Howl v. Bank of America, N.A. et al

Filing 69

ORDER by Judge Claudia Wilken GRANTING DEFENDANTS 63 MOTION TO DISMISS. (Attachments: # 1 Certificate/Proof of Service) (ndr, COURT STAFF) (Filed on 2/19/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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MICHAEL A. HOWL,

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No. C 11-887 CW

Plaintiff,

ORDER GRANTING
DEFENDANTS’ MOTION
TO DISMISS (Docket
No. 63)

v.

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BANK OF AMERICA, N.A; BAC HOME
LOAN SERVICING, LP; PRLAP, INC.;
RECONTRUST, N.A.; and DOES 1-50,

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Defendants.

United States District Court
For the Northern District of California

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________________________________/
Plaintiff Michael A. Howl brings the instant mortgage-related

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suit against Defendants Bank of America, N.A., BAC Home Loan

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Servicing, LP, PRLAP, Inc. and ReconTrust Company, N.A.

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second amended complaint (2AC), Plaintiff asserts a claim that

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Bank of America and BAC Home Loan Servicing breached a mortgage

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contract with him.

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of the Real Estate Settlement Procedures Act (RESPA) against BAC

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Home Loan Servicing and ReconTrust.

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Plaintiff’s 2AC.

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the papers filed by the parties, the Court GRANTS Defendants’

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motion.

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In his

Plaintiff also asserts a claim for violation

Defendants move to dismiss

Plaintiff opposes the motion.

Having considered

BACKGROUND
The facts set forth herein are those alleged in Plaintiff’s

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2AC and in the documents of which Defendants have requested

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judicial notice, without objection from Plaintiff.

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Bank of America engages in mortgage lending and the other
Defendants all engage in mortgage servicing.

2AC ¶¶ 2-5.

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On or about August 23, 2007, Plaintiff obtained a loan from

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Bank of America for $1.5 million, secured by a deed of trust for

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his home located at 288 Love Lane in Danville, California.

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¶ 11.

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for the loan, but not the deed of trust.

Id. at

Plaintiff has attached to his 2AC the Adjustable Rate Note
2AC, Ex. A.

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Prior to, and at the time of, the execution of the loan

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agreement, Jared Hayward, a mortgage broker, who was purportedly

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an agent of Bank of America, made certain representations to

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Plaintiff.

2AC ¶¶ 13-15.

Hayward orally communicated to

United States District Court
For the Northern District of California

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Plaintiff “that there was to be no prepayment penalty and that any

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payment would be applied to principal as described in Paragraph 3c

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of the contract.”

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to an email from Plaintiff in which he questioned why there was a

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“prepay” listed on the “disclosures,” Hayward stated in an email,

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“There is no prepay.

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[off] and initial.

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that the loan was executed, Hayward told Plaintiff that “the

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interest rate would be tied to an independent, impartial index

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known as the LIBOR as reported in the Wall Street Journal, and

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furthermore that his loan rate would be based on the amount of the

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LIBOR in the 45 days prior to his loan.”

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also informed him that “the benefit of an adjustable loan is that

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if interest rates go down you can benefit from a greatly reduced

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interest rate,” and gave as an example that “if the LIBOR went

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down to 1% the total interest rate would be 3.250.”

Id. at ¶ 13.

On August 10, 2007, in response

It was filled in by accident.

Sorry, Jared.”

Id.

You can cross

In addition, at the time

Id. at ¶ 14.

Hayward

Id. at ¶ 15.

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Sections two and four of the Adjustable Rate Note between

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Plaintiff and Bank of America address the interest rate on the

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loan.

Section two provides that Plaintiff “will pay interest at a
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yearly rate of 8.125%” and that the “interest rate will change in

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accordance with Section 4 of this Note.”

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4(A) states, “The interest rate I will pay may change on the FIRST

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day of October, 2012 and on that day every 12th month thereafter,”

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which is referred to as the “Change Date.”

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4(B) provides, “Beginning with the first Change Date, my interest

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rate will be based on an Index.

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LONDON INTERBANK OFFERED RATE (“LIBOR”) WHICH IS THE AVERAGE OF

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INTERBANK OFFERED RATES FOR ONE-YEAR U.S. DOLLAR-DENOMINATED

2AC, Ex. A, 1.

Id. at 2.

