Cootey et al v. Countrywide Home Loans, Inc. et al
ORDER Granting Defendants Countrywide Home Loans, Inc. And BAC Home Loans Servicing, LP's Motion to Dismiss re 9 . Signed by JUDGE J. MICHAEL SEABRIGHT on 6/13/11. (gls, )CERTIFICATE OF SERVICEParticipants regi stered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
TIMOTHY A. COOTEY and
DELORES A. COOTEY,
COUNTRYWIDE HOME LOANS,
INC.; BAC HOME LOANS
SERVICING, LP; JOHN DOES 1-10; )
JANE ROES 1-10; DOE
CORPORATIONS, PARTNERSHIPS )
AND OTHER ENTITIES 1-10,
CIVIL NO. 11-00152 JMS/KSC
HOME LOANS, INC. AND BAC
HOME LOANS SERVICING, LP’S
MOTION TO DISMISS
ORDER GRANTING DEFENDANTS COUNTRYWIDE HOME LOANS,
INC. AND BAC HOME LOANS SERVICING, LP’S MOTION TO DISMISS
On March 9, 2011, Plaintiffs Timothy A. Cootey and Delores A.
Cootey (“Plaintiffs”) filed this action alleging claims against Defendants
Countrywide Home Loans, Inc. (“Countrywide”) and BAC Home Loans Servicing,
LP (“BAC”) (collectively, “Defendants”), for violations of the Truth in Lending
Act (“TILA”), the Real Estate Settlement Procedures Act of 1974 (“RESPA”), the
Fair Credit Reporting Act (“FCRA”), the Equal Credit Opportunity Act (“ECOA”),
and various state law claims stemming from a mortgage transaction concerning real
property located at 64-212 Puu Pulehu Loop, Kamuela, Hawaii 96743 (the “subject
Currently before the court is Defendants’ Motion to Dismiss, in which
they argue that the Complaint fails to state a cognizable claim. For the reasons set
forth below, the court GRANTS the Motion and dismisses the Complaint with
leave to amend as to certain claims.
The allegations of the Complaint tell a disjointed series of events in
non-linear fashion, making it difficult to discern the basis of Plaintiffs’ claims.
Piecing together the allegations,1 the court gleans the following:
On December 31, 2007, Plaintiffs signed a mortgage on the subject
property in favor of Countrywide to secure a $331,500 loan. Defs.’ Ex. A.2
Although not completely clear, it appears that Plaintiffs took this mortgage to
purchase the subject property. Compl. ¶ 7.
In their Opposition, Plaintiffs assert several additional facts and/or theories for relief
and even present Declarations. The court’s review of the allegations for a Motion to Dismiss,
however, is limited the allegations in the Complaint and any judicially-noticed facts.
Defendants request the court to take judicial notice of the mortgage, and in response
Plaintiff argues that the document is in dispute. Given that the mortgage is a public document,
the court takes judicial notice of it. See Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th
Cir. 1988) (providing that a court may “take judicial notice of matters of public record outside
the pleadings and consider them for purposes of a motion to dismiss”) (quotations omitted).
The Complaint asserts that in consummating the loan, BAC and/or
Countrywide allegedly (1) failed to disclose that Plaintiffs could compare loan
terms with other lenders; (2) failed to provide Plaintiffs sufficient time to compare
loan terms with other lenders; (3) failed to disclose Plaintiffs’ consumer rights or
the interest rates that Plaintiffs would have to pay over the lifetime of the loan;
(4) overstated Plaintiffs’ income on the loan application to increase Plaintiffs’
chance of qualifying for a loan; (5) failed to inform Plaintiffs that Defendants did
not follow reasonable underwriting guidelines and that the loan would be
securitized; and (6) failed to provide various documents including a completed
copy of the loan application, the initial loan disclosures, a signed and dated final
truth in lending statement, a signed and dated good faith estimate, a signed and
dated Servicing Transfer Disclosure and adjustable rate booklet, a final HUD-1
Settlement Statement, the Gramm Leach Bailey Act disclosures, or a statement of
their rights under the Fair and Accurate Credit Transaction Act. Compl. ¶¶ 17-36.
Despite the Complaint’s allegations that BAC engaged in misconduct
in the consummation of the mortgage loan, the Complaint alleges that the loan
and/or mortgage were subsequently transferred to BAC such that it is unclear
precisely what role BAC played in the original transaction. Id. ¶ 37.
Plaintiffs suffered financial hardship and sought modification of the
loan. Id. ¶¶ 8, 39-40. It is unclear what happened next. On the one hand, the
Complaint asserts that Plaintiffs received and performed under a trial loan
modification, yet Defendants sought foreclosure after they incorrectly asserted that
Plaintiffs had missed a payment. Id. ¶¶ 10-16. The Complaint also suggests,
however, that Plaintiffs never received any modification. Specifically, the
Complaint asserts that Plaintiffs sought loan modification and while they were led
to believe that they would qualify for a loan modification, Defendants sought
foreclosure. Id. ¶¶ 40-41.
The Complaint alleges that “Defendant” failed to negotiate in good
faith and allow Plaintiffs time to receive a loan modification. Id. ¶¶ 42-43.
On March 9, 2011, Plaintiffs filed this action. The Complaint alleges
claims titled (1) Violation of Statutory Duties (Count I); (2) Fraud (Count II);
(3) Mistake (Count III); (4) Unconscionability (Count IV); (5) Unfair and
Deceptive Practices (Count V); (6) Breach of Fiduciary Duty (Count VI);
(7) Failure to Act in Good Faith (Count VII); (8) Injunctive Relief (Count VIII);
(9) Recoupment (Count IX); (10) Unjust Enrichment (Count X); and
(11) Negligent and/or Intentional Infliction of Emotional Distress (“NIED” and/or
“IIED”) (Count XI).
On April 4, 2011, Defendants filed their Motion to Dismiss. Plaintiffs
filed an Opposition on May 20, 2011, and Defendants filed a Reply on May 27,
2011. Pursuant to Local Rule 7.2(d), the court determines this Motion without a
III. STANDARDS OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) permits a motion to dismiss
a claim for “failure to state a claim upon which relief can be granted[.]”
