chase as required for his first claim

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under the HBOR; (2) Plaintiff does not adequately plead that he documented and submitted a

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material change in financial circumstances as required under § 2923.6(g) of the HBOR; (3)

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Plaintiff fails to allege a duty of care or damages to sustain his negligence claim; (4) Plaintiff does

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not allege that Chase engaged in “extreme and outrageous conduct” or that Plaintiff sustained

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severe injury or emotional distress to support his IIED claim; and (5) Plaintiff lacks standing to

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assert a UCL claim and does not allege any unlawful, unfair, or fraudulent conduct.3

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A.

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The motion to dismiss Plaintiff’s first claim for relief under the HBOR is GRANTED.

The HBOR (Claim One)

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The Court discussed the factual background in detail in the Dismissal Order, and incorporates the
unchanged facts and the legal analysis from the Dismissal Order here. In this order, the Court
only discusses the facts as necessary to address the new issues raised in the SAC and the renewed
motion to dismiss.
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On October 4, 2016, Chase filed a request for judicial notice in support of its motion. Dkt. No.
41. Because the allegations in the SAC are sufficient for the purpose of ruling on the motion, the
Court DENIES AS MOOT Defendant’s request for judicial notice.
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Defendants move to dismiss Plaintiff’s HBOR claim because (i) Plaintiff’s complaint fails to show

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he submitted a complete loan modification application to Chase and (ii) Plaintiff does not

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sufficiently plead that he documented and submitted a material change in financial circumstances

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to Chase as required under § 2923.6(g) of the HBOR.

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First, Defendants argue that Plaintiff’s HBOR claim should be dismissed because Plaintiff

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must not only plead that he submitted a complete loan modification application to Chase, but also

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provide “factual support to substantiate” his claim that he submitted a complete application. See

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Dkt. No. 40 at 5-6. However, Defendants’ only cited authority for this proposition comes from the

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Central District of California, see id., and this Court declines to impose a heightened pleading
burden on Plaintiff based on non-binding authority from outside of this jurisdiction. Accordingly,

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United States District Court
Northern District of California

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the Court holds that Plaintiff’s SAC sufficiently alleges that he submitted “a complete loan

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modification package to Chase in the form of and with all the documents required by Chase” to

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sustain his HBOR claim at the pleading stage.

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Next, Defendants contend that Plaintiff fails to adequately allege that he documented and

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submitted a material change in financial circumstances to Chase. See id. at 7-9. As the Court held

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in its Dismissal Order, § 2923.6(g) provides that even if a borrower accepts and then defaults on a

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prior modification, he may still be protected under the HBOR if he is able to allege a material

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change in financial circumstances that is documented and submitted to the mortgage servicer. Ivey

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v. JP Morgan Chase Bank, N.A., No. 16-CV-00610-HSG, 2016 WL 4502587, at *3 (N.D. Cal.

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Aug. 29, 2016); see also Ivey v. Chase Bank, Case No. 14-CV-02289-NC, 2015 WL 294371, at *3

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(N.D. Cal. Jan. 22, 2015); Dias v. JP Morgan Chase, N.A., Case No. 5:13-CV-05327-EJD, 2014

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WL 2890255, at *4 (N.D. Cal. June 25, 2014); Shaw v. Specialized Loan Servicing, LLC, Case No.

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CV 14-00783 MMM MRWX, 2014 WL 3362359, at *6 (C.D. Cal. July 9, 2014). In the SAC,

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Plaintiff adds allegations that

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[T]he 2014 application stated income of $23,000 monthly and
expenses of $19,558.83, and total assets of $3,020,000 and
additional living expenses of $3,975 monthly. The September 2013
application stated $25,000 monthly income, $15,413.12 monthly
expenses, [and] assets of $4,005,000. The changes between the two
constitute “material changes.”
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SAC ¶ 23. However, Plaintiff’s additional allegations still fall short of the HBOR’s clear

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requirement that a plaintiff allege that his material change in financial circumstances was

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“documented . . . and submitted to the mortgage servicer.” See Cal. Civ. Code § 2923.6(g)

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(emphasis added). Nothing in Plaintiff’s SAC can be read to plausibly indicate that Plaintiff

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submitted documentation of his alleged changes in income and monthly expenses to Chase.

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Accordingly, the Court GRANTS the motion to dismiss Plaintiff’s first claim for relief under the

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HBOR.

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B.

