MARIA-ELENA JAMES, Magistrate Judge.
Plaintiffs Phyllis Magdaluyo and Melecio Magdaluyo (together, "Plaintiffs") assert two claims for violations of the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2605, and common law fraud against Defendant New Penn Financial, LLC d/b/a Shellpoint Mortgage Servicing ("Defendant") arising out of foreclosure-related activities on Plaintiffs' real property. See First Am. Compl ("FAC"), Dkt. No. 30. Defendant moves for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). Mot., Dkt. No. 37. Plaintiffs filed an Opposition (Dkt. No. 40), and Defendant filed a Reply (Dkt. No. 41). The Court finds this matter suitable for disposition without oral argument and
On or about March 22, 2005, Plaintiffs obtained a $377,000 loan (the "Loan") from Quick Loan Funding, Inc. ("Quick Loan"). FAC ¶ 9. The Loan was secured by a deed of trust encumbering real property located at 216 Bridgeview Drive, San Francisco, California 94590 (the "Property"). Id.; see also id. ¶ 3.
On or about April 15, 2008, the Property was sold at a public auction to Robert T. Dunn and the Dunn Family Trust ("Dunn") for $112,475.12. Id. ¶ 10. On or about April 28, 2008, FCI National Lender Services, Inc. ("FCI"), the purported trustee of the loan, recorded with the San Francisco County Recorder a Trustee's Deed Upon Sale. Id. ¶ 11. According to this document, FCI served as a trustor for a deed of trust securing the Property dated September 13, 2006 and executed by Plaintiffs. Id. The Deed Upon Sale further provided that FCI granted its rights and interests to the Property to Dunn and to Homesavers, a California Corporation. Id. Dunn received a 99% undivided interest and Homesavers received a 1% undivided interest. Id. The Deed Upon Sale states the Deed of Trust was recorded on June 29, 2006. Id. "[T]he purported conveyance date of the deed of trust dated September 13, 2006 is claimed to have taken place more than three months prior to the deed of trust's recording date." Id.
Between 2012 and 2015, the Loan was assigned to various entities. On or about April 17, 2012, Quick Loan assigned the Deed of Trust to The Bank of New York Mellon, formerly known as The Bank of New York, as trustee for the Certificate holders of CWABS, Inc., Asset-Backed Certificates, Series 2005-SD2. Id. ¶ 12. "At some point subsequent to the Loan's origination, Bank of America, N.A. purported to be the servicer of the Loan." Id. ¶ 13. On or about February 15, 2014, Resurgent Capital Services became the Loan's servicer. Id. ¶ 14. Defendant became the servicer on or about March 1, 2014 and subsequently began foreclosure proceedings against the Property. Id. ¶ 15. Defendant and its alleged agent, the Law Offices of Les Ziev, have also represented "that an owner of the [L]oan is Homesavers, a California Corporation." Id. ¶ 18.
On or about October 26, 2015, Plaintiffs sent Defendant a "`qualified written request' in an attempt to determine whether or not [Defendant] had the proper authority to foreclose against the [] Property pursuant to the Loan and its accompanying deed of trust." Id. ¶ 16. In so doing, Plaintiffs requested "pertinent documents pertaining to the [L]oan's origination," plus assignments and transfers of the Loan. Id. To date, Defendant has failed to provide documents detailing updated assignments of ownership or necessary proof of its custodial servicing obligations to the Loan, as well as proof of purchases, affidavits of sale, and proper documentation detailing the restructuring of the Deed of Trust. Id.
Despite its failure "to provide documentation legitimizing its ability to foreclose on the [] Property[,]" Defendant, through Ziev, scheduled trustee sales for November 9, 2015 and December 9 and 22, 2015. Id. ¶ 17. Plaintiffs do not allege the Property has in fact been sold. See FAC.
