Nicholas Alford v. J.P. Morgan Chase, N.A.

Filing 29

ORDER by Judge Haywood S. Gilliam, Jr. GRANTING IN PART AND DENYING IN PART 12 MOTION TO DISMISS. Amended Pleadings due by 1/12/2017; Case Management Statement due by 1/31/2017; Further Case Management Conference set for 2/7/2017 02:00 PM. (ndrS, COURT STAFF) (Filed on 12/22/2016)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
NICHOLAS ALFORD,

7

Case No. 16-cv-04723-HSG

Plaintiff,
8

ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO
DISMISS

v.
9
JP MORGAN CHASE BANK, N.A.,

10

Re: Dkt. No. 12

Defendant.

United States District Court
Northern District of California

11
Pending before the Court is a motion to dismiss Plaintiff Nicholas Alford’s complaint

12
13

brought by Defendant JP Morgan Chase Bank, N.A. (“Chase”). Dkt. No. 12. Having considered

14

Chase’s motion, Plaintiff’s opposition, and all related papers, the Court finds the matter

15

appropriate for decision without oral argument. See Civil L.R. 7-1(b). For the reasons below, the

16

Court GRANTS IN PART and DENIES IN PART the motion to dismiss. 1
Chase moves to dismiss the complaint for five main reasons: (1) each of Plaintiff’s claims

17
18

fails because Plaintiff does not allege actual damages; (2) Plaintiff cannot state a claim under the

19

Real Estate Settlement Procedures Act (“RESPA”) because Plaintiff’s allegations demonstrate that

20

Chase complied with the requirements of RESPA; (3) Plaintiff’s Rosenthal Fair Debt Collection

21

Practices Act (“RFDCPA”) fails because Chase is not a “debt collector” and Chase was not

22

attempting to collect on a “debt” under the RFDCPA2; (4) Plaintiff does not allege unlawful,

23
1

24
25
26
27
28

On October 11, 2016, Chase requested that the Court take judicial notice of the deed of trust on
Plaintiff’s property. Dkt. No. 13. The Court GRANTS Chase’s request because the deed of trust
is a matter of public record not subject to reasonable dispute. See Fed. R. Evid. 201.
2
Chase’s motion to dismiss incorrectly addresses Plaintiff’s second claim as a claim under the
Fair Debt Collection Practices Act (“FDCPA”) rather than under the RFDCPA. Compare Dkt.
No. 12 at 6-7 (addressing the FDCPA) with Dkt. No. 1 at 10-11 (asserting an RFDCPA claim).
However, in its reply, Chase’s arguments in support of dismissing Plaintiff’s RFDCPA claim are
substantively identical to the arguments Chase made in support of dismissing an FDCPA claim.
Compare Dkt. No. 12 at 6-7 with Dkt. No. 25 at 5-6. Accordingly, the Court construes Chase’s
arguments in its motion to dismiss as purported bases for dismissing Plaintiff RFDCPA claims.

1

fraudulent, or unfair conduct by Chase to supports his UCL claim; and (5) Plaintiff cannot state a

2

claim for intentional infliction of emotional distress (“IIED”) because he does allege the requisite

3

level of “outrageous” and intentional conduct required.

4

1. Chase’s motion to dismiss Plaintiff’s entire complaint for failure to allege actual

5

damages is DENIED. Plaintiff alleges that as a result of Chase’s improper attempts to collect over

6

$6,000 in delinquent taxes that Plaintiff did not owe and Chase’s subsequent credit to Plaintiff’s

7

escrow account, Plaintiff was forced “to pay an additional $6,000.00 in income taxes.” Dkt. No. 1

8

(“Compl.”) ¶ 45. Chase fails to cite any authority in support of its argument that such damages are

9

“de minimis and overly speculative in nature.” See Dkt. No. 12 at 5 n. 6. Accordingly, the Court

10

United States District Court
Northern District of California

11

finds that these allegations sufficiently allege actual damages for each of Plaintiff’s claims.
2. Chase’s motion to dismiss Plaintiff’s RESPA claim is DENIED. Even if Chase

12

eventually corrected the alleged error by crediting Plaintiff’s account, Plaintiff alleges that Chase

13

did not credit his escrow account until almost two years after he submitted his first notice of error.

14

See Compl. ¶¶ 12-15, 44. This length of time is far longer than the forty-five business days

15

RESPA permits loan servicers to correct any errors. See 12 C.F.R. § 1024.35(e) (1)(i)(A)).

16

Similarly, even if Chase researched Plaintiff’s complaint for months, the Court cannot determine

17

at this stage whether Chase conducted a “reasonable investigation” in response to Plaintiff’s notice

18

of error as alternatively required by RESPA. See 12 C.F.R. § 1024.35(e)(1)(i)(B). This is

19

especially true in light of Plaintiff’s allegations that Chase initially informed him that the

20

delinquent taxes were owed for the years 2007, 2008, and 2009, and later represented that the

21

delinquent taxes were for only the 2008 tax year. See Compl. ¶¶ 15, 21; see also Guccione v.

22

JPMorgan Chase Bank, N.A., No. 3:14-CV-04587 LB, 2015 WL 1968114, at *12 (N.D. Cal. May

23

1, 2015) (finding contradictory explanations sufficient to allege a violation of section

24

1024.35(e)(1)(i)(B)); Wilson v. Bank of Am., N.A., 48 F. Supp. 3d 787, 805 (E.D. Pa. 2014). The

25

Court finds that Plaintiff has adequately pled a RESPA violation at the pleading stage.

