Lyons et al v. Bank of America, NA et al

Filing 42

ORDER GRANTING IN PART DEFENDANTS' 38 MOTIONS TO DISMISS AND TO STRIKE. Case Management Statement due by 2/15/2012. Case Management Conference set for 2/22/2012 02:00 PM. Signed by Judge Claudia Wilken on 12/16/2011. (ndr, COURT STAFF) (Filed on 12/16/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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4
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GINA LYONS and JERRY LYONS, on
behalf of themselves and all
others similarly situated,

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Plaintiffs,

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8
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United States District Court
For the Northern District of California

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11
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No. C 11-1232 CW
ORDER GRANTING IN
PART DEFENDANTS'
MOTIONS TO DISMISS
AND TO STRIKE

v.
BANK OF AMERICA, NA and BAC HOME
LOANS SERVICING, LP, a wholly
owned subsidiary of Bank of
America,
Defendants.
________________________________/

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This case arises out of Plaintiffs Gina and Jerry Lyons'
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residential mortgage and related foreclosure by Defendants Bank of
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America, NA and BAC Home Loans Servicing (together, BOA).
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Defendants move to dismiss Plaintiffs' First Amended Complaint
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(1AC) and to strike, under Federal Rules of Civil Procedure 12(f)
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and 23(d)(1)(D), certain allegations in the 1AC.

Plaintiffs have

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filed an opposition.

The motions were taken under submission to

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be decided on the papers.

Having considered all the papers filed

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by the parties, the Court grants in part Defendants' motion to
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dismiss, grants Defendants' motion to strike the class allegations
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under Rule 23(d)(1)(D) and grants in part Defendants' motion to
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strike under Rule 12(f).
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The factual background is provided in the August 15, 2011
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Order Granting in Part Defendants' Motion to Dismiss.

In that

27
order, the Court found three of Plaintiffs' claims to be
28

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cognizable, dismissed several claims with prejudice and dismissed

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six claims with leave to amend.

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in which they allege six claims: (1) breach of contract;

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(2) breach of the covenant of good faith and fair dealing;

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(3) fraud; (4) negligent representation; (5) false advertising

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under California Business and Professions Code section 17500;1 and

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(6) violations of California Business and Professions Code section

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17200.

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United States District Court
For the Northern District of California

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Plaintiffs timely filed their 1AC

DISCUSSION
I. Motion To Dismiss

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A. Legal Standard

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A complaint must contain a “short and plain statement of the

13

claim showing that the pleader is entitled to relief.”

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Civ. P. 8(a).

15

Fed. R.

Dismissal under Rule 12(b)(6) is appropriate only

when the complaint does not give the defendant fair notice of a

16
legally cognizable claim and the grounds on which it rests.

Bell

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18

Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

In considering

19

whether the complaint is sufficient to state a claim, the court

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will take all material allegations as true and construe them in

21

the light most favorable to the plaintiff.

NL Indus., Inc. v.

22

Kaplan, 792 F.2d 896, 898 (9th Cir. 1986).

However, this

23

principle is inapplicable to legal conclusions; “threadbare

24
recitals of the elements of a cause of action, supported by mere
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26
27
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1

Plaintiffs do not oppose Defendants' motion to dismiss
their claim for false advertising under California Business and
Professions Code section 17500. Therefore, the Court grants
Defendants' motion to dismiss this claim.
2

1

conclusory statements,” are not taken as true.

Ashcroft v. Iqbal,

2

129 S. Ct. 1937, 1949-50 (2009) (citing Twombly, 550 U.S. at 555).

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B. Contract Claims

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In the 1AC, Plaintiffs allege that Defendants breached three

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6

different contracts: (1) the original mortgage agreement; (2) an
oral contract to enter into a loan modification agreement; and

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(3) the loan modification agreement.
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To assert a cause of action for breach of contract, a

9

United States District Court
For the Northern District of California

10

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

11

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

12

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

13

of the breach.

14

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

Armstrong Petrol. Corp. v. Tri-Valley Oil & Gas
The prevention of

15
performance by one party to the contract excuses performance by
16
the other party.