Ms. Magdaluyo initiated this action on July 26, 2016. See Compl., Dkt. No. 1. She asserted claims for (1) fraud; (2) quiet title; (3) violations of the Federal Trade Commission ("FTC") Act, 15 U.S.C. § 45(a); and (4) violations of RESPA. Id. ¶¶ 19-57. The Court dismissed the Complaint pursuant to Rule 12(b)(6) and (7). See Order. First, it dismissed the Complaint on the ground that Ms. Magdaluyo failed to join Mr. Magdaluyo as a plaintiff as a necessary party. Order at 7-10. Second, the Court found Ms. Magdaluyo failed to state any claims. Id. at 10-19. It dismissed her quiet title and FTC Act claims with prejudice (id. at 14-16), but granted her leave to amend her fraud and RESPA claims (id. at 11-14, 16-19). Specifically, the Court permitted Ms. Magdaluyo to amend her fraud claim to allege "specific facts that connect Defendant to the fraudulent activity and that shows the delayed discovery rule applies" (id. at 14) and to amend her RESPA claim to "allege facts that show her requests to Defendant contained the necessary information set forth in 15 U.S.C. § 2605(e)(1)(B) and sought information concerning the servicing of the Loan, not its origination" (id. at 19).
Mr. Magdaluyo joined Ms. Magdaluyo in the FAC, which they filed on February 16, 2017. See FAC. The FAC asserts two claims for fraud and a violation of RESPA. Id. ¶¶ 19-28, 50-57.
"After the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). "Judgment on the pleadings is properly granted when there is no issue of material fact in dispute, and the moving party is entitled to judgment as a matter of law." Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009).
"Analysis under Rule 12(c) is substantially identical to analysis under Rule 12(b)(6) because, under both rules, a court must determine whether the facts alleged in the complaint, taken as true, entitle the plaintiff to a legal remedy." Chavez v. United States, 683 F.3d 1102, 1108 (9th Cir. 2012) (internal quotation marks omitted). "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).
Courts analyzing a Rule 12(c) motion must "accept the factual allegations in the complaint as true, and view them in a light most favorable to the plaintiff." LeGras v. AETNA Life Ins. Co., 786 F.3d 1233, 1236 (9th Cir. 2015), cert. denied, 136 S.Ct. 1448 (2016). 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). "[I]t is within [the court's] wheelhouse to reject, as implausible, allegations that are too speculative to warrant further factual development." Dahlia v. Rodriguez, 735 F.3d 1060, 1076 (9th Cir. 2013).
"Where a court grants . . . a motion for judgment on the pleadings under Rule 12(c), leave to amend should be freely given if it is possible that further factual allegations will cure any defect." Lopez v. Regents of Univ. of Cal., 5 F.Supp.3d 1106, 1113 (N.D. Cal. 2013).
Before turning to the parties' substantive arguments, the Court addresses Defendant's Request for Judicial Notice. See RJN. Under Federal Rule of Evidence 201(b), "[t]he court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Courts "may take judicial notice of court filings and other matters of public record." Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006); see Rees v. PNC Bank, N.A., 308 F.R.D. 266, 271 (N.D. Cal. 2015) (taking judicial notice of recorded deed of trust, recorded assignments of deed of trust, recorded notice of default, and recorded notice of trustee's sale). But while courts may take judicial notice of undisputed matters of public record, they may not judicially notice "disputed facts stated in public records." Lee v. City of L.A., 250 F.3d 668, 690 (9th Cir. 2001) (emphasis in original).
Defendant requests the Court take judicial notice of the following documents:
The Court took judicial notice of these documents in considering Defendant's Motion to Dismiss. See Order at 5-7. As these documents are in the public record and as Plaintiffs do not object to Defendant's request (see Opp'n), the Court again takes judicial notice of them.
Other than abandoning the quiet title and FTC Act claims, the FAC evidences only two substantive changes from the original Complaint: it names Mr. Magdaluyo as a plaintiff and adds one paragraph. See FAC at 1 & ¶ 54. The allegations otherwise are virtually identical. Compare Compl. with FAC.
"The elements of a cause of action for fraud in California are: `(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or `scienter'); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.'" Kearns v. Ford Motor Co., 567 F.3d 1120, 1126 (9th Cir. 2009) (quoting Engalla v. Permanente Med. Grp., Inc., 15 Cal.4th 951, 974 (1997)).