“To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Weber v. Dep’t of Veterans
Affairs, 521 F.3d 1061, 1065 (9th Cir. 2008). This tenet -- that the court must
accept as true all of the allegations contained in the complaint -- “is inapplicable to
legal conclusions.” Iqbal, 129 S. Ct. at 1949. Accordingly, “[t]hreadbare recitals
of the elements of a cause of action, supported by mere conclusory statements, do
not suffice.” Id. (citing Twombly, 550 U.S. at 555). Rather, “[a] claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.”
Id. (citing Twombly, 550 U.S. at 556). Factual allegations that only permit the
court to infer “the mere possibility of misconduct” do not show that the pleader is
entitled to relief. Id. at 1950.
Federal Rule of Civil Procedure 9(b)
Federal Rule of Civil Procedure 9(b) requires that “[i]n all averments
of fraud or mistake, the circumstances constituting fraud or mistake shall be stated
with particularity.” “Rule 9(b) requires particularized allegations of the
circumstances constituting fraud.” In re GlenFed, Inc. Sec. Litig., 42 F.3d 1541,
1547-48 (9th Cir. 1994) (en banc) (emphasis in original), superseded on other
grounds by 15 U.S.C. § 78u-4.
In their pleadings, Plaintiffs must include the time, place, and nature
of the alleged fraud; “mere conclusory allegations of fraud are insufficient” to
satisfy this requirement. Id. (citation and quotation signals omitted). Where there
are multiple defendants, Plaintiffs cannot “lump multiple defendants together” and
instead must “differentiate their allegations [between defendants].” Destfino v.
Kennedy, 630 F.3d 952, 958 (9th Cir. 2011) (citation omitted). However,
“[m]alice, intent, knowledge, and other condition of mind of a person may be
averred generally.” Fed. R. Civ. P. 9(b); see also In re GlenFed, Inc. Sec. Litig, 42
F.3d at 1547 (“We conclude that plaintiffs may aver scienter . . . simply by saying
that scienter existed.”); Walling v. Beverly Enter., 476 F.2d 393, 397 (9th Cir.
1973) (Rule 9(b) “only requires the identification of the circumstances constituting
fraud so that the defendant can prepare an adequate answer from the allegations.”
A motion to dismiss for failure to plead with particularity is the
functional equivalent of a motion to dismiss under Fed. R. Civ. P. 12(b)(6). Vess v.
Ciba-Geigy Corp. USA, 317 F.3d 1097, 1107 (9th Cir. 2003). In considering a
motion to dismiss, the court is not deciding the issue of “whether a plaintiff will
ultimately prevail but whether the claimant is entitled to offer evidence to support
claims.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds
by Harlow v. Fitzgerald, 457 U.S. 800 (1982).
Over the last two years, this court has seen a dramatic increase in
mortgage foreclosure related cases.3 Plaintiffs’ counsel has brought several of
these actions and the courts in this District have entered numerous orders outlining
the pleading requirements for the various claims the court sees time and again.
See, e.g., Rymal v. Bank of Am., 2011 WL 1361441 (D. Haw. Apr. 11, 2011)
In 2010, 141 mortgage foreclosure and/or TILA actions were filed in the District of
Hawaii, compared to 2007 when only eight cases were filed and 2008 when eleven cases were
filed. As of May 24, 2011, sixty-two new mortgage foreclosure cases have been filed, setting a
pace on par with 2010.
(dismissing similar complaint); Casino v. Bank of Am., 2011 WL 1704100 (D.
Haw. May 4, 2011) (similar complaint); Letvin v. Amera Mortg. Corp., 2011 WL
1603635 (D. Haw. Apr. 27, 2011) (similar complaint); Enriquez v. Aurora Loan
Servs., LLC, 2011 WL 1103809 (D. Haw. Mar. 22, 2011) (dismissing complaint
and issuing order to show cause what sanctions should not issue against Plaintiff’s
counsel). In fact, the claims in this action are almost verbatim those alleged in
Kapahu v. BAC Home Loans Servicing, LP, 2010 WL 2734774 (D. Haw, July 8,
2010), which was brought by the same counsel, and which this court dismissed for
failure to state a claim on July 8, 2010, eight months prior to the March 9, 2011
filing of the instant complaint. This Complaint also alleges the same claims that
this court recently dismissed in Rey v. Countrywide Home Loans, Inc., 2011 WL
2160679 (D. Haw. June 1, 2011). As this court has warned Plaintiffs’ counsel
once already in Rey, these deficient complaints result in a waste of parties’ and this
court’s resources, and Plaintiffs’ counsel must be mindful of his duty to bring
claims that are “warranted by existing law or by a nonfrivolous argument for
extending, modifying, or reversing existing law or for establishing new law.” Fed.
R. Civ. P. 11(b)(2).
As largely explained in Rey, the court again proceeds to explain why
this Complaint fails to state a claim upon which relief can be granted.
Failure to Plead Facts as to Each Defendant
As an initial matter, Defendants argue that the Complaint should be
dismissed because it is unclear exactly what Plaintiffs are asserting against each
particular Defendant. Defs.’ Mot. at 5-6. The court agrees -- none of the
individual counts of the Complaint makes any particular allegations as to any
specific Defendant, and the general allegations of the Complaint for the most part
lump Countrywide and BAC together. Such conclusory pleading fails to state a
claim that is plausible on its face as to any Defendant.
In opposition, Plaintiffs assert that BAC and Countrywide are alter
egos of each other because Bank of America, the parent company of BAC,
purchased Countrywide. Pls.’ Opp’n at 10-11. Plaintiffs ignore, however, that the
focus of a motion to dismiss is limited to the allegations of the Complaint, and
Plaintiffs fail to make such allegations in their Complaint. Accordingly, the court
finds that as a general matter, the Complaint fails to state a claim as to any
Violation of Statutory Duties (Count I)
Count I, labeled “Violation of Statutory Duties,” alleges that
“Defendant or one or more of them” violated “various statutory duties pursuant to
the Real Estate Settlement Procedures Act (12 USC 2601 et seq.), the Equal Credit
Opportunity Act (Reg. B, 12 CFR 202),  the Fair Credit Reporting Act (15 USC
1681), and the Truth in Lending Act (12 CFR Sec. 226.23(h) et alia.” Compl.