Lortz v. Connell, 273 Cal. App. 2d 286, 290

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19

(1969).
The formation of a contract requires an offer and acceptance.

20

Brown v. California State Lottery Comm'n, 232 Cal. App. 3d 1335,

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1339 (1991).

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enter into a bargain, so made as to justify another person in

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"An offer is the manifestation of willingness to

understanding that his assent to that bargain is invited and will

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conclude it."

Donovan v. RRL Corp., 26 Cal. 4th 261, 271 (2001).

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26
27

"The terms of an offer must be met exactly, precisely and
unequivocally for its acceptance to result in the formation of a

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3

1

binding contract."

2

Co. v. Hock Investment Co. 68 Cal. App. 4th 83, 89 (1998).

3

Marcus & Millichap Real Estate Inv. Brokerage

1. Breach of the Original Loan Agreement

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In the August 15, 2011 Order, the Court dismissed this claim

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because Plaintiffs had failed to allege that they were up-to-date

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on their loan payments when Defendants initiated foreclosure

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proceedings.

In their 1AC, Plaintiffs allege the following.

On

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February 26, 2009, they were current on their loan payments when

United States District Court
For the Northern District of California

10

they contacted Defendants to request a loan modification.

1AC

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¶ 196.

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eligible for a loan modification only if they were three months in

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arrears on loan payments.

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that they did not want to default on their loan, but Defendants

Defendants instructed Plaintiffs that they would be

1AC ¶ 197.

Plaintiffs told Defendants

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said, a second time, that Plaintiffs would not be eligible for a
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loan modification unless they were three months in arrears.

1AC

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18

¶ 199-200.

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Plaintiffs did not make the next three payments on their loan.

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1AC ¶ 201.

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monthly payment, but Defendants would only accept payment for the

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total owed for the three months plus late fees and would not

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In accordance with Defendants' instructions,

After three months, Plaintiffs attempted to make their

accept payment for one month.

1AC ¶ 202-03.

At the same time,

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Plaintiffs applied for a loan modification from Defendants.

1AC

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26

¶ 205.

Plaintiffs faxed to Defendants all the documentation

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Defendants requested, but Defendants said, on multiple occasions,

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that the documents were not received or were incomplete.
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1AC

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¶ 207-08.

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calls to Plaintiffs about their unpaid loan payments, even though

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Plaintiffs were applying for a loan modification.

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September 15, 2009, Plaintiffs received a Notice of Default from

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Defendants, and, on December 16, 2009, Plaintiffs received a

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During this time, Defendants made harassing collection

Notice of Trustee's Sale set for April 20, 2010.

1AC ¶ 209.

On

1AC ¶ 210-11.

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These allegations are sufficient to state a claim for breach
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9

of the loan agreement because Plaintiffs claim that they attempted

United States District Court
For the Northern District of California

10

to perform under the loan agreement, but were thwarted by

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Defendants.

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Defendants argue that these allegations are still

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insufficient to state a breach of contract claim because the deed

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of trust securing Plaintiffs' loan provides that forbearance or

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modification by the lender does not release the borrower from any
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obligations or constitute a waiver of the lenders' rights or
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18

remedies.

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that Defendants waived their right to collect the full amount of

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the loan.

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Defendants, by instructing Plaintiffs to stop making payments so

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that they would qualify for a loan modification, gave up any right

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They characterize Plaintiffs' claim as an allegation

However, Plaintiffs explain that their claim is that

to charge late fees and to foreclose during the time necessary to

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qualify for the modification.
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26

Parties may, by their conduct, waive a provision in a

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contract where evidence shows that was their intent.

28

Equality Emergency Medical Gp., Inc. 102 Cal. App. 4th 125, 141
5

Biren v.

1

(2002); Olyaie v. General Elec. Capital Bus. Asset Funding Corp.,

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217 Fed. Appx. 606, 609 n.2 (9th Cir. 2007).

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the 1AC are sufficient to claim that Defendants intended to waive

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provisions in the deed of trust relating to late fees and

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foreclosure proceedings during the time that Plaintiffs were

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The allegations in

applying for a loan modification.