26

3. The motion to dismiss Plaintiff’s RFDCPA claim is DENIED. “As a number of

27

courts have recognized, the definition of ‘debt collector’ is broader under the [RFDCPA] than it is

28

under the FDCPA, as the latter excludes creditors collecting on their own debts.” Reyes v. Wells
2

1

Fargo Bank, N.A., No. C-10-01667 JCS, 2011 WL 30759, at *19 (N.D. Cal. Jan. 3, 2011)

2

(collecting cases). Plaintiff’s allegations plausibly support a finding that Chase was acting as a

3

“debt collector” under the RFDCPA, which broadly and unambiguously defines the term as “any

4

person who, in the ordinary course of business, regularly, on behalf of himself or herself or others,

5

engages in debt collection.” Cal. Civ.Code § 1788.2(c); see also Guccione, 2015 WL 1968114, at

6

*14 (N.D. Cal. May 1, 2015) (finding Chase a debt collector under the RFDCPA’s “broad

7

definitions”). Moreover, while courts in this district have found that “foreclosing on a property

8

pursuant to a deed of trust is not the collection of a debt within the meaning of the RFDCPA,”

9

Rosal v. First Fed. Bank of California, 671 F. Supp. 2d 1111, 1135 (N.D. Cal. 2009), at least one
court has distinguished between “improper billing and collection practices” and “foreclosure.”

11
United States District Court
Northern District of California

10

See Guccione, 2015 WL 1968114, at *13 (N.D. Cal. May 1, 2015); see also Reyes, 2011 WL

12

30759, at *19 (N.D. Cal. Jan. 3, 2011) (recognizing that “[w]here the claim arises out of debt

13

collection activities ‘beyond the scope of the ordinary foreclosure process,’ however, a remedy

14

may be available under the Rosenthal Act”). Here, Plaintiff alleges that Chase engaged in

15

“improper billing and collection practices” when it attempted to collect over $6,000 in allegedly

16

delinquent taxes that Plaintiff did not owe, not that Chase attempted to foreclose on Plaintiff’s

17

home. See generally Compl. As such, the Court finds that Plaintiff has adequately pled that

18

Chase acted as a “debt collector” collecting a “debt” under the RFDCPA.

19

4. Chase’s motion to dismiss Plaintiff’s UCL claim is DENIED. Because the Court

20

found above that Plaintiff’s RESPA and RFDCPA claims survive the pleading stage, Plaintiff has

21

sufficiently pled a claim under the UCL’s unlawful prong. Chabner v. United Omaha Life Ins.

22

Co., 225 F.3d 1042, 1048 (9th Cir. 2000) (the unlawful prong of the UCL “borrows violations of

23

other laws and treats them as unlawful practices that the unfair competition law makes

24

independently actionable”); Guccione, 2015 WL 1968114, at *16 (N.D. Cal. May 1, 2015) (“[T]he

25

court already has ruled that Plaintiffs’ RESPA and RFDCPA claims survive, and this means that

26

Plaintiffs’ ‘unlawful’ UCL claim survives, too.”) Additionally, the Court finds Plaintiff’s

27

allegations that Chase improperly attempted to charge him over $6,000 in delinquent property

28

taxes for almost two years, while sending Plaintiff inconsistent explanations and incorrect
3

1

documentation, states a claim under the UCL’s unfair prong. See Phipps v. Wells Fargo Bank,

2

N.A., No. CV F 10-2025 LJO SKO, 2011 WL 302803, at *16 (E.D. Cal. Jan. 27, 2011) (describing

3

California’s three tests under the UCL’s unfair prong). Accordingly, the Court finds that

4

Plaintiff’s UCL claim survives the pleading stage under both the unlawful and unfair prongs.3

5

5. The motion to dismiss Plaintiff’s IIED claim is GRANTED. Plaintiff does not

6

oppose Chase’s motion to dismiss his IIED claim. See generally Dkt. No. 24. Accordingly, the

7

Court interprets Plaintiff’s failure to oppose as a concession that his IIED claim should be

8

dismissed. See Marziano v. Cty. of Marin, No. C-10-2740 EMC, 2010 WL 3895528, at *4 (N.D.

9

Cal. Oct. 4, 2010) (failure to oppose motion to dismiss interpreted as a concession that claim at
issue should be dismissed); see also GN Resound A/S v. Callpod, Inc., No. C 11-04673 SBA, 2013

11
United States District Court
Northern District of California

10

WL 1190651, at *5 (N.D. Cal. Mar. 21, 2013) (construing plaintiff’s failure to oppose defendant’s

12

argument as concession of said argument).

13

*

*

*

For the foregoing reasons, Chase’s motion to dismiss is GRANTED IN PART and

14
15

DENIED IN PART. Chase’s motion to dismiss Plaintiff’s IIED claim is GRANTED WITH

16

LEAVE TO AMEND. The remainder of Chase’s motion is DENIED.

17

To the extent Plaintiff is able to state an IIED claim that comports with the requirements of

18

Twombly and all other controlling legal standards, Plaintiff may file an amended complaint within

19

21 days of the date of this Order. The Court sets a case management conference for February 7,

20

2017 at 2:00pm. The parties shall file a joint case management statement by January 31, 2017.
IT IS SO ORDERED.

21
22

Dated: 12/22/2016
______________________________________
HAYWOOD S. GILLIAM, JR.
United States District Judge

23
24
25
26
27
28

3

In his opposition, Plaintiff does not argue that he states a claim under the UCL’s “fraudulent”
prong. See Dkt. No. 24 at 12-14. Thus, Plaintiff’s UCL claim is limited to theories under the
UCL’s “unlawful” and “unfair” prongs.
4