As the court has already explained in Kapahu, 2010 WL 2734774, at
*4, and Rey, 2011 WL 2160679, at *4, this claim fails because although the
background of the Complaint outlines a laundry list of Defendants’ alleged failures
to provide various documents and information to Plaintiffs, Count I fails to identify
what particular conduct Plaintiffs assert violates each of these laws, or even the
particular provisions of these laws that Defendants allegedly violated. By failing
to put forth any specific factual or legal allegations -- and link those allegations to
the particular statutory violations -- Plaintiffs do not provide Defendants with fair
notice of the wrongs they have allegedly committed. This ground alone warrants
dismissal of Count I.
Because the court grants Plaintiffs leave to amend as to some claims
potentially encompassed in Count I, the court once again attempts to provide
Plaintiffs’ counsel with further guidance. And when examining all of the facts
alleged in the Complaint, the court agrees with Defendants that Plaintiffs have
failed to allege a cognizable claim for violation of TILA, RESPA, ECOA, or the
FCRA. The court addresses these provisions in turn.
Defendants argue, among other things, that Plaintiffs’ TILA claims for
damages and rescission are time-barred. To the extent the court can decipher the
allegations of the Complaint, the court agrees.
Damages under TILA
Any claim for damages under TILA must be brought “within one year
from the date of the occurrence of the violation.” 15 U.S.C. § 1640(e). For
violations of TILA’s disclosure requirements, this one-year period generally begins
to run from the date of consummation of the loan. King v. California, 784 F.2d
910, 915 (9th Cir. 1986). Equitable tolling may nonetheless apply in certain
[T]he limitations period in Section 1640(e) runs from the
date of consummation of the transaction but . . . the
doctrine of equitable tolling may, in the appropriate
circumstances, suspend the limitations period until the
borrower discovers or had reasonable opportunity to
discover the fraud or nondisclosures that form the basis
of the TILA action. Therefore, as a general rule, the
limitations period starts at the consummation of the
transaction. The district courts, however, can evaluate
specific claims of fraudulent concealment and equitable
tolling to determine if the general rule would be unjust or
frustrate the purpose of the Act and adjust the limitations
Id. Where the basis of equitable tolling is fraudulent concealment, it must be pled
with particularity under Rule 9(b) of the Federal Rules of Civil Procedure. 389
Orange St. Partners v. Arnold, 179 F.3d 656, 662 (9th Cir. 1999).
Although the Complaint provides no allegations as to when the
mortgage was entered into and otherwise confusingly starts its recitation of facts on
Plaintiffs’ efforts at loan modification, Plaintiffs entered into the mortgage loan
transaction in December 2007. See Defs.’ Ex. A. Accordingly, Plaintiffs’ TILA
claim for damages is time-barred unless equitable tolling applies -- it was brought
over three years after consummation of the loan transaction. With that said,
however, the Complaint pleads no facts indicating that any Defendant prevented
Plaintiffs from discovering the alleged TILA violation or caused Plaintiffs to allow
the filing deadline to pass. See, e.g., O’Donnell v. Vencor Inc., 466 F.3d 1104,
1112 (9th Cir. 2006) (“Equitable tolling is generally applied in situations ‘where
the claimant has actively pursued his judicial remedies by filing a defective
pleading during the statutory period, or where the complainant has been induced or
tricked by his adversary’s misconduct into allowing the filing deadline to pass.’”)
(quoting Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990)). Without any
factual allegations that support the inference that Plaintiffs did not have a
reasonable opportunity to discover the TILA violations, the Complaint does not
support tolling the statute of limitations. See Von Saher v. Norton Simon Museum
of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010) (granting leave to amend
complaint to allege lack of reasonable notice to establish diligence where the facts
alleged did not foreclose lack of reasonable notice as a matter of law); see also
Meyer v. Ameriquest Mortg. Co., 342 F.3d 899, 902-03 (9th Cir. 2003) (rejecting
argument for equitable tolling of the TILA claim because plaintiff was in full
possession of all loan documents and did not allege any actions that would have
prevented discovery of the alleged TILA violations).
In opposition, Plaintiffs assert that they were “tricked” by Defendants
into letting the filing date pass. Pls.’ Opp’n at 18-19. No such allegations appear
in the Complaint. But even if they did, they appear irrelevant -- such allegations
do not address when Plaintiffs first learned of the TILA violations and why they
did not learn of them earlier.
Accordingly, Plaintiffs’ TILA claim for damages is DISMISSED with
leave to amend.
Rescission under TILA
Plaintiffs’ claim for rescission pursuant to TILA is time-barred. The
right to rescission expires “three years after the date of consummation of the
transaction or upon the sale of the property, whichever occurs first[.]” 15 U.S.C.
§ 1635(f). Section 1635(f) is an absolute statute of repose barring “any [TILA
rescission] claims filed more than three years after the consummation of the
transaction.” Miguel v. Country Funding Corp., 309 F.3d 1161, 1164 (9th Cir.
2002) (citing King, 784 F.2d at 913). As such, the three-year period is not subject
to equitable tolling. See Beach v. Ocwen Fed. Bank, 523 U.S. 410, 412 (1998)
(stating that “§ 1635(f) completely extinguishes the right of rescission at the end of
the 3-year period,” even if a lender failed to make the required disclosures).
Plaintiffs entered into the loan transaction in December 2007, and did not bring
this action until over three years later in March 2011. Plaintiffs’ claim for TILA
rescission therefore fails as barred by the statute of limitations.
Accordingly, the court DISMISSES Plaintiffs’ TILA claim for
rescission without leave to amend.
The Complaint includes no allegations that appear to state violations
of RESPA. Plaintiffs’ Opposition confirms this fact -- Plaintiffs assert that they
believe they can show that they sent a qualified written request to the “lender”
asking for several documents, and that the “lender” failed to provide this
information. Pls.’ Opp’n at 16.4 Given that these facts are well within Plaintiffs’
Plaintiffs also assert additional bad acts by Defendants, which similarly are not
included in the Complaint. To the extent Plaintiffs believe they can assert other violations of
RESPA, they should be aware that in general, only three sections of RESPA create a private
own knowledge, the court rejects Plaintiffs’ assertion that they need discovery on
Further, to the extent Plaintiffs assert a RESPA violation concerning
events that occurred during consummation of the mortgage loan, the statute of
limitations for a RESPA claim is either one or three years from the date of the
violation, depending on the type of violation. Specifically, 12 U.S.C. § 2614
Any action pursuant to the provisions of section 2605,
2607, or 2608 of this title may be brought in the United
States district court or in any other court of competent
jurisdiction, for the district in which the property
involved is located, or where the violation is alleged to
have occurred, within 3 years in the case of a violation of
section 2605 of this title and 1 year in the case of a
violation of section 2607 or 2608 of this title from the
date of the occurrence of the violation . . . .
While the Ninth Circuit has not addressed the precise issue, this court has found
that equitable tolling may apply to a RESPA claim. See, e.g., Amina v. WMC
Mortg. Corp., 2011 WL 1869835, at *8 (D. Haw. May 16, 2011); Sakugawa v.
right of action: (1) 12 U.S.C. § 2605 requiring disclosure to a loan applicant of whether the
servicing of the loan may be assigned, sold or transferred; notice to the borrower at the time of
transfer; and responses by the loan servicer to qualified written requests by the borrower; (2) 12
U.S.C. § 2607 prohibiting kickbacks for real estate settlement services; and (3) 12 U.S.C. § 2608
prohibiting sellers from requiring buyers to use a specific title insurer as a condition of its sale.
See also Padilla v. One West Bank, 2010 WL 5300900, at *5 (N.D. Cal. Dec. 20, 2010); Glover
v. Fremont Inv. & Loan, 2009 WL 5114001, at *5 (N.D. Cal. Dec. 18, 2009).
IndyMac Bank, F.S.B., 2010 WL 4909574, at *4 (D. Haw. Nov. 24, 2010); see
also, McGinley v. Am. Home Mortg. Servicing, Inc., 2010 WL 4065826, at *7
(W.D. Wash. Oct. 15, 2010); Palestini v. Homecomings Fin., LLC, 2010 WL
3339459, at *4 (S.D. Cal. Aug. 23, 2010); Bonner v. Select Portfolio Servicing,
Inc., 2010 WL 2925172, at *12 (N.D. Cal. July 26, 2010).
As stated above for Plaintiffs’ TILA claim for damages, Plaintiffs
brought this action well past either the one- or three-year statute of limitations for
RESPA violations and the Complaint includes no allegations suggesting that
equitable tolling may apply. The court therefore DISMISSES Plaintiffs’ RESPA
claim with leave to amend.
As pleaded, the court cannot discern the basis for an ECOA violation.
Plaintiffs’ Opposition appears to assert that Defendants failed to provide Plaintiffs
a copy of the appraisal report. Pls.’ Opp’n at 22.
Under ECOA, “[e]ach creditor shall promptly furnish an applicant,
upon written request by the applicant made within a reasonable period of time of
the application, a copy of the appraisal report used in connection with the
applicant’s application for a loan that is or would have been secured by a lien on
residential real property.” 15 U.S.C. § 1691(e). A claim for violation of ECOA
must be brought no later than two years “from the date of occurrence of the
violation,” 15 U.S.C. § 1691e(f), but equitable tolling may apply under certain
circumstances. See Hafiz v. Greenpoint Mortg. Funding, Inc., 652 F. Supp. 2d
1039, 1045 (N.D. Cal. 2009).
The Complaint fails to assert a necessary prerequisite to Plaintiffs’
ECOA claim -- that Plaintiffs made a written request for the appraisal report within
a reasonable time of his application. Further, even if Plaintiffs did include such an
allegation, Plaintiffs applied for this loan in December 2007 and the Complaint
includes no allegations indicating that equitable tolling applies. The court
therefore DISMISSES Plaintiffs’ ECOA claim with leave to amend.
Again, the court is unable to discern the basis of this claim. Plaintiffs
assert, however, that the basis of this claim is that BAC “misapplied payments and
then reported inaccurate or improper information to credit reporting agencies
. . . . ” Pls.’ Opp’n at 24. Even if the Complaint included such allegations, they
would be insufficient to state a claim for violation of the FCRA.5
Specifically, pursuant to 15 U.S.C. § 1681s-2(a), furnishers of credit
information have a duty to provide accurate information to a credit reporting
Plaintiffs also assert in their Opposition that Defendants have violated the Fair and
Accurate Credit Transaction Act, but no such allegations appear in the Complaint.
agency. See also Gorman v. Wolpoff & Abramson, LLP, 584 F.3d 1147, 1154 (9th
Cir. 2009). These duties are enforceable only by federal and state agencies. See
id; see also Nelson v. Chase Manhattan Mortg. Corp., 282 F.3d 1057, 1059-60 (9th
Cir. 2002); 15 U.S.C. § 1681s-2(d) (noting that duties created under § 1681s-2(a)
are enforced exclusively by the Federal agencies and officials and State officials).
An individual may bring a private cause of action only under 15 U.S.C. § 1681s2(b), where the furnisher is given notice from a credit reporting agency of a dispute
and fails to investigate within specified time limits. See also Nelson, 282 F.3d at
1060. In other words, “[i]t is only after (1) a consumer has notified a credit
reporting agency of an inaccuracy, (2) the agency has notified the furnisher, and
(3) the furnisher has failed to take action, that a consumer may sue the furnisher.”
See Diana I Am v. Nat’l City Mortg. Co., 2010 WL 571936, at *10 (D. Haw. Feb.
The Complaint includes no allegations that Plaintiffs complied with
these prerequisites to bringing this claim -- Plaintiffs do not assert that (1) they
notified any credit reporting agency of any inaccuracies in their credit report,
(2) the credit reporting agency notified any Defendant, or (3) that such Defendant,
upon notification, failed to investigate. Accordingly, the court DISMISSES
Plaintiffs’ FCRA claim with leave to amend.