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Therefore, Defendants' motion to dismiss this claim is
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denied.
2. Oral Agreement For Loan Modification

United States District Court
For the Northern District of California

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In the August 15, 2011 Order, the Court found that Plaintiffs

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had sufficiently alleged a claim for breach of an oral loan

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modification agreement.

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second look at this claim based upon two written documents they

Defendants request that the Court take a

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submit:

(1) Plaintiffs' July 6, 2010 application for the Home

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Affordable Modification Program (HAMP); and (2) an August 28, 2010
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document informing Plaintiffs that they had been approved for the

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three-month trial period plan (TPP) under the HAMP.2

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argue that the application indicates that the information

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Plaintiffs provide would be used to evaluate their eligibility for

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a loan modification, so that Plaintiffs were informed that there

Defendants

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was no guarantee that they would receive a loan modification.
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2

Defendants request that the Court take judicial notice of
the July 6, 2010 HAMP application and the August 28, 2010 TPP
document. The Court grants this request on the grounds that the
1AC refers to these documents, they are central to Plaintiffs'
claim and no party questions their authenticity. See Marder v.
Lopez, 450 F.3d 445, 448 (9th Cir. 2006).
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1

Defendants' argument is unpersuasive.

Plaintiffs allege that

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they first spoke with Defendants regarding a loan modification in

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December, 2008 and that, on February 26, 2009, Defendants

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"instructed Plaintiffs that they would only be eligible for a loan

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modification if they were three months in arrears on mortgage

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payments."

1AC ¶ 197.

According to the 1AC, this was the start

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of a long process in which Plaintiffs complied with all of
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Defendants' requests in order to obtain the loan modification.

It

United States District Court
For the Northern District of California

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was during this time that the parties entered into the oral loan

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modification agreement.

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2010, over one year after Plaintiffs began the loan modification

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process.

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application and the August 28, 2010 TPP agreement, they may have

The HAMP application is dated July 6,

Arguably, when Plaintiffs received the written HAMP

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understood that Defendants were repudiating the alleged oral loan
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modification agreement.

However, the written documents do not

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disprove Plaintiffs' allegations that the parties earlier reached

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an oral agreement for a loan modification.

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Therefore, Defendants' renewed motion to dismiss this claim
is denied.
3. Written Loan Modification Agreement
In their 1AC, Plaintiffs allege that they entered into a

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"binding modification agreement" with Defendants which provided a
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modified payment schedule and, before Plaintiffs could make the

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first payment, Defendants increased the required payment to an

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amount that Plaintiffs could not afford.
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1AC ¶¶ 254-56.

In their

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opposition to the motion to dismiss, Plaintiffs clarify that the

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"binding modification agreement" allegation refers to the August

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28, 2010 TPP agreement which, they argue, was a contract which

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Defendants breached.

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Defendants argue that the August 28, 2010 document merely
extended an offer to Plaintiffs to participate in the TPP and,

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because Plaintiffs did not accept it by making the modified
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payments, a contract was not formed.

Defendants' argument ignores

United States District Court
For the Northern District of California

10

Plaintiffs' allegations that, before the due date for the first

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payment, Defendants increased the amount due to a sum that

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Plaintiffs could not afford.

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payments under the original loan agreement were $3,033 per month.

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Because they could not afford these payments, they sought a loan

Plaintiffs allege that their

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modification to reduce them.

The original TPP document set

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monthly payments of $2,463.78, which would have provided
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Plaintiffs with the relief they sought.

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$2,463.78 was due on October 1, 2010.

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2010, almost an entire month before Plaintiffs were scheduled to

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make their first payment, Defendants increased the TPP payment to

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$3,666.10.

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The first payment of

However, on September 7,

On September 13, 2010, Defendants increased the

payment to the even higher amount of $3,824.14.

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The TPP document states:
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We are pleased to tell you that you are approved to
enter into a trial period plan under the Home Affordable
Modification Program. This is the next step toward
qualifying for more affordable and sustainable mortgage

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payments. . . . Remember, there are no fees associated with
this program.

