WILLIAM H. ORRICK, District Judge.
After I dismissed eight of the ten causes of action in her original complaint with leave to amend, Dkt. No. 24, plaintiff Ana Alvarez filed a first amended complaint against defendants MTC Financial, Inc. dba Trustee Corps ("MTC") and JPMorgan Chase Bank ("Chase") reiterating the same claims arising from the defendants' failure to contact her prior to pursuing foreclosure of her residence. No foreclosure sale of the property has occurred. The amended complaint is very much like the original. Chase now moves to dismiss her claims other than her first claim under the Homeowners Bill of Rights and her second claim under Civil Code section 2923.5. Ms. Alvarez did not appear for the hearing.
On June 26, 2007, Alvarez obtained a $600,000.00 loan from Chase secured by a deed of trust ("DOT") for the real property 270 Beachview Avenue, #14, Pacifica, California 94044. First Am. Compl. ¶ 17 ("FAC")(Dkt. No. 36); see also Def.'s Request for Judicial Notice (RJN), Ex. 1 (Dkt. No. 38-2).
On June 26, 2015, MTC was substituted as the trustee under the DOT. FAC ¶ 22; RJN, Ex. 2 (Dkt. No. 38-3). On July 10, 2015, MTC issued and recorded a Notice of Default and Election to Sell ("NOD"). FAC ¶ 24; RJN, Ex. 3 (Dkt. No. 38-4). The NOD documented the amount of default as $39,067.37. RJN, Ex. 3. MTC recorded a Notice of Trustee's Sale ("NOTS 1") on October 16, 2015, with a sale scheduled for November 30, 2015. FAC ¶ 27; see also id., Ex. D.
MTC recorded another Notice of Trustee's Sale ("NOTS 2") on February 11, 2016. FAC ¶ 28; see also id., Ex. E.
On September 26, 2016, Alvarez filed this action in California Superior Court, County of San Mateo. NOR ¶ 1 (Dkt. No. 1). MTC filed a Declaration of Non-Monetary Status, thus excusing it from participating in this suit. Hafiz v. Greenpoint Mortg. Funding, Inc., 652 F.Supp.2d 1050, 1052 (N.D. Cal. 2009), aff'd sub nom. Hafiz v. Greenpoint Mortg. Funding, 409 F. App'x 70 (9th Cir. 2010)("When a trustee under a deed of trust files a declaration of non-monetary status, the party is transformed into a `nominal' party, thus excusing it from participating in the action."). Chase then removed based on diversity of citizenship, and MTC's status as a nominal party.
Ten days later, Alvarez filed her first amended complaint ("FAC")(Dkt. No. 36), repeating the same ten claims: (1) violation of the Homeowners Bill of Rights ("HBOR"), FAC ¶¶ 44-53; (2) violations of California Civil Code § 2923.5, id. ¶¶ 54-59; (3) negligence, id. ¶¶ 60-72; (4) declaratory relief, id. ¶¶ 73-84; (5) fraud in the concealment, id. ¶¶ 85-107; (6) intentional infliction of emotional distress, id. ¶¶ 108-120; (7) slander of title, id. ¶¶ 121-130; (8) quiet title, id. ¶¶ 131-138; (9) recission [sic] against defendant Chase, id. ¶¶ 139-143; (10) injunctive relief, id. ¶¶ 144-157.
Federal Rule of Civil Procedure 8(a)(2) requires a complaint to contain "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), in order to "give the defendant fair notice of what the claim is and the grounds upon which it rests," Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks and alterations omitted).
A motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). "Dismissal under Rule 12(b)(6) is appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory." Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). While a complaint "need not contain detailed factual allegations" to survive a Rule 12(b)(6) motion, "it must plead enough facts to state a claim to relief that is plausible on its face." Cousins v. Lockyer, 568 F.3d 1063, 1067-68 (9th Cir. 2009) (internal quotation marks and citations omitted). A claim is facially plausible when it "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).
In considering whether a claim satisfies this standard, the court must "accept factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party." Manzarek v. St. Paul Fire & Marines Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). However, "conclusory allegations of law and unwarranted inferences are insufficient to avoid a Rule 12(b)(6) dismissal." Cousins, 568 F.3d at 1067 (internal quotation marks omitted). A court may "reject, as implausible, allegations that are too speculative to warrant further factual development." Dahlia v. Rodriguez, 735 F.3d 1060, 1076 (9th Cir. 2013).