Fraud (Count II) and Mistake (Count III)
Count II, titled “Fraud,” alleges that:
Defendant or one or more of them breached their duties
by misrepresenting [Plaintiffs’] income, by
misrepresenting and/or concealing material facts, such as
the misstatement of [Plaintiffs’] income, the failure of
defendant or one or more of them to follow reasonable
underwriting guidelines to qualify [Plaintiffs] for a loan,
properly disclose the true terms of the loan, properly
disclose the true amount of interest Plaintiffs would have
to pay over the life of the loan, that property values were
declining and would likely continue to do so in the
foreseeable future, that they were likely to exhaust their
savings and then not be able to pay the subject note, had
a high likelihood of defaulting on the note, [and] that
there would not be sufficient equity in the Property if
they tried to refinance.
Compl. ¶ 58.
Count III, titled “Mistake,” pleads in the alternative that if fraud is not
found, then “the transaction was entered into based upon mutual mistake which
entitles [Plaintiffs] to rescission of the note and mortgage and/or reimbursement of
all monies that were paid . . . .” Id. ¶ 64.
As the court already explained in Kapahu and Rey, these allegations
are insufficient to meet Plaintiffs’ burden under the rigorous requirements of Rule
9 that apply to these claims. See Fed. R. Civ. P. 9(b) (requiring a party to state
with particularity the circumstances constituting fraud or mistake). Instead, these
allegations merely give lip service to the basic elements of a fraud and/or mistake
claim, and fail to assert “particularized allegations of the circumstances
constituting fraud” or mistake such as the time, place, and nature of the alleged
actions, and how each Defendant participated in the fraud and/or mistake. See In
re GlenFed, Inc. Sec. Litig., 42 F.3d at 1547-48. Indeed, the Complaint leaves
completely unanswered precisely what actions each Defendant took that can form
the basis of a fraud or mistake claim. See also Moore v. Kayport Package Express,
Inc., 885 F.2d 531, 540 (9th Cir. 1989) (stating that Rule 9(b) requires a plaintiff to
attribute particular fraudulent statements or acts to individual defendants).
In opposition, Plaintiffs assert that discovery is necessary to determine
Defendants’ wrongful acts that are the basis of the fraud claim. Pls.’ Opp’n at 2527. The court rejects this argument -- Plaintiffs base the fraud claim on
misrepresentations made during consummation of the loan; certainly Plaintiffs can
identify who they entered into the mortgage with, when this transaction took place,
and how each Defendant made misrepresentations to her in that process. Indeed,
Plaintiffs have already asserted several new facts they believe support this claim
and that were not included in the Complaint. See id. at 26.
The court therefore DISMISSES Plaintiffs’ claims for fraud and
mistake with leave to amend.
Unconscionability (Count IV)
The Complaint alleges that Plaintiffs “did not understand the loan
transaction, or the true terms of the note and mortgage, and was not fully and
timely informed of the same by defendant or one or more of them,” such that “the
terms and conditions of the note and mortgage are unconscionable.” Compl.
“Unconscionability” is generally a defense to the enforcement of a
contract, and is not a proper claim for affirmative relief. See, e.g., Gaitan v. Mortg.
Elec. Registration Sys., 2009 WL 3244729, at *13 (C.D. Cal. Oct. 5, 2009)
(“Unconscionability may be raised as a defense in a contract claim, or as a legal
argument in support of some other claim, but it does not constitute a claim on its
own.”); Carey v. Lincoln Loan Co., 125 P.3d 814, 829 (Or. App. 2005)
(“[U]nconscionability is not a basis for a separate claim for relief.”); see also
Barnard v. Home Depot U.S.A., Inc., 2006 WL 3063430, at *3 n.3 (W.D. Tex. Oct.
27, 2006) (citing numerous cases for the proposition that neither the common law
or the UCC allows affirmative relief for unconscionability).
To the extent unconscionability can be addressed affirmatively as part
of a different -- that is, independent -- cause of action, such a claim “is asserted to
prevent the enforcement of a contract whose terms are unconscionable.” Skaggs v.
HSBC Bank USA, N.A., 2010 WL 5390127, at *3 (D. Haw. Dec. 22, 2010)
(emphasis in original).6 In Skaggs, this court dismissed a “claim” for
unconscionability because it challenged only conduct such as “obtaining mortgages
under false pretenses and by charging Plaintiff inflated and unnecessary charges,”
and “failing to give Plaintiff required documents in a timely manner,” but not any
specific contractual term. Id. Likewise, the Complaint fails to challenge any
particular term as unconscionable in an affirmative claim where the
unconscionable terms may be relevant to that particular claim.
Accordingly, Count IV is DISMISSED with leave to amend.
Unfair and Deceptive Acts or Practices (Count V)
The Complaint alleges that the “wrongful acts and/or omissions of
defendant or one or more of them constitute unfair and deceptive acts and practices
in the conduct of business in violation of federal (15 USC Sec. 1802 et seq.) and
state laws (HRS Sec. 480-2 and 480-13).” Compl. ¶ 70.
In Skaggs, this court noted in dicta that “at least one Hawaii court has addressed
unconscionability when raised as a claim seeking rescission.” 2010 WL 5390127, at *3 n.2
(citing Thompson v. AIG Haw. Ins. Co., 111 Haw. 413, 142 P.3d 277 (2006)). The court did not
mean to suggest that an affirmative claim for “unconscionability” without more is a proper cause
of action. Even in Thompson, the operative complaint did not assert a separate count for
rescission or unconscionability. See Thompson, 111 Haw. at 417, 142 P.3d at 281 (indicating the
specific counts were for negligence, fraud, breach of duty, and unfair and deceptive trade
practices under HRS § 480-2). In Thompson, the remedy of rescission was based on an
As Kapahu and Rey clearly explained to Plaintiffs’ counsel, the
federal statute Plaintiffs cite -- 15 U.S.C. § 1802 et seq. -- is found in the United
States Code chapter on Newspaper Preservation. It therefore appears that
Plaintiffs’ counsel, who apparently incorporates language wholesale from previous
complaints without any editing, has once again cited this statute in error.