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It also states:

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To accept this offer you must make new monthly "trial
period payments" in place of your normal monthly mortgage
payment. Send in your monthly trial period payments . . . as
follows:

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5
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1st payment:
2nd payment:
3rd payment:

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$2,463.78 by
$2,463.78 by
$2,463.78 by

10/1/10
11/1/10
12/1/10

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The first paragraph informed Plaintiffs that they were

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United States District Court
For the Northern District of California

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approved for the TPP.

It may be construed as a contract for a

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temporary loan modification.

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as an offer to enter into a permanent loan modification, which

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Plaintiffs could accept by sending in the $2,463.78 modified

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payments by October 1, 2010, November 1, 2010 and December 1,

The second paragraph could be read

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2010.
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Construction of the TPP agreement as a binding contract for a
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temporary loan modification is supported by Plaintiffs'

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allegations that they had been negotiating with Defendants for

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over one a half years for approval to enter the TPP and that they

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complied with all of Defendants' instructions in order to qualify

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for the TPP, including sending and resending financial information

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and allowing their loan to go three months into arrears.

See

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Ansanelli v. JP Morgan Chase Bank, N.A., 2011 WL 1134451, at *4
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(N.D. Cal.) (plaintiffs' expenditure of time and energy to make

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financial disclosures in furtherance of the agreement, which they

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would have not been required to do under the original contract,
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constitutes consideration).

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with all of Defendants' requests could be construed as an

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acceptance of the offer for the TPP and consideration.

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Defendants allegedly breached the TPP contract when, on September

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7, 2010 and again on September 13, 2010, they increased the amount

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The fact that Plaintiffs complied

Thus,

of the loan payments, excusing Plaintiffs' further performance.

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Under these circumstances, the Court concludes that Plaintiffs'
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United States District Court
For the Northern District of California

10

allegations are sufficient to state a breach of contract claim.
Defendants' motion to dismiss this claim is denied.

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C. Breach of the Covenant of Good Faith and Fair Dealing

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The implied covenant of good faith and fair dealing

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supplements "the express contractual covenants, to prevent a

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contracting party from engaging in conduct that frustrates the

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other party's rights to the benefits of the agreement."

Waller v.

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Truck Ins. Exchange, Inc., 11 Cal. 4th 1, 36 (1995).

The covenant

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thus prevents a contracting party from taking an action which,

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although technically not a breach, frustrates the other party's

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right to the benefit of the contract.

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221 Cal. App. 3d 1136, 1153 (1990).

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right, however, the implied covenant has nothing upon which to act

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Love v. Fire Ins. Exchange,

"Absent that contractual

as a supplement, and should not be endowed with an existence

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independent of its contractual underpinnings."

Id.

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As discussed above, Plaintiffs have successfully alleged that

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Defendants breached the original loan agreement, an oral loan

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modification agreement and the TPP agreement.
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The allegations in

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the 1AC that, after Plaintiffs stopped making payments on their

2

loan for three months to become eligible for Defendants' loan

3

modification program, Defendants refused to accept monthly

4

payments from Plaintiffs and initiated foreclosure proceedings, is

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sufficient to state a claim for breach of the implied covenant.

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Likewise, the allegation that Defendants breached the TPP

7
agreement by raising the monthly payment to an amount they knew
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that Plaintiffs could not afford, is sufficient to state a claim

United States District Court
For the Northern District of California

10

for breach of the implied covenant of the oral agreement and the

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TPP agreement.

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D. Fraud and Negligent Misrepresentation

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In their original complaint, Plaintiffs alleged (1) that

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Defendants' statement that Plaintiffs had to be three months in

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arrears before they would be eligible for a loan modification was
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false, (2) that Defendants knew it was false but said it to induce
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18

Plaintiffs to default on their loan so Defendants would reap

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greater fees in the servicing of the loan, and (3) that Plaintiffs

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relied on Defendants' misrepresentation to their detriment.

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the August 15, 2011 Order, the Court found that these allegations

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were insufficient to meet Rule 9(b)'s heightened pleading

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In

requirement because Plaintiffs failed to allege who made the

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statement, what was false or misleading about it and why it was
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false.