Rule 9(b) requires a plaintiff alleging fraud or mistake to plead "with particularity the circumstances constituting fraud or mistake." Fed. R. Civ. P. 9(b). A plaintiff must establish "more than the neutral facts necessary to identify the transaction": she "must set forth what is false or misleading about a statement, and why it is false." Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003) (internal quotation marks omitted). This "includ[es] the who, what, when, where, and how of the misconduct charged." Ebeid ex rel. U.S. v. Lungwitz, 616 F.3d 993, 998 (9th Cir. 2010) (internal quotation marks omitted). This "give[s] defendants notice of the particular misconduct which is alleged to constitute the fraud charged so that they can defend against the charge and not just deny that they have done anything wrong." United States v. United Healthcare Ins. Co., 848 F.3d 1161, 1180 (9th Cir. 2016) (quoting Bly-Magee v. Cal., 236 F.3d 1014, 1019 (9th Cir. 2001)).
In dismissing the fraud claim, the Court found
Order at 12-13.
The FAC does not address the deficiencies the Court identified in its Order that caused the Court to dismiss the original fraud claim. Despite clear directions from the Court, Plaintiffs again fail to connect FCI's conduct to Defendant. See FAC. Moreover, while Plaintiffs identify Defendant and Ziev as making allegedly fraudulent communications generally relating to the owner of the Loan and Defendant's ability to collect payments and foreclose on the Loan, Plaintiffs still fail to plead facts as to when, where, or how the communications were made. In short, the FAC contains no particularized facts showing Defendant committed fraud.
Instead of addressing their failure to plead fraud with particularity in their Opposition, Plaintiffs focus on the statute of limitations and argue the delayed discovery rule allows them to proceed on their fraud claim. Opp'n at 8-9. Assuming, arguendo, that they had pleaded fraud with sufficient particularity to survive this Motion, Plaintiffs have not sufficiently pleaded the application of the delayed discovery rule.
California law imposes a three-year statute of limitations on fraud claims, but it "is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake." Cal. Civ. Proc. Code § 338(d). "Code of Civil Procedure section 338, subdivision (d), effectively codifies the delayed discovery rule in connection with actions for fraud[.]" Platt Elec. Supply, Inc. v. EOFF Elec., Inc., 522 F.3d 1049, 1057 (9th Cir. 2008) (citing Brandon G. v. Gray, 111 Cal.App.4th 29, 35 (2003)). "`Under the discovery rule, the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her.'" Amacker v. Bank of Am., 2014 WL 4771668, at *4 (N.D. Cal. Sept. 24, 2014) (quoting Jolly v. Eli Lilly & Co., 44 Cal.3d 1103, 1110 (1988)). The delayed discovery rule provides that "a cause of action accrues and the statute of limitations begins to run when the plaintiff has reason to suspect an injury and some wrongful cause, unless the plaintiff pleads and proves that a reasonable investigation at that time would not have revealed a factual basis for that particular cause of action." Fox v. Ethicon Endo-Surgery, Inc., 35 Cal.4th 797, 803 (2005). "A plaintiff whose complaint shows on its face that his claim would be barred without the benefit of the discovery rule must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence." E-Fab, Inc. v. Accountants, Inc. Servs., 153 Cal.App.4th 1308, 1319 (2007).