As for Plaintiffs’ allegation that Defendants violated Hawaii state law,
Count V is wholly conclusory, not even paying lip service to the general elements
of a claim for violation of Hawaii Revised Statutes (“HRS”) § 480-13. See Haw.
Med. Ass’n v. Haw. Med. Serv. Ass’n, Inc., 113 Haw. 77, 113-14, 148 P.3d 1179,
1215-16 (2006) (stating that there are “three elements essential to recovery under
H.R.S. § 480–13: (1) a violation of H.R.S. chapter 480; (2) injury to the plaintiff’s
business or property resulting from such violation; and (3) proof of the amount of
damages”). Further, where a Chapter 480 claim is based on fraudulent acts, a
plaintiff must plead such claim with particularity. See Smallwood v. NCsoft Corp.,
730 F. Supp. 2d 1213, 1232-33 (D. Haw. 2010) (relying on Kearns v. Ford Motor
Co., 567 F.3d 1120, 1122 (9th Cir. 2009), to find that Chapter 480 claims that
sound in fraud must be pled with particularity). As pled, it appears that at least
some of Plaintiffs’ allegations in support of their Chapter 480 claim sound in fraud
given that they incorporate by reference their (deficient) allegations of fraud. See
Compl. ¶ 69. But none of the allegations asserts “particularized allegations of the
circumstances constituting fraud” such as the time, place, and nature of the alleged
fraud, and how each Defendant participated in the fraud. See In re GlenFed, Inc.
Sec. Litig., 42 F.3d at 1547-48. Accordingly, Plaintiffs’ allegations fail to meet
either Rule 8’s general pleading requirement or Rule 9(b)’s particularity
Count V is DISMISSED with leave to amend.
Breach of Fiduciary Duty (Count VI)
Count VI asserts that Plaintiffs trusted “defendant and one or more of
them” in entering into the loan, and that “defendant or one or more of them
breached their fiduciary duties to [Plaintiffs]” by, among other things, “making
misrepresentations of material fact, omitting to make disclosures of various
material facts, [and] not properly qualifying them [sic] for the subject loan.”
Compl. ¶¶ 74-75.
These allegations fail to state a claim against Defendants. In McCarty
v. GCP Mgmt., LLC, 2010 WL 4812763 (D. Haw. Nov. 17, 2010), this court set
forth a myriad of caselaw for the well-settled proposition that generally a
borrower-lender relationship is not fiduciary in nature:
Lenders generally owe no fiduciary duties to their
borrowers. See, e.g., Nymark v. Heart Fed. Sav. & Loan
Ass’n, 283 Cal. Rptr. 53, 54 n.1 (Cal. App. 1991) (“The
relationship between a lending institution and its
borrower-client is not fiduciary in nature.”); Miller v.
U.S. Bank of Wash., 865 P.2d 536, 543 (Wash. App.
1994) (“The general rule . . . is that a lender is not a
fiduciary of its borrower.”); Huntington Mortg. Co. v.
DeBrota, 703 N.E.2d 160, 167 (Ind. App. 1998) (“A
lender does not owe a fiduciary duty to a borrower absent
some special circumstances.”); Spencer v. DHI Mortg.
Co., 642 F. Supp. 2d 1153, 1161 (E.D. Cal. 2009)
(“Absent ‘special circumstances’ a loan transaction ‘is at
arms-length and there is no fiduciary relationship
between the borrower and lender.’”) (quoting Oaks
Mgmt. Corp. v. Super. Ct., 51 Cal. Rptr. 3d 561 (Cal.
App. 2006)); Ellipso, Inc. v. Mann, 541 F. Supp. 2d 365,
373 (D. D.C. 2008) (“[T]he relationship between a debtor
and a creditor is ordinarily a contractual relationship . . .
and is not fiduciary in nature.”) (citation omitted).
Id., at *5.
Given this rule, Plaintiffs fail to state a claim for breach of fiduciary
duty against Defendants.7 Nothing in the Complaint alleges “special
circumstances” that might impose a fiduciary duty in this mortgage-lending
situation against Defendants. See, e.g., Shepherd v. Am. Home Mortg. Servs., Inc.,
Unlike lenders, brokers generally owe fiduciary duties to their clients. See, e.g.,
Mortensen v. Home Loan Ctr., Inc., 2009 WL 113483, at *4 (D. Ariz. Jan. 16, 2009) (citing
cases indicating that mortgage brokers have fiduciary duties to their clients); Brewer v. Indymac
Bank, 609 F. Supp. 2d 1104, 1119 (E.D. Cal. 2009) (same); cf. Han v. Yang, 84 Haw. 162, 172,
931 P.2d 604, 614 (Haw. App. 1997) (“A real estate broker is a fiduciary and consequently must
exercise the ‘utmost good faith, integrity, honesty, and loyalty,’ and must diligently uphold a
legally imposed duty of due care.”) (citations omitted). Because Plaintiffs do not assert any
allegations establishing that any of the Defendants were acting in the capacity as a broker, the
court need not determine if Plaintiffs could state a claim against a broker.
2009 WL 4505925, at *2 (E.D. Cal. Nov. 20, 2009) (“Plaintiff cites no authority
for the proposition that AHMSI or Deutsche owed a duty to not cause plaintiff
harm in their capacities as servicer and [successor] to the original lender in
ownership of the loan, respectively. . . . In fact, loan servicers do not owe a duty to
the borrowers of the loans they service.”).
Accordingly, Count VI is DISMISSED with leave to amend.
Failure to Act in Good Faith (Count VII)
The Complaint alleges that “defendant or one or more of them owed
[Plaintiffs] a duty to deal with them in good faith and in a fair manner,” Compl.
¶ 79, and breached this duty through various misrepresentations and omissions. Id.
This claim asserts the tort of “bad faith.” See Best Place v. Penn Am.
Ins. Co., 82 Haw. 120, 128, 920 P.2d 334, 342 (1996) (adopting tort of bad faith
for breach of implied covenant of good faith and fair dealing in an insurance
contract). But, although bad faith is an accepted tort where the plaintiff is a party
to an insurance contract, the tort has not been recognized in Hawaii based upon a
mortgage loan contract. See Jou v. Nat’l Interstate Ins. Co. of Haw.,
114 Haw. 122, 129, 157 P.3d 561, 568 (Haw. App. 2007) (explaining that “the
Hawaii Supreme Court emphasized that the tort of bad faith, as adopted in Best
Place, 82 Haw. at 128, 920 P.2d at 342, requires a contractual relationship between
an insurer and an insured” (citations omitted)).
Moreover, although commercial contracts for “sale of goods” also
contain an obligation of good faith in their performance and enforcement, this
obligation does not create an independent cause of action. See Stoebner Motors,
Inc. v. Automobili Lamborghini S.P.A., 459 F. Supp. 2d 1028, 1037-38 (D. Haw.
2006). And Hawaii courts have noted that “[o]ther jurisdictions recognizing the
tort of bad faith . . . limit such claims to the insurance context or situations
involving special relationships characterized by elements of fiduciary
responsibility, public interest, and adhesion.” Id. at 1037 (quoting Francis v. Lee
Enters., 89 Haw. 234, 238, 971 P.2d 707, 711 (1999)).
Finally, even assuming a bad faith tort exists outside the insurance
context, it is well-settled that “[a] party cannot breach the covenant of good faith
and fair dealing before a contract is formed.” Contreras v. Master Fin., Inc., 2011
WL 32513, at *3 (D. Nev. Jan. 4, 2011) (citing Indep. Order of Foresters v.
Donald, Lufkin & Jenrette, Inc., 157 F.3d 933, 941 (2d Cir. 1998) (“[A]n implied
covenant relates only to the performance of obligations under an extant contract,
and not to any pre-contract conduct.”)). Hawaii follows this distinction. See
Young v. Allstate Ins. Co., 119 Haw. 403, 427, 198 P.3d 666, 690 (2008)
(indicating the covenant of good faith does not extend to activities occurring before
consummation of an insurance contract).
Because the Complaint alleges no “special relationship characterized
by elements of fiduciary responsibility, public interest, and adhesion,” the court
finds that Plaintiffs have failed to state a claim for bad faith. Further, Plaintiffs’
allegations regarding pre-contract activities (failing to disclosure terms, failing to
conduct proper underwriting, making an improper loan to Plaintiffs, or any
misconduct in the potential loan modification), cannot be the basis of a claim for
bad faith. See id.; see also Larson v. Homecomings Fin., LLC, 680 F. Supp. 2d
1230, 1237 (D. Nev. 2009) (“Because Plaintiffs’ claim revolves entirely around
alleged misrepresentations made before the [mortgage loan] contract was entered
into, [the bad faith claim] fails as a matter of law.”).
Accordingly, Count VII is DISMISSED, with leave to amend, if
possible, to state a claim based on post-contract conduct that involves a “special
relationship characterized by elements of fiduciary responsibility, public interest,
Injunctive Relief (Count VIII)
The Complaint asserts that Plaintiffs are entitled to injunctive relief
and a stay of any foreclosure proceedings until Plaintiffs’ claims are resolved.
Compl. ¶ 85.
The court follows the well-settled rule that a claim for “injunctive
relief” standing alone is not a cause of action. See, e.g., Jensen v. Quality Loan
Serv. Corp., 702 F. Supp. 2d 1183, 1201 (E.D. Cal. 2010) (“A request for
injunctive relief by itself does not state a cause of action”); Henke v. Arco Midcon,
L.L.C., 750 F. Supp. 2d 1052, 1059-60 (E.D. Mo. 2010) (“Injunctive relief,
however, is a remedy, not an independent cause of action.”); Plan Pros, Inc. v.
Zych, 2009 WL 928867, at *2 (D. Neb. Mar. 31, 2009) (“[N]o independent cause
of action for injunction exists.”); Motley v. Homecomings Fin., LLC, 557 F. Supp.
2d 1005, 1014 (D. Minn. 2008) (same). Injunctive relief may be available if
Plaintiffs are entitled to such a remedy on an independent cause of action.
Accordingly, the court DISMISSES Count VIII without leave to
amend. If injunctive relief is proper, it will be because Plaintiffs met the necessary
test for such relief under Rule 65 of the Federal Rules of Civil Procedure -- on an
independent cause of action.
Recoupment (Count IX)
Count IX, labeled “Recoupment” alleges that “[a]s a result of the
various wrongful acts and/or omissions made by defendant or one or more of them,
[Plaintiffs] is [sic] entitled to equitable recoupment of all monies paid by them with
regard to the subject loan transaction . . . .” Id. ¶ 89.
As with Plaintiffs’ other claims, this allegation is wholly conclusory
and provides no factual basis for why Plaintiffs are entitled to recoupment.
Further, even if it were not wholly conclusory, the court finds no cognizable basis
for such claim. To the extent based on TILA, TILA makes recoupment available
only as a “defense” in an “action to collect a debt,” 15 U.S.C. § 1640(e), and this
court has held that “[n]on-judicial foreclosures in Hawaii are not ‘actions to collect
the debt’ for purposes of recoupment under § 1640(e).” Araki v. One West Bank
FSB, 2010 WL 5625969, at *6 (D. Haw. Sept. 8, 2010). Further, equitable
recoupment is a defense, not a claim. City of Saint Paul, Alaska v. Evans, 344 F.3d
1029, 1034 (9th Cir. 2003) (“[E]quitable recoupment has been allowed by state
courts as well, but it has always been recognized as a defense, not a claim.”).
In opposition, Plaintiffs argue that they may state a claim for
recoupment pursuant to HRS § 490:3-305(a)(3), which provides that “the right to
enforce the obligation of a party to pay the instrument is subject to . . . [a] claim in
recoupment of the obligor against the original payee of the instrument if the claim
arose from the transaction that gave rise to the instrument . . . .” Defendants do not
address whether Plaintiffs might be able to state a claim pursuant to HRS
§ 490:3-305(a)(3), and even if HRS § 490:3-305(a)(3) could provide a basis for a
claim, the Complaint includes no factual allegations supporting such claim.
Accordingly, the court DISMISSES Count IX with leave to amend.