The Court also found that Plaintiffs had not alleged

justifiable reliance.

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1

In their 1AC, Plaintiffs again allege that "Defendants

2

instructed Plaintiffs that they would only be eligible for a loan

3

modification if they were three months in arrears on mortgage

4

payments."

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fraud and negligent misrepresentation for the same reasons given

6

1AC ¶ 197.

This allegation fails to state a claim for

in the August 15, 2011 Order.

Plaintiffs' argument that they are

7
not required to provide more specificity because the facts lie in
8
9

the knowledge of the opposing party is unpersuasive.

The

United States District Court
For the Northern District of California

10

deficiencies are not merely by whom or when the allegedly

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fraudulent statement was made, but what was false about the

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statement and how Plaintiffs were justified in relying upon it.

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Therefore, Defendants' motion to dismiss the fraud and

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negligent misrepresentation claims is granted.

Because Plaintiffs

15
have been given an opportunity to amend these claims, dismissal is
16
without leave to amend.
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E. Unfair Competition Law

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The California Unfair Competition Law (UCL), Cal. Bus. &

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Prof. Code § 17200 et seq., prohibits “any unlawful, unfair or

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fraudulent business act or practice and unfair, deceptive, untrue

22

or misleading advertising.”

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Because section 17200 is written in

the disjunctive, it establishes three types of unfair competition.

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Davis v. Ford Motor Credit Co., 179 Cal. App. 4th 581, 593 (2009).
25
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Therefore, a practice may be prohibited as unfair or deceptive

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even if it is not unlawful and vice versa.

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Healthcare Corp., 50 Cal. App. 4th 632, 647 (1996).
12

Podolsky v. First

1
2

1. Unlawful Business Practices
In the August 15, 2011 Order, the Court found that Plaintiffs

3

had stated an unlawful business practices claim based on the fact

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that they had stated a claim for breach of an oral loan

5

modification agreement.

6

In the 1AC, Plaintiffs have also stated

claims for breach of the original loan agreement and breach of the

7
TPP agreement.

Under the reasoning in the August 15, 2011 Order,

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United States District Court
For the Northern District of California

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Plaintiffs state an unlawful business practices claim based on the
breach of all three agreements.
2. Unfair Business Practices

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In the August 15, 2011 Order, the Court adopted the unfair

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business practices standard enunciated in Camacho v. Automobile

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Club of Southern California, 142 Cal. App. 4th 1394, 1403 (2006),

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which applies three factors to determine if a practice is unfair:
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(1) the injury must be substantial; (2) the injury must not be
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outweighed by any countervailing benefits to consumers or

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competition; and (3) the injury must be one that the consumer

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could not reasonably have avoided.

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The Court found that Plaintiffs had failed to state an unfair

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business practices claim because they could have avoided injury if

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they had made timely mortgage payments.

However, the allegations

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in the 1AC are that Plaintiffs were current on their mortgage
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payments when they temporarily stopped paying them to become

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eligible for a loan modification and that, when they tendered

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their monthly payments to Defendants once again, Defendants
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1

rejected them.

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injury but were thwarted from doing so by Defendants.

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allegations are sufficient to allege a claim under the unfairness

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prong of the UCL.

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6

Thus, Plaintiffs allegedly attempted to avoid
These

3. Fraudulent Business Practices
In the August 15, 2011 Order, the Court dismissed this claim

7
because the allegations upon which it was based lacked the
8
9

required particularity.

Plaintiffs have not remedied this

United States District Court
For the Northern District of California

10

deficiency.

Therefore, this claim is dismissed without leave to

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amend.

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II. Motion to Strike Under Rule 12(f)

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A. Legal Standard

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Defendants move to strike the factual background allegations

15
in the 1AC on the ground that they are generalized, conclusory
16
allegations of wrongdoing that have no bearing on Plaintiffs'
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18

right to relief.

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allegations are not scandalous or impertinent and are relevant to

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understanding how the mortgage-lending industry works.

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Plaintiffs argue that the factual background

Pursuant to Federal Rule of Civil Procedure 12(f), the court
may strike from a pleading “any redundant, immaterial, impertinent
or scandalous matter.”