Chase moves to dismiss all claims, other than Alvarez's claim under the HBOR
Alvarez repeats her allegations that defendants lack standing to foreclose because they have no security interest in her property due to unlawful transfers and/or assignments of the Promissory Note and Deed of Trust. FAC ¶¶ 30-32; see also id. ¶¶ 37-41. Alvarez claims that the defendants "do not have lawful ownership or a security interest in Plaintiff's real property." FAC ¶ 37. As with its first motion, Chase argues that Alvarez should be judicially estopped from asserting that the defendants do not have an interest in the loan because she acknowledged Chase's interest in documents filed in the bankruptcy proceedings. Mot. at 9. I previously held that judicial estoppel was unnecessary because the judicially noticed DOT clearly identifies JPMorgan Chase Bank, N.A. as the lender. RJN, Ex. 1 (Dkt. No. 38-2). While recognizing Chase's desire to preserve its judicial estoppel argument, the Prior Order addressed the issue. Chase holds a valid interest in the property, and Alvarez has not shown otherwise.
"To state a cause of action for negligence, a plaintiff must allege that (1) the defendant owed the plaintiff a duty of care, (2) the defendant breached that duty, and (3) the breach proximately caused the plaintiff's damages or injuries. Lueras v. BAC Home Loans Servicing, LP, 221 Cal.App.4th 49, 62 (2013). Alvarez alleges that "there is a special relationship between Plaintiff and JP MORGAN CHASE BANK by the virtue of contractual agreement referenced above in which JP MORGAN CHASE BANK owe [sic] a duty to exercise the proper skill and care in handling matter [sic] concerning Plaintiff's real property including but limited to [sic] properly crediting Plaintiff for money Plaintiff had paid on the mortgage, recording of the notice of default, recording assignment of deed of trust and the Trustee's deed upon sale." FAC ¶ 62. She also states that "had Defendants used proper skill and care in the handling of Plaintiff's matter, Plaintiff would not have suffered emotional distress[.]"
But "as a general rule, a financial institution owes no duty of care to a borrower when the institution's involvement in the loan transaction does not exceed the scope of its conventional role as a mere lender of money." Nymark v. Heart Fed. Sav. & Loan Assn., 231 Cal.App.3d 1089, 1096 (Ct. App. 1991). Alvarez again fails to adequately allege a plausible basis for finding a duty here.
Alvarez contends that defendants concealed that her loan was securitized, and unlawfully substituted the trustee under the DOT. FAC ¶¶ 88-90. "To be liable for fraudulent concealment under California law, (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage." Song Fi, Inc. v. Google, Inc., No. C 14-5080 CW, 2016 WL 1298999, at *7 (N.D. Cal. Apr. 4, 2016)(quotation marks omitted). "A duty may arise where there is a fiduciary or confidential relationship, where a defendant does not disclose facts that materially qualify a separate disclosure or render that disclosure likely to mislead, where a defendant knows that facts not reasonably discoverable by the plaintiff are only known or accessible to the defendant, and where a defendant actively conceals discovery from the plaintiff." Id.
As previously stated, plaintiff's claims based on fraud or mistake are subject to a three-year statute of limitations. Cal. Civ. Proc. Code § 338(d). Plaintiff states that she "just learn [sic] about Defendants' misrepresentation and concealment of material fact concerning Plaintiff's Note," and defendants "[f]ail[ed] to provide a Mortgage Loan Origination Agreement[.]" FAC ¶¶ 141-42. These allegations appear for the first time under her claim for rescission. She also states that defendants "promised Plaintiff that Plaintiff is entitled to a loan modification and subsequently Rejected said offer of loan modification." Id. ¶ 102. But she offers no additional information regarding a purported loan modification, and in her opposition, she provides no clarification on that or the circumstances surrounding the securitization. See Opp'n at 12. Her allegations are insufficient to meet the heightened pleading standards under FRCP 9(b). See Vess v. Ciba-Geigy Corp., 317 F.3d 1097, 1106 (9th Cir. 2003)("Averments of fraud must be accompanied by the who, what, when, where, and how of the misconduct charged.").