Section

Section

The ‘Index’ is: THE ONE-YEAR

United States District Court
For the Northern District of California

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DEPOSITS IN THE LONDON MARKETS, AS PUBLISHED IN THE WALL STREET

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JOURNAL. . . .”

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rate changes and states,

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Section 4(D) sets forth limits on interest

The interest rate I am required to pay at the first
Change Date will not be greater than 13.125% or less
than 3.125%. Thereafter, my interest rate will never be
increased or decreased on any single Change Date by more
than TWO percentage points (2.000%) from the rate of
interest I have been paying for the preceding period.

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Id.

Id. at 3.
Section three of the Note addresses payments.

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It provides,

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“Beginning on the FIRST day of the NOVEMBER, 2007 and on the FIRST

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day of every month thereafter until the FIRST day of November,

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2017, I will pay only the interest on the unpaid principal balance

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of the Note.

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making payments every month as provided below.”

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Section 3(A) provides in part that each monthly payment “will be

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applied to interest before Principal.”

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that the “initial monthly payments will be in the amount of U.S.

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$10,156.25” and further states, “This amount may change.”

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2.

Thereafter, I will pay principal and interest by

Id.

Id. at 1.

Section 3(B) states

Id. at

Section 3(C) states, “Changes in my monthly payment will
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reflect changes in the unpaid principal of my loan and in the

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interest rate that I must pay,” and that the note holder would

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calculate the “changed amount of my monthly payment in accordance

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with Section 4 of this Note.”

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that, during the interest-only payment period, after calculating

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the new interest rate at the Change Date, the note holder would

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then determine the new amount of the monthly payment by

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calculating “the amount of the monthly payment that would be

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sufficient to pay the interest which accrues on the unpaid

United States District Court
For the Northern District of California

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principal of my loan.”

Id.

In turn, Section 4(C) provides

Id. at 2.

Section five addresses Plaintiff’s right to prepay.

It

states in relevant part,
I HAVE THE RIGHT TO MAKE PAYMENTS OF PRINCIPAL AT ANY
TIME BEFORE THEY ARE DUE. A PAYMENT OF PRINCIPAL ONLY
IS KNOWN “PREPAYMENT.” WHEN I MAKE A PREPAYMENT, I WILL
TELL THE NOTE HOLDER IN WRITING THAT I AM DOING SO . . .
I MAY MAKE A FULL PREPAYMENT OR PARTIAL PREPAYMENT
WITHOUT PAYING A PREPAYMENT CHARGE. AFTER PAYING ANY
LATE FEES OR OUTSTANDING FEES THAT I OWE, THE NOTE
HOLDER WILL USE MY PREPAYMENTS TO REDUCE THE AMOUNT OF
PRINCIPAL THAT I OWE UNDER THIS NOTE. HOWEVER, THE NOTE
HOLDER MAY APPLY MY PREPAYMENT TO THE ACCRUED AND UNPAID
INTEREST ON THE PREPAYMENT AMOUNT BEFORE APPLYING MY
PREPAYMENT TO REDUCE THE PRINCIPAL AMOUNT OF THE NOTE.
. . . IF THE PARTIAL PREPAYMENT IS MADE DURING THE
PERIOD WHEN MY MONTHLY PAYMENTS CONSIST ONLY OF
INTEREST, THE AMOUNT OF THE MONTHLY PAYMENTS WILL
DECREASE FOR THE REMAINDER OF THE TERM WHEN MY PAYMENTS
CONSIST ONLY OF INTEREST. . . .
Id. at 3.

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Finally, Section seven addresses Plaintiff’s failure to pay
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as required.

Section 7(B) provides, “If I do not pay the full

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amount of each monthly payment on the date it is due, I will be in
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default.”

Id. at 4.

Section 7(C) states, “If I am in default,

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the Note Holder may send me a written notice telling me that if I
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do not pay the overdue amount by a certain date, the Note Holder

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may require me to pay immediately the full amount of Principal

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which has not been paid and all the interest that I owe on that

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amount.”

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Id.

Plaintiff alleges that he made twenty-three prepayments but
that Bank of America and BAC Home Loan Servicing only show that he

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made twenty-one prepayments and that they did not calculate the

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remaining prepayments correctly.

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Plaintiff made a payment of $10,684.80; he states that $528.55 of

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United States District Court
For the Northern District of California

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this payment should have been used to reduce the principal balance

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from $1.5 million to about $1,499,471.