The Court previously found the three-year statute of limitations barred this claim:
Order at 14. Plaintiffs argue "[t]he statute of limitations began to run when Plaintiffs discovered the existence of their claims." Opp'n at 9 (emphasis in original). But Plaintiffs ignore the fact that they "must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence." E-Fab, 153 Cal. App. 4th at 1319. The FAC is again devoid of allegations as to when and how Plaintiffs had reason to suspect an injury and some wrongful conduct. "The discovery rule does not encourage dilatory tactics because plaintiffs are charged with presumptive knowledge of an injury if they have information of circumstances to put them on inquiry or if they have the opportunity to obtain knowledge from sources open to their investigation." Fox, 35 Cal. 4th at 807-08 (internal quotation marks and footnote omitted). The FAC does not contain allegations sufficient to show why Plaintiffs could not have discovered the factual basis for their fraud claim earlier, despite reasonable diligence. For instance, Plaintiffs allege "[o]n or about April 28, 2008" the Loan's trustee "recorded a Deed Upon Sale with the San Francisco County Recorder." FAC ¶ 24(a). Plaintiffs further allege "the Deed Upon Sale . . . claim[s] the . . . deed of trust was recorded on June 29, 2006"; however, "[t]he legitimacy of this document is called into question since the purported conveyance date of the deed of trust dated September 13, 2006 is claimed to have taken place more than three months prior to the deed of trust's recording date." Id. Plaintiffs offer no facts or argument as to why they should not have had reason to suspect the existence alleged fraud in 2008, when the Deed Upon Sale was recorded. The Court therefore finds Plaintiffs once again fail to show the delayed discovery rule applies.
Plaintiffs also argue the FAC contains "alleg[ations] that Defendant committed a number of misrepresentations in recent years that fall within the statute of limitations even if the discovery rule is not applied." Opp'n at 9. To the extent Plaintiffs refer to the communications concerning Defendant's "authority to collect payments pursuant to the Loan" or "to foreclose upon the . . . Property" (FAC ¶¶ 24(c)-(d)), as explained above, Plaintiffs do not provide dates as to when these communications occurred. See FAC. In dismissing the original Complaint, the Court held these same allegations did not satisfy Rule 9(b)'s heightened pleading standard. See Order at 12 (finding "allegation that Defendant stated it has the authority to collect payments under the Loan" was conclusory and lacked specificity because "Plaintiff d[id] not explain when or how Defendant made this assertion."); see also Compl. ¶¶ 24(c)-(d). Plaintiffs do not remedy this deficiency in their FAC: they still do not allege when, how, or where Defendant made these allegedly fraudulent representations. In particular, without more information as to when Defendant made these communications, the Court cannot find they fall within the statute of limitations period.
In short, the FAC suffers from the same defects identified in the Court's prior Order. The Court accordingly GRANTS Defendant's Motion as to Plaintiffs' fraud claim.
RESPA allows a borrower or its agent to submit a qualified written request ("QWR") to a servicer of a federally related mortgage loan "for information relating to the servicing of such loan." 12 U.S.C. § 2605(e)(1)(A). To constitute a QWR, the request must "(1) reasonably identif[y] the borrower's name and account, (2) either state[] the borrower's `reasons for the belief. . . that the account is in error' or `provide[] sufficient detail to the servicer regarding other information sought by the borrower,' and (3) seek[] `information relating to the servicing of the loan.'" Medrano v. Flagstar Bank, FSB, 704 F.3d 661, 666 (9th Cir. 2012) (quoting 12 U.S.C. § 2605(e)(1)(A)-(B)) (ellipses in original; some brackets omitted).
Servicers must respond to a QWR in one of three ways. First, the servicer may make the appropriate corrections to the borrower's account. 12 U.S.C. § 2605 (e)(2)(A). Second, it may conduct an investigation and either provide the borrower with a written explanation as to the reasons the servicer believes the borrower's account is correct or the requested information or an explanation. Id. § 2605(e)(2)(B)(i)-(ii). Third, it may conduct an investigation and provide the borrower with the requested information or a written explanation of why the servicer cannot obtain the requested information. Id. § 2605(e)(2)(C)(i)-(ii). "RESPA does not require any magic language before a servicer must construe a written communication from a borrower as a qualified written request and respond accordingly." Medrano, 704 F.3d at 666 (9th Cir. 2012) (quoting Catalan v. GMAC Mortg. Corp., 629 F.3d 676, 687 (7th Cir. 2011)).
The Court previously found that
Order at 17-19.
As with the fraud claim, the FAC repeats verbatim the same allegations regarding the RESPA claim that the Court found insufficient in the original Complaint. Compare Compl. ¶¶ 50-57 with FