Miller v. The Bank of New York et al

Filing 27

ORDER by Judge Hamilton granting 15 Motion to Dismiss (pjhlc2, COURT STAFF) (Filed on 10/24/2012)

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 7 JOELLE MILLER, 8 Plaintiff, No. C 12-2942 PJH 9 v. 11 For the Northern District of California United States District Court 10 THE BANK OF NEW YORK, et al., 12 ORDER GRANTING MOTION TO DISMISS Defendants. _______________________________/ 13 14 Defendants’ motion to dismiss plaintiff’s first amended complaint came on for 15 hearing before this court on October 17, 2012. Plaintiff Joelle Miller (“plaintiff”) appeared 16 through his counsel, Richard Paris. Defendants The Bank of New York Mellon (formerly 17 known as the Bank of New York) as trustee for the certificate holders of CWABS, Inc., 18 Mortgage Electronic Registration System, Bank of America, N.A., ReconTrust Company, 19 and Countrywide Home Loans (“defendants”) appeared through their counsel, Elizabeth 20 Nartker. Having read the papers filed in conjunction with the motion and carefully 21 considered the arguments and the relevant legal authority, and good cause appearing, the 22 court hereby GRANTS defendants’ motion, for the reasons stated at the hearing, and 23 summarized as follows.1 24 Plaintiff’s third, fourth, sixth, seventh, and tenth causes of action arise out of the 25 origination of plaintiff’s mortgage loan, which occurred in 2006. Plaintiff argues that the 26 relevant statutes of limitation should be equitably tolled, because he was unaware of the 27 28 1 The parties should pay particular attention to this order’s disposition of the eighth and ninth causes of action which, based on the court’s further review following the hearing, is different than that announced from the bench. 1 alleged violations until consulting with an attorney in 2012. However, plaintiff signed the 2 loan origination documents, and has had continuous access to them since 2006. Thus, 3 plaintiff cannot show that he was unable to discover the alleged violations before 2012. 4 See Brookwood v. Bank of America, 45 Cal.App.4th 1667, 1674 (1996) (“Reasonable 5 diligence requires the reading of a contract before signing it.”). Accordingly, plaintiff’s third, 6 fourth, sixth, seventh, and tenth causes of action are DISMISSED as time-barred. As 7 amendment would be futile, the dismissals are with prejudice. 8 9 11 For the Northern District of California United States District Court 10 Plaintiff’s eighth cause of action is for “injunctive relief,” which is properly pled as a remedy, rather than as a stand-alone cause of action. Thus, plaintiff’s eighth cause of action is DISMISSED with prejudice. Plaintiff’s first, second, and fifth causes of action are based on alleged defects in the 12 chain of title that render defendants’ foreclosure invalid. The court finds that plaintiff has 13 not adequately alleged any such gap in the chain of title, and therefore DISMISSES 14 plaintiff’s first, second, and fifth causes of action. However, because these claims are not 15 time-barred, plaintiff shall have an opportunity to amend these causes of action. 16 Plaintiff’s ninth cause of action is based on alleged fraud in the loan modification 17 process. The court finds that plaintiff has not identified any specific misrepresentation 18 made by defendants, and therefore DISMISSES this cause of action with leave to amend. 19 Plaintiff shall have until November 14, 2012 to file an amended complaint in 20 accordance with this order. Plaintiff may amend the four causes of action as directed 21 above, but may not add new causes of action or new parties without leave of court or a 22 stipulation of all parties. Defendants’ response is due no later than 21 days after plaintiff’s 23 amended complaint is filed. If the response is another motion to dismiss, it should be 24 noticed in accordance with the local rules, but the court will not likely hold any further 25 hearings on the pleadings. 26 Finally, defendants have requested that the court take judicial notice of loan 27 documents relating to the chain of title for the property at issue in this case. Because these 28 documents are referenced in plaintiff’s complaint, the court GRANTS defendants’ request 2 1 2 3 for judicial notice. IT IS SO ORDERED. Dated: October 24, 2012 ______________________________ PHYLLIS J. HAMILTON United States District Judge 4 5 6 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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