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America and BAC Home Loan Servicing continued to charge him

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interest on the original principal of $1.5 million and did not

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credit this amount to his account.

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charged Plaintiff $10,350.90 in interest, which was higher than

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the amount stated in the Note for the monthly interest-only

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payment.

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in addition to the $10,152.67 that was set forth in the Note for

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the monthly interest-only payment amount was not applied to reduce

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the principal and he continued to be charged interest on the full

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$1.5 million.

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of $11,000.

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America and BAC Home Loan Servicing gave him credit for a

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prepayment of principal but that they reduced the principal by

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$843.75 and should have reduced it by $848.67.

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Id.

2AC ¶ 12.

Id.

Id.

In August 2007,

However, Bank of

In September 2007, they

Although he paid that amount, the $198.23 he paid

Id.

Id.

On November 1, 2007, Plaintiff made a payment

He states that, for the first time, Bank of

Id.

Plaintiff alleges that, as of June 2009, he had paid

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$223,601.25 in total toward his loan but that Bank of America and

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BAC Home Loan Servicing are “only giving credit for $202,816.45”
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and that he was current on his loan when these Defendants claimed

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that he was delinquent and refused to accept additional payments.

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Id. at ¶¶ 12, 29.

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Plaintiff also alleges that the “LIBOR 12 month rate in
August of 2007 was 5.186%,”

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make the correct agreed interest rate for the loan 7.436 percent”

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and thus that the initial 8.125 percent interest rate included in

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the loan was improper.

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two percent limit on the changes in the interest rate in the Note

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United States District Court
For the Northern District of California

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contradicted Hayward’s representation to him that his rate would

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decrease as the LIBOR decreased.

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addition, he contends that Bank of America improperly manipulated

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the LIBOR rate in order to collect a higher interest rate.

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¶¶ 19-22, 26.

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“that the added margin of 2.25% would

Id. at ¶ 24.

He further contends that the

Id. at ¶¶ 15, 23-24.

In

Id. at

On September 14, 2010, ReconTrust recorded a Notice of

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Default and Election to Sell Under Deed of Trust.

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Request for Judicial Notice (RJN), Ex. C.

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stated that Plaintiff failed to make the payment due on June 1,

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2009 and all subsequent payments.

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of Default, ReconTrust is identified as the agent of the

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Beneficiary, Bank of America.

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provides,

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The Notice of Default

RJN, Ex. C, 2.

Id.

2AC ¶ 28;

On the Notice

The Notice of Default also

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To find out the amount you must pay, or to arrange for
payment to stop the foreclosure, or if your property is
in foreclosure for any other reason, contact:

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BANK OF AMERICA, N.A.

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C/O BAC Home Loans Servicing, LP

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400 COUNTRYWIDE WAY SV-35

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SIMI VALLEY, CA 93065
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FORECLOSURE DEPARTMENT [phone]

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Id.
Plaintiff alleges that, on October 8, 2010, he sent a letter

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“to BAC Home Loan and ReconTrust after receiving a letter from

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ReonTrust dated October 1, 2010.”

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However, the letter that he attached to the 2AC as Exhibit 2 is

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addressed to “ReconTrust c/o BAC Home Loan Servicing.”

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Ex. 2.

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request.”

United States District Court
For the Northern District of California

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2AC ¶ 34 (errors in original).

2AC ¶ 33,

Plaintiff states in the 2AC that this was “his second
2AC ¶ 34.

In the letter, Plaintiff wrote,

I received the packet of information that you provided
me regarding the loan described above for real estate at
288 Love Lane in Danville, CA. However, there are
multiple problems with the accounting. In escrow I paid
$10,684.80 to the loan in August 2007 but that payment
does not show on the statement. In addition, the
initial interest on the contract was to be $10,156.25
monthly but reduced if principal payments were made and
I made several principal payments . . . Furthermore, at
the start of the loan I made additional payments each
month that would reduce the principal however, the
stated interest in the second and third months are the
initial contract amount of $10,156.25. In addition the
amount of interest charged in October of 2007 was
$10,350.90 which is too high. I made payments of more
than 20,000 dollars more than what is shown on the total
payments when added together.
In addition, I would like for you to provide the
documentation that shows or confirms your authority to
act on behalf of Bank of America. I did receive the
Deed of Trust and promissory note from you but it only
refers to Bank of America and does not tie in your
authority in any way. What is your authority to service
the loan and why are you not showing the full amount of
my payments made for the loan?