The purpose of a Rule 12(f) motion is to

24
avoid spending time and money litigating spurious issues.
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26

Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993),

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rev'd on other grounds, 510 U.S. 517 (1994).

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if it has no essential or important relationship to the claim for
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Matter is immaterial

1

relief plead.

2

and is not necessary to the issues in question in the case.

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Motions to strike are disfavored because they are often used as

4

delaying tactics and because of the limited importance of

5

pleadings in federal practice.

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Id.

Matter is impertinent if it does not pertain

1450, 1478 (C.D. Cal. 1996).

Id.

Bureerong v. Uvawas, 922 F. Supp.

They should not be granted unless it

7
is clear that the matter to be stricken could have no possible
8
9

bearing on the subject matter of the litigation.

Colaprico v. Sun

United States District Court
For the Northern District of California

10

Microsystems, Inc., 758 F. Supp. 1335, 1339 (N.D. Cal. 1991).

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The Court finds that most of the factual background

12

allegations are neither impertinent nor scandalous and denies the

13

motion to strike on these grounds.

14

relevant to any of Plaintiffs' original or amended claims:

However, the following are not

15
(1) allegations regarding documenting and processing foreclosures,
16
¶¶ 23-49; and (2) allegations regarding Congressional hearings and
17
18

reports, ¶¶ 101-92.

These allegations are stricken.

Defendants'

19

motion to dismiss under Rule 12(f) is granted in part.

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III. Motion to Strike Under Rule 23(d)(1)(D)

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Defendants move, under Federal Rule of Civil Procedure

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23(d)(1)(D), to strike the class allegations because Plaintiffs

23

have failed to allege an ascertainable class.

Plaintiffs respond

24
that they have clearly identified a class and reserve the right to
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26

redefine the class prior to a motion for class certification.

27

The granting of motions to strike class allegations before

28

discovery and in advance of a motion for class certification is
15

1

rare.

2

2011 WL 2682975, *21 (C.D. Cal.).

3

authority to do so if the complaint demonstrates that a class

4

action cannot be maintained.

Tietsworth v. Sears, 720 F. Supp. 2d

5

1123, 1146 (N.D. Cal. 2010).

To constitute an ascertainable

6

Cholakyan v. Mercedes-Benz USA, LLC, __ F. Supp. 2d __,
However, the court has

class, class members must have suffered an injury, without which

7
they have no standing to sue.

Id. at 1146-47.

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United States District Court
For the Northern District of California

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Plaintiffs define their proposed class, in relevant part, as
follows:
All persons who are or have been obligors on notes and/or
mortgages, and/or whose spouses or domestic partners have
been obligors on notes and/or mortgages, on property located
in the United States serviced by BOA, and/or one of its named
servicers within six years of the date of the original
complaint.
1AC ¶ 232.
Because the proposed class includes many members who have not

17

been injured, it is not certifiable.

18

class allegations on this ground is granted, with leave to amend.

19

The motion to strike the

CONCLUSION

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Based on the foregoing, Defendants' motion to dismiss is
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22

granted in part.

The following claims are dismissed without leave

23

to amend: (1) fraud; (2) negligent misrepresentation; (3) false

24

advertising; and (4) unlawful competition based upon fraudulent

25

business practices.

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cognizable: (1) breach of the original loan agreement, an oral

27

The following claims have been found

loan modification agreement and the TPP agreement; (2) breach of

28
16

1

the implied covenant based on these contracts; and (3) unlawful

2

competition based on unlawful and unfair business practices.

3

Defendants' motion to strike under Rule 12(f) is granted in part

4

and their motion to strike under Rule 23(d)(1)(D) is granted.

5

Dismissal of the class allegations is with leave to amend.

6

If

Plaintiffs wish to amend the class allegations, they must file an

7
amended complaint within seven days from the date of this order.
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9

United States District Court
For the Northern District of California

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A case management conference will be held on February 22, 2012 at
2 pm.
IT IS SO ORDERED.

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Dated: 12/16/2011

CLAUDIA WILKEN
United States District Judge

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