Since Plaintiff fails to meet the particularity requirement of Rule 9(b), her fraud claim is DISMISSED.
"The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct. . . .Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community." Wilson v. Hynek, 207 Cal.App.4th 999, 1009 (2012)(internal quotation marks and citations omitted).
Plaintiff once again alleges that she "did not default in the manner stated in the Notice of Default," id. ¶ 118, but she fails to explain precisely what this means. As previously noted, "the facts here establish a `creditor/debtor situation, whereby defendants were exercising their rights under the loan agreements.' Prior Order at 10 (quoting Wilson, 207 Cal. App. 4th at 1009). In the absence of any plausible allegations of extreme or outrageous conduct, her claim for intentional infliction of emotional distress fails.
"[S]lander or disparagement of title occurs when a person, without a privilege to do so, publishes a false statement that disparages title to property and causes the owner thereof some special pecuniary loss or damage." Sumner Hill Homeowners' Assn., Inc. v. Rio Mesa Holdings, LLC, 205 Cal.App.4th 999, 1030. The tort requires "(1) a publication, (2) without privilege or justification, (3) falsity, and (4) direct pecuniary loss." Id. I previously held that plaintiff's slander of title claim must be dismissed because defendant's act of recordation was privileged under California Civil Code section 47(c)(1).
Alvarez seeks to quiet title to her real property based on her allegation that defendants have no interest in the property. FAC ¶ 134. Plaintiff has not cured the deficiencies identified in the Prior Order, so her claim for quiet title is DISMISSED WITHOUT LEAVE TO AMEND. See Prior Order at 11-12 ("Alvarez does not allege that she has cured any default or paid the loan in full, the latter of which would be required to quiet title to the property.").
Alvarez again seeks rescission of her underlying loan agreement. In the Prior Order, I stated that "[i]f Alvarez `intends to seek rescission, she must state a claim for which rescission could be granted and plead for such relief as a remedy for that claim.'" Prior Order at 12 (quoting Davis, 2016 WL 7178466, at *13). Plaintiff added an allegation that she "is entitled to rescind the loan . . . for . . . 1) Violation of California Homeowner Bill of Rights; 2) Failure to provide a Mortgage Loan Origination Agreement; 3) Fraudulent Concealment; 4) Fraudulent Inducement; 5) failure to abide by California non-judicial foreclosure laws; 6) making illegal or fraudulent transfers of the note and deed of trust; and 5) [sic] Public Policy Grounds[.]" FAC ¶ 141. If she had adequately alleged a claim for fraudulent concealment, she may have been entitled to rescission.
Alvarez repeats her allegation that "an actual controversy . . . exists between Plaintiff and Defendants concerning their respective rights and duties regarding the Note and Trust Deed." FAC ¶ 74. She once again seeks a determination of (1) "the validity of the Trust Deeds as of the date the Notes were assigned without a concurrent assignation of the underlying Trust Deeds[,]" (2) "the validity of the Notice of Default[;]" and (3) "whether any Defendants have authority to foreclose on the real Property." FAC ¶¶ 78-80. She also requests a declaration that "plaintiff is entitled to exclusive possession of the real property[,]" and defendants have no interest in it. Id. ¶¶ 82-84. "Declaratory relief is not an independent claim, rather it is a form of relief." Santos v. Countrywide Home Loans, 2009 WL 3756337, at *5 (E.D. Cal. Nov. 6, 2009). Since the declarations that plaintiff seeks are determinations necessary to resolve her other causes of action, declaratory relief is not appropriate. See Davis, 2016 WL 7178466, at *14 (dismissing plaintiffs' claim for declaratory relief).
Since Alvarez has failed to address the deficiencies identified in the Prior Order, Chase's motion to dismiss is GRANTED WITHOUT LEAVE TO AMEND. The third through tenth causes of action are dismissed with prejudice. The first and second causes of action under the Homeowners' Bill of Rights and California Civil Code section 2923.5 survive.
Prior Order at 5 n.5. Alvarez has repeated these allegations without further substantiation. See FAC ¶¶ 93-97.
Cal. Civ. Code § 2924.17.