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2AC, Ex. B.
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Plaintiff states that neither ReconTrust nor BAC Home Loan
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Servicing responded to his October 8, 2010 letter.

2AC ¶ 35.

He

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alleges that, as a result of the lack of a response, he incurred
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damages, including expenses related to filing this lawsuit, the
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additional interest and fees that Bank of America and BAC Home

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Loan Servicing continued to charge after he sent the letter,

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“higher interest rates being charged against his account” and

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“loss of principal payments that were not credited to his account

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in the amount in excess of $20,000.00.”

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Id.

On December 16, 2010, ReconTrust, as trustee, recorded a
Notice of Trustee’s Sale.

RJN, Ex. D.

Plaintiff filed his action in Contra Costa County Superior
Court on January 21, 2011 and recorded a Notice of Pending Action

United States District Court
For the Northern District of California

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on March 4, 2011.

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Plaintiff’s action to federal court on February 24, 2011.

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Docket No. 1; RJN, Ex. E.

Defendants removed

On June 6, 2011, ReconTrust recorded a Notice of Rescission

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of Declaration of Default and Demand for Sale and of Notice of

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Default and Election to Sell.

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RJN, Ex. F.

On August 17, 2011, upon motion from Defendants, the Court

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dismissed Plaintiff’s first complaint and granted him leave to

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amend certain claims.

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Docket No. 36.

On August 30, 2011, Plaintiff filed his first amended

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complaint (1AC).

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claims from his original complaint and added several new claims,

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including a claim for breach of contract and a claim against BAC

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Home Loan Servicing only for violation of RESPA.

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opposition to Defendants’ motion to dismiss the 1AC, Plaintiff

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clarified that his new breach of contract claim was asserted

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against Bank of America only.

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Docket No. 38.

In it, he re-asserted certain

In his

Docket No. 46, 2.

On March 19, 2012, the Court granted Defendants’ motion to

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dismiss the 1AC.

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Plaintiff leave to amend his breach of contract claim against Bank

Docket No. 61.

At that time, the Court granted

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of America and his RESPA claim against BAC Home Loan Servicing to

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address the deficiencies identified in that order.

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stated, “In an amended complaint, Plaintiff shall not renew any

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claims other than the two noted herein and shall not raise any new

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claims.”

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Id. at 18.

Defendants now move to dismiss the 2AC in its entirety.

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The Court also

LEGAL STANDARD
A complaint must contain a “short and plain statement of the
claim showing that the pleader is entitled to relief.”

Fed. R.

United States District Court
For the Northern District of California

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Civ. P. 8(a).

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state a claim, dismissal is appropriate only when the complaint

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does not give the defendant fair notice of a legally cognizable

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claim and the grounds on which it rests.

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Twombly, 550 U.S. 544, 555 (2007).

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complaint is sufficient to state a claim, the court will take all

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material allegations as true and construe them in the light most

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favorable to the plaintiff.

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896, 898 (9th Cir. 1986).

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to legal conclusions; “threadbare recitals of the elements of a

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cause of action, supported by mere conclusory statements,” are not

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taken as true.

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(citing Twombly, 550 U.S. at 555).

On a motion under Rule 12(b)(6) for failure to

Bell Atl. Corp. v.

In considering whether the

NL Indus., Inc. v. Kaplan, 792 F.2d

However, this principle is inapplicable

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009)

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When granting a motion to dismiss, the court is generally

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required to grant the plaintiff leave to amend, even if no request

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to amend the pleading was made, unless amendment would be futile.

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Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911

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F.2d 242, 246-47 (9th Cir. 1990).

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amendment would be futile, the court examines whether the

In determining whether

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complaint could be amended to cure the defect requiring dismissal

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“without contradicting any of the allegations of [the] original

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complaint.”

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Cir. 1990).

Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th

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DISCUSSION
I.

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Breach of contract claim
In his breach of contract claim, Plaintiff alleges that Bank

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of America and BAC Home Loan Servicing breached the Note when they

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failed properly to apply his payments to his account, “claimed

United States District Court
For the Northern District of California

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that Plaintiff was delinquent and attempted to collect additional

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money in excess of the amount due under the terms of the contract”

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and by “failing to properly credit payments and continuing to file

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a Notice of Default and Notice of Trustee Sale in violation of the

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terms of the Contract.”

