George B. Noble et al v. Caliber Home Loans, Inc. et al

Filing 67

ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS FIRST AMENDED COMPLAINT by Judge Claudia Wilken. (dtmS, COURT STAFF) (Filed on 10/13/2017)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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GEORGE B. NOBLE, et al.,
Plaintiffs,

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Case No. 17-cv-01053-CW

v.
CALIBER HOME LOANS, INC., et
al.,
Defendants.

ORDER GRANTING DEFENDANTS'
MOTIONS TO DISMISS FIRST
AMENDED COMPLAINT
(Dkt. Nos. 51 and 53)

United States District Court
Northern District of California

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Before the Court are motions by Defendants Caliber Home

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Loans, Inc. and U.S. Bank Trust, N.A., as a trustee for LSF9

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Master Participation Trust and Defendant Bank of America, N.A.

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(BANA) to dismiss the first amended complaint.

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filed oppositions and Defendants have filed replies.

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considered the papers submitted by the parties, the Court GRANTS

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both motions and dismisses the first amended complaint with

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prejudice.

Plaintiffs have
Having

BACKGROUND

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The Court provided the relevant factual background,

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including the allegations in the complaint and facts that are

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subject to judicial notice, in its order granting Defendants’

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first motions to dismiss.

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Court provides only the factual background necessary to the

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resolution of the present motions.

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See Docket No. 49.

Accordingly, the

Plaintiffs’ original complaint alleged the following claims:

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(1) violations of the federal Real Estate Settlement Procedures

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Act (RESPA), (2) violations of the California Homeowner Bill of

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Rights (HBOR), and (3) wrongful foreclosure.

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Defendants brought motions to dismiss the complaint.

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granted those motions.

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Dismiss).

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their allegations were insufficient.

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United States District Court
Northern District of California

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Docket No. 1.

Docket No. 49 (Order on Motions to

The Court dismissed Plaintiffs’ RESPA claim because
Id. at 4-6.

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The Court

dismissed Plaintiffs’ HBOR and wrongful foreclosure claims
because they are barred by claim preclusion.

Id. at 6-10.

The

Court granted Plaintiffs leave to amend, with the requirement
that the amended complaint “must remedy the defects explained in
[the] Order, may not assert new claims and may not contradict any
of the allegations of the original complaint.”

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The Court

Order on Motions

to Dismiss at 11.
On August 16, 2017, Plaintiffs filed their first amended
complaint (FAC), again alleging their claims for violation of
RESPA and HBOR, but omitting their claim for wrongful
foreclosure.

Docket No. 45.

Otherwise, the original complaint

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and the FAC are nearly identical in substance; the only

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substantive difference between the two is that the FAC adds the

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following sentence to paragraphs 21, 25, and 36: “Plaintiffs’ QWR

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reasonably identified Plaintiffs’ names as the borrowers on the

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account and also identified Plaintiffs’ loan account.”

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response, Defendants brought the present motions to dismiss the

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first amended complaint.

In

LEGAL STANDARD

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Id.

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

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claim showing that the pleader is entitled to relief.”

Fed. R.

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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

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

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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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inapplicable to legal conclusions; “[t]hreadbare recitals of the

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elements of a cause of action, supported by mere conclusory

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United States District Court
Northern District of California

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statements,” are not taken as true.

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Bell Atl. Corp. v.

In considering whether the

NL Indus., Inc. v. Kaplan, 792 F.2d
However, this principle is

Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (citing Twombly, 550 U.S. at 555).
The district court has discretion to grant or deny leave to

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amend.

While leave to amend should ordinarily be freely given,

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it may be denied for an apparent reason “such as undue delay, bad

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faith or dilatory motive on the part of the movant, repeated

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failure to cure deficiencies by amendments previously allowed,

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undue prejudice to the opposing party by virtue of allowance of

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the amendment, [or] futility of amendment.”

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U.S. 178, 182 (1962).
DISCUSSION

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Foman v. Davis, 371

I.

RESPA
In dismissing Plaintiffs’ RESPA claim, the Court identified

a number of deficiencies with Plaintiffs’ allegations:
First, they do not allege that their written requests
reasonably identified their names and account.
Second, Plaintiffs’ damages allegation is conclusory.
Furthermore, as discussed below, California does not
provide a cause of action to challenge the foreclosing
entity's authority to do so prior to the foreclosure
sale. Accordingly, Plaintiffs’ RESPA claim must be
dismissed.
Order on Motions to Dismiss at 6.
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The Court ordered Plaintiffs

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to “remedy the defects explained in” the Order on Motions to

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Dismiss in any amended complaint.

Id. at 11.

In their FAC, Plaintiffs alleged only one new fact:

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“Plaintiffs’ QWR reasonably identified Plaintiffs’ names as the

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borrowers on the account and also identified Plaintiffs’ loan

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account.”

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address the first deficiency identified by the Court’s Order, but

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ignores the second and third entirely.

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United States District Court
Northern District of California

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second deficiency, Plaintiffs plead no new facts to cure their

FAC ¶¶ 21, 25, 36.

This allegation attempts to

With respect to the

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original conclusory damages allegations.

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in the FAC are identical to the damages allegations in the

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original complaint.

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¶ 41; see also Order at 5-6.

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third deficiency identified in the Court’s Order on Motions to

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Dismiss, that California does not provide a cause of action to

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challenge the foreclosing entity's authority to do so prior to

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the foreclosure sale.

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dismissed.

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II.

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The damages allegations

Compare Original Complaint ¶ 41 and FAC
The FAC also does not address the

Accordingly, the RESPA claim must be

HBOR
The Court dismissed Plaintiffs’ HBOR claim because it is

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barred by claim preclusion.

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Again, Plaintiffs have not alleged any new facts that would alter

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the Court’s ruling on claim preclusion.

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analysis on claim preclusion still stands, barring Plaintiffs’

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HBOR claim.

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III. Leave to Amend

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Order on Motions to Dismiss at 10.

Accordingly, the Court’s

Because Plaintiffs did not even attempt to cure certain
deficiencies identified in the Court’s Order on Motions to
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Dismiss,1 the Court concludes that further amendment would be

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futile.

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Cir. 2008) (“Leave to amend may also be denied for repeated

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failure to cure deficiencies by previous amendment.”); Foman, 371

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U.S. at 182.

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Court and in the Napa County Superior Court to cure deficiencies

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in their claims against Defendants, yet they have repeatedly

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failed to do so.

Abagninin v. AMVAC Chem. Corp., 545 F.3d 733, 742 (9th

Plaintiffs have had multiple opportunities in this

United States District Court
Northern District of California

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CONCLUSION
The Court GRANTS Defendants’ motions to dismiss (Docket Nos.

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51 and 53) and dismisses the FAC with prejudice.

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enter judgment and close the file.

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own costs.

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The clerk shall

The parties shall bear their

IT IS SO ORDERED.

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Dated: October 13, 2017
CLAUDIA WILKEN
United States District Judge

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In opposition to the present motions, Plaintiffs do not
offer any explanation for why they failed to attempt to cure the
deficiencies identified in the Court’s Order on Motions to
Dismiss. Instead, Plaintiffs argue that their allegations are
sufficient to state a claim, repeating many of the arguments they
made in response to Defendants’ first motions to dismiss.
Plaintiffs’ argument constitutes an improper motion for
reconsideration, which is not permitted absent Court permission.
Civ. L.R. 7-9. Even considering the substance of Plaintiffs’
arguments, the Court finds that they lack merit.
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