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The motion to dismiss Plaintiff’s second claim for negligence is GRANTED. As the Court

Negligence (Claim Two)

found in its Dismissal Order, the Ninth Circuit has unambiguously held that application of the

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United States District Court
Northern District of California

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Biakanja factors leads to the conclusion that lenders do not owe borrowers a duty of care to

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process loan modification applications within a particular time frame. Ivey, 2016 WL 4502587, at

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*5 (N.D. Cal. Aug. 29, 2016) (citing Anderson v. Deutsche Bank Nat. Trust Co. Americas, Case

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No. 14–55822, 2016 WL 2343248, at *1 (9th Cir. May 4, 2016)).4 Thus, Plaintiff cannot state a

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negligence claim premised solely upon Chase’s delay in processing his loan modification

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application.
Plaintiff’s negligence claim is not salvaged by the additional conclusory allegations that

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Defendants “encouraged” him to submit a loan modification application and “represent[ed] to him

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that consistent with the timing and the processing of the prior written loan modification that the

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2014 application would be acted upon with[in] a short time period not to exceed a few months.”

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See SAC ¶ 32. In order to sufficiently distinguish this case from Anderson, Plaintiff must plead

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non-conclusory allegations to plausibly support a finding that Chase made explicit promises to

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him or affirmatively discouraged him from seeking other remedies, as in other cases in which

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courts have found dual tracking. See e.g., Smith, 2016 WL 283521, at *1 (plaintiff was told to

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stop making payments to get a better interest rate on a loan modification); Cornejo v. Ocwen Loan

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Servicing, LLC, Case No.: 1:15-cv-00993-JLT, 2015 WL 9268690, at *3 (E.D. Cal. Dec. 21,

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As an unpublished Ninth Circuit decision, Anderson is considered only for its persuasive value.
See Fed. R. App. P. 32.1; CTA9 Rule 36-3.
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2015) (plaintiffs were told the foreclosure sale was postponed to allow for review of their

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application, then the lender foreclosed nonetheless).
The Court GRANTS the motion to dismiss Plaintiff’s negligence claim because Chase did

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not owe Plaintiff a duty of care to timely process his loan modification application and Plaintiff

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fails to plead non-conclusory allegations to distinguish this case from Anderson.

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C.

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The motion to dismiss Plaintiff’s fourth claim for IIED is GRANTED WITH PREJUDICE.

Intentional Infliction of Emotional Distress (Claim Three)

As the Court held in the Dismissal Order, Plaintiff’s allegations in his FAC were either entirely

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conclusory or insufficient to plead extreme and outrageous conduct as a matter of law. See Ivey,

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2016 WL 4502587, at *6 (citing Aguinaldo v. Ocwen Loan Servicing, LLC, Case No. 5:12-CV-

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United States District Court
Northern District of California

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01393-EJD, 2012 WL 3835080, at *7 (N.D. Cal. Sept. 4, 2012)). Plaintiff did not attempt to

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bolster his IIED claim with any additional allegations in his SAC, and accordingly, for the reasons

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articulated in the Dismissal Order, the Court GRANTS the motion to dismiss this claim WITH

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PREJUDICE. See Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009),

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as amended (Feb. 10, 2009) (“where the plaintiff has previously been granted leave to amend and

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has subsequently failed to add the requisite particularity to its claims, the district court’s discretion

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to deny leave to amend is particularly broad”).
California’s UCL (Claim Four)

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D.

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Finally, the Court GRANTS the motion to dismiss Plaintiff’s fifth claim under Cal.

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Business & Professions Code §17200. Plaintiff’s SAC has again failed to adequately allege any

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unfair, unlawful, or fraudulent conduct by Chase that caused the foreclosure. See Ivey, 2016 WL

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4502587, at *6.

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III.

CONCLUSION
For the foregoing reasons, the Court GRANTS Defendants’ motion to dismiss the SAC.

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Plaintiff’s IIED claim is DISMISSED WITH PREJUDICE, and the remainder of Plaintiff’s SAC

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is DISMISSED WITH LEAVE TO AMEND. To the extent Plaintiff is able to state a claim that

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comports with the requirements of Twombly and all other controlling legal standards, Plaintiff may

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file one final amended complaint within 21 days of the date of this Order.

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IT IS SO ORDERED.
Dated: December 16, 2016
______________________________________
HAYWOOD S. GILLIAM, JR.
United States District Judge

United States District Court
Northern District of California

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