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allege that these Defendants were in breach by charging him more

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interest than permitted by the contract.

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dismiss this claim in its entirety.

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2AC ¶¶ 29-31.

Plaintiff also appears to

Defendants move to

The Court grants the motion to dismiss this claim as to BAC

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Home Loan Servicing.

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to dismiss, Defendants argued that Plaintiff had not plead which

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Defendants were the subject of each of his claims and thus had not

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provided Defendants with sufficient notice of the claims against

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them.

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of action, which was for breach of contract, “defendant Bank of

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America was clearly stated as the breaching party.”

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46, 2.

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subject of that claim and he went on to defend the sufficiency of

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his allegations for the claim as to only Bank of America.

In the briefing related to the prior motion

Plaintiff responded, in relevant part, for his first cause

Docket No.

Plaintiff did not identify any other Defendant as the

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In part

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in reliance on Plaintiff’s representation that this claim was

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asserted against Bank of America only, the Court found that

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Plaintiff had provided sufficient notice to Defendants of the

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conduct with which each was accused.

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granting Plaintiff leave to amend his breach of contract claim,

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the Court gave permission to do so only against Bank of America

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and did not allow Plaintiff to raise new claims for which it had

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not granted leave.

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permitted to assert a breach of contract claim against BAC Home

United States District Court
For the Northern District of California

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Id. at 7, 18.

Docket No. 61, 3-4.

In

Thus, Plaintiff was not

Loan Servicing in his 2AC.

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To assert a cause of action for breach of contract, a

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plaintiff must plead: (1) the existence of a contract; (2) the

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plaintiff’s performance or excuse for non-performance; (3) the

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defendant’s breach; and (4) damages to the plaintiff as a result

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of the breach.

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Co., 116 Cal. App. 4th 1375, 1391 n.6 (2004).

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Armstrong Petrol. Corp. v. Tri-Valley Oil & Gas

Defendants argue that this claim fails in its entirety for a

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number of reasons.

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failed to set out verbatim the terms of the Deed of Trust that

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were breached or to attach a copy of that document to his 2AC.

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However, Plaintiff has alleged that Defendants breached the

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provisions of the Adjustable Rate Note, not the Deed of Trust, and

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he did attach that document to his pleading.

First, Defendants contend that Plaintiff

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Second, Defendants argue that, to the extent that Plaintiff’s

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breach of contract claim is based on the oral representations made

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by Hayward about the interest rate for the loan, such claims are

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barred because they were not brought within the two year statute

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of limitations for breach of an oral contract, they are barred by
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the statute of fraud and any oral representations were superseded

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by the written and agreed upon terms contained in the Note, Deed

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of Trust and adjustable rate rider.

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these arguments and instead responds that he did not intend to

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allege that there was an oral contract and that he instead

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included the written and verbal comments made by Hayward in order

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to help show that the parties had intended to allow prepayments

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under the contract.

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on the representations that Hayward made outside of the contract

Plaintiff does not address

Thus, Plaintiff has repudiated any reliance

United States District Court
For the Northern District of California

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as the basis for his breach of contract claim.

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no other basis for a claim that Defendants breached the agreement

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by charging him an interest rate other than the initial 8.125

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percent interest rate set forth in the Note or by charging him an

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initial interest rate that was not tied to “an independent,

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impartial LIBOR rate.”

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motion to dismiss the breach of contract claim to the extent it is

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predicated on these allegations.

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He also points to

Accordingly, the Court grants Defendants’

Third, Defendants argue that Plaintiff has not specifically

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identified any provision of the Note that was breached by their

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purported failure to credit the prepayments to his account.

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contend that the sections of the Note that Plaintiff points to in

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his 2AC “do not concern how payments are credited to the loan.”

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Mot. at 5.

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how prepayments are to be credited to the loan.

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addresses this for regular monthly payments and provides that

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these will be applied to interest before principal.

This argument is unavailing.

They

Section five sets forth
Section three

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However, Defendants also argue that Plaintiff has not

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sufficiently plead that Bank of America breached the contract by
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failing properly to credit his prepayments to his account because

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he has not plead that he notified Bank of America in writing of

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the prepayments.

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obliged Plaintiff, when making prepayments, to “tell the note

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holder in writing that” he was “doing so.”

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Plaintiff has not plead that he did so and did not respond to

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Defendants’ argument in his opposition.