Unjust Enrichment (Count X)
The Complaint incorporates the previous paragraphs, and then
summarily asserts that “as a result of the various wrongful acts and/or omissions
made by defendant or one or more of them, defendant or one or more of them have
been unjustly enriched . . . .” Compl. ¶ 91.
The conclusory allegations of the Complaint are insufficient to
suggest a claim for relief that is plausible on its face. To bring an unjust
enrichment claim, a plaintiff must prove two elements: “(a) receipt of a benefit
without adequate legal basis by Defendants; and (b) unjust retention of that benefit
at the expense of Plaintiffs.” Porter v. Hu, 116 Haw. 42, 53, 169 P.3d 994, 1005
(Haw. App. 2007) (citing Small v. Badenhop, 67 Haw. 626, 636, 701 P.2d 647, 654
(1985)). Further, there must be “an absence of an adequate remedy at law.” Id.
(citations omitted). But the Complaint makes wholly unclear what benefits
Defendants received without adequate legal basis, therefore failing to provide fair
notice to each Defendant regarding the nature of Plaintiffs’ unjust enrichment
claim. See, e.g., Khomich v. Bank of Am., N.A., 2011 WL 1087858, at *8-9 (E.D.
Cal. Mar. 23, 2011) (dismissing unjust enrichment claim based on alleged “higher
interest rates, fees, rebates, kickbacks and profits, as well as payments from various
third parties,” because, among other reasons, plaintiff failed to “state any facts in
support of the contention that Defendants received and retained benefits and
payments to which they were not entitled”); Sorrels v. J.P. Morgan Chase Nat’l
Corp. Servs., Inc., 2011 WL 662980, at *6 (S.D. Cal. Feb. 14, 2011) (dismissing
claim because “[t]he conclusory allegations plaintiffs provide do not show
‘plausible liability’ with respect to this claim”); Gomez v. World Savings Bank
FSB, 2010 WL 5280004, at *5 (E.D. Cal. Dec. 13, 2010) (“[T]he FAC fails to
allege which Defendants receive what monies and thus fails to provide fair notice
of the nature of Plaintiff’s unjust enrichment claim.”).
The court therefore DISMISSES Count X of the Complaint with leave
Negligent and/or Intentional Infliction of Emotional Distress (Count XI)
Count XI, asserting claims for NIED and/or IIED, alleges that:
Defendant or one or more of them breached their duties
by causing [Plaintiff] to suffer severe mental and
emotional distress, by misleading them, entering into a
loan they were not properly qualified for, in causing them
to lose their savings, by giving them false hope they were
qualified for a loan modification, that they would be
allowed loan assistance or modification on reasonable
terms that would allow [Plaintiffs] to keep their interest
in the Property, among other things.
Compl. ¶ 94.
Neither the allegations in Count XI nor the other portions of the
Complaint sufficiently identify Defendants’ conduct that supports this claim -- the
allegations are simply too generalized and lacking in clarity to satisfy the
requirements of Rule 8. Further, as explained above as to Plaintiffs’ other claims,
Plaintiffs have failed to adequately allege any legally cognizable duty that
Defendants may have to Plaintiffs -- the Complaint fails to assert a claim for
breach of fiduciary duty, bad faith, or any other claim for that matter.
Accordingly, the court DISMISSES this claim with leave to amend.
Plaintiffs’ Rule 56(d) Request
Plaintiffs request that the court grant them leave to conduct discovery
pursuant to Federal Rule of Civil Procedure 56(d). Plaintiffs’ request is baseless
and appears to be nothing more than a stall tactic.
As an initial matter, Rule 56(d) applies only in the summary judgment
context; it has no application in response to Defendants’ Motion to Dismiss. Even
casting aside the label of Plaintiffs’ request, Plaintiffs have provided no basis for
why they should be entitled to discovery before they are even able to state a
cognizable claim. Although Plaintiffs assert “this is a developing area of law,”
Plaintiffs’ Opposition includes scant law in support of any of their claims, and
indeed, much of the law applicable to Plaintiffs’ claims is well-settled in this court
and has already been explained to Plaintiffs’ counsel on multiple occasions. More
telling, however, is that the Complaint failed to include many factual allegations
that are certainly within Plaintiffs’ knowledge -- for example, when Plaintiffs
entered into the mortgage loan transaction, which Defendants they interacted with,
when they discovered the TILA violations and/or how the TILA violations were
hidden from them, when the mortgage loan was transferred to BAC, what
misrepresentations Defendants made to Plaintiffs, the amount of time Defendants
provided Plaintiffs to seek a loan modification, etc. In short, discovery is not
necessary for Plaintiffs to provide a basis for their claims, and would only stall
adjudication of this action. Indeed, Plaintiffs included many additional allegations
in their Opposition that were never included in their Complaint. The court
therefore DENIES Plaintiffs’ request for discovery before amending the
V. WARNING TO PLAINTIFF’S COUNSEL
Plaintiff’s counsel, by this Order, is given clear warning -- the filing
of another of his form complaints without the required factual foundation to
support his claims, such as in Kapahu, Rey, and the instant case, will result in an
Order to Show Cause why sanctions should not be imposed for violation of Rule
11(b)’s mandate that parties present arguments that are warranted by the law and
non-frivolous. See Fed. R. Civ. P. 11(c)(3) (“On its own, the court may order an
attorney, law firm, or party to show cause why conduct specifically described in
the order has not violated Rule 11(b).”). Counsel’s conduct has resulted in an
inordinate waste of judicial resources. The court should not be required, time and
again, to dismiss counsel’s facially deficient form complaints for failure to state a
Based on the above, the court GRANTS Defendants’ Motion to
Dismiss. If they so choose, Plaintiffs may file an amended complaint asserting
claims against Defendants for all counts above except for a TILA rescission claim
and injunctive relief, by July 11, 2011. Failure to file an amended complaint by
July 11, 2011 will result in dismissal of this action.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, June 13, 2011.
/s/ J. Michael Seabright
J. Michael Seabright
United States District Judge
Cootey et al. v. Countrywide Home Loans, Inc., et al., Civ. No. 11-00152 JMS/KSC, Order
Granting Defendants Countrywide Home Loans, Inc. and BAC Home Loans Servicing, LP’s
Motion to Dismiss
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