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plead that he met the requirements in the contract to have a

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prepayment applied to his account, Plaintiff has not sufficiently

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United States District Court
For the Northern District of California

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plead that Defendants breached the contract by failing to credit

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these properly.

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As set forth above, Section five of the Note

2AC, Ex. A, 3.

Because Plaintiff has not

Further, Plaintiff has not plead facts that would support a

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finding that the payments that Plaintiff sent to Defendants in

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August and September 2007 were monthly payments subject to the

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provisions of Section three of the Note, rather than Section five

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which addresses prepayments.

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three states that his monthly payments would begin on November 1,

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2007.

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prepayments to his account prior to that date, he was required to

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do so in accordance with the prepayment provisions of the Note.1

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As Defendants point out, Section

Although Plaintiff is correct that he had a right to make

In addition, Defendants contend that, aside from the payments

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made in August and September 2007, Plaintiff does not offer

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sufficient factual allegations about any of the more than twenty

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other payments that Defendants purportedly failed to credit

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The Court notes that such a result does not bar
from seeking recovery in state court of the money that
Defendants and was never credited to his account under
contract or quantum meruit theory. The Court does not
whether there may other barriers to such a claim.
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Plaintiff
he paid to
a quasiopine as to

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properly to Plaintiff’s account.

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paragraph twelve of the 2AC provides sufficient notice of the

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payments that were made and not credited to his account.

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Plaintiff responds that

In that paragraph, Plaintiff provides details of only one

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additional instance in which he states that Defendants failed

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properly to apply a payment to his account.

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November 1, 2007, he made a payment of $11,000 and Defendants gave

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him “credit for prepayment of principal in the amount of $843.75.”

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2AC ¶ 12.

He states that, on

This corresponds to the amount that Plaintiff paid in

United States District Court
For the Northern District of California

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addition to the regular monthly payment amount specified in the

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Note, which was $10,156.25.

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was incorrect and that instead his payment for interest should

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have been $10,151.33 and $848.67 should have gone to prepayment of

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principal.

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Defendants applied to principal was incorrect or what provision of

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the agreement they violated by applying this amount.

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of the complaint, the calculation appears to have been done in

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compliance with Section 3(A) of the Note, which specifies the

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amount of the initial interest-only payment.

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Plaintiff intended to state that the interest-only payment should

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have been lower because the August and September 2007 prepayments

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should have reduced his outstanding principal, thereby lowering

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the amount sufficient to pay the interest that accrued on the

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unpaid principal of the loan, this is simply a restatement of the

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allegation that Defendants breached the agreement by failing

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properly to credit those prepayments, which Plaintiff has failed

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to plead sufficiently as set forth above.

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Plaintiff alleges that the calculation was done improperly for

Id.

Plaintiff alleges that this amount

Plaintiff does not directly state why the amount

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On the face

To the extent that

To the extent that

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some other reason, he does not state which provisions he alleges

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Defendants violated or how their crediting of his payments

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violated any particular provisions.

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sufficient facts as to how Defendants failed to calculate

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correctly or apply the other twenty prepayments and what provision

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they violated in doing so.

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Plaintiff also does not plead

Accordingly, the Court GRANTS Defendants’ motion to dismiss

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Plaintiff’s breach of contract claim against Bank of America.

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Because Plaintiff has had an opportunity to correct the

United States District Court
For the Northern District of California

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deficiencies in this claim, dismissal is without leave to amend.

11 II.

RESPA claim

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In his RESPA claim, Plaintiff alleges that BAC Home Loan

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Servicing and ReconTrust failed to respond to his October 8, 2010

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qualified written request for information, in which he sought

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information regarding the amount apparently owed on the loan and

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their authority in relation to a debt that had originated with

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Bank of America, in violation of 12 U.S.C. § 2605.

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move to dismiss this claim in its entirety.

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Defendants

The Court grants the motion to dismiss this claim as to

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ReconTrust.

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his RESPA claim against BAC Home Loan Servicing only.

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4:10-11 (“2nd Cause of Action Violation of RESPA against BAC Home

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Loan Servicing”).

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claim, the Court gave permission to do so only against BAC Home

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Loan Servicing only and did not allow Plaintiff to raise new

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claims.

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assert a RESPA claim against ReconTrust in his 2AC.

In Plaintiff’s 1AC, he specifically stated asserted
1AC at

In granting Plaintiff leave to amend his RESPA

Id. at 9, 18.

Thus, Plaintiff was not permitted to

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Defendants argue that the October 8, 2010 letter was sent to

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ReconTrust and was not directed to BAC Home Loan Servicing, and

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thus that this claim cannot be maintained against the latter based

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on this letter.

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was addressed to “ReconTrust c/o BAC Home Loan Servicing,” he has

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sufficiently stated a RESPA claim because BAC Home Loan Servicing

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appears in the address of the letter and because he alleges in the

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body of the 2AC that he sent the qualified written request to the

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“proper entity.”

Plaintiff responds that, even though the letter

Opp. at 7.

In his opposition, Plaintiff

United States District Court
For the Northern District of California

10

explains that, sometime before October 2010, he had sent a prior

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qualified written request to BAC Home Loan Servicing and that, in

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response to the first letter, he received a response from

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ReconTrust on October 1, 2010, a copy of which he attaches to his

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brief.

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ReconTrust provided a payment history for his account and a payoff

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statement and stated that, if he had any information or

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documentation indicating that the payoff calculation was

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incorrect, he should send copies to ReconTrust, at the address on

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the letter, as soon as possible.

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the address to which he sent the October 8 letter.

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argues that, because in response to his first written request, he

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received a response from ReconTrust, was told to send concerns to

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it and did so, his second written request was sent properly.

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Plaintiff also suggests that, if sending his second request to

Opp. at 7, Ex. A.2

In the October 1, 2010 letter,

Plaintiff states that this was
Plaintiff

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2

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This letter is incorporated by reference into the 2AC. See
2AC ¶ 34 (referring to the letter dated October 1, 2010 that
Plaintiff received from ReconTrust and some of the contents of
that letter).
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1

ReconTrust did not count as a qualified written request, then BAC

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Home Loan Servicing did not properly respond to his first written

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request.

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Plaintiff has failed to state a claim for violation of RESPA

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against BAC Home Loan Servicing because he does not plead that the

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October 8, 2010 letter was a qualified written request to that

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entity.

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“receives a qualified written request from the borrower.”

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U.S.C. § 2605(e)(1)(A).

RESPA imposes duties upon a loan servicer when it
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Plaintiff has not sufficiently alleged

United States District Court
For the Northern District of California

10

that he sent BAC Home Loan Servicing such a request; instead, the

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letter attached to his pleading states that he sent the request to

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ReconTrust.

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the request to BAC Home Loan Servicing, such that BAC Home Loan

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Servicing ever received it or had an opportunity to respond to it.

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Plaintiff suggests that the Court must consider his allegations

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that he sent the letter to “BAC Home Loan and ReconTrust” rather

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than what was written on the letter itself.

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to dismiss, the allegations in the complaint are to be taken as

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true, this does not apply when the allegations are contradicted by

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documents of which the Court may take judicial notice.

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Disc, Inc. v. Systems Technology Assocs., Inc., 557 F.2d 1280,

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1284 (9th Cir. 1977) (court may not assume truth of allegations if

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they are contradicted by admissible evidence).

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Plaintiff suggests that he could alternatively maintain a claim

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based on the earlier letter that he sent to BAC Home Loan

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Servicing, in the 2AC, Plaintiff has alleged a violation on the

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basis of BAC Home Loan Servicing’s failure to respond properly to

There is also no allegation that ReconTrust provided

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Although, on a motion

See Data

Also, although

1

the October 8 letter and does not refer to any prior letter or

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purport to make a claim on the basis of such a letter.

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Accordingly, the Court GRANTS Defendants’ motion to dismiss

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Plaintiff’s RESPA claim.

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to correct the deficiencies in this claim, dismissal is without

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leave to amend.

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8
9

Because Plaintiff has had an opportunity

CONCLUSION
For the reasons set forth above, the Court GRANTS Defendants’
motion to dismiss Plaintiff’s 2AC (Docket No 63).

Because the

United States District Court
For the Northern District of California

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Court grants Defendants’ motion to dismiss and does not grant

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Plaintiff leave to amend, the lis pendens recorded on March 4,

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2011 in the official records of the Contra Costa County Recorder

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as Document No. 2011-0048382-00 is EXPUNGED.

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The Clerk shall enter judgment and close the file.
Defendants shall recover their costs from Plaintiff.
IT IS SO ORDERED.

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Dated:

2/19/2013

CLAUDIA WILKEN
United States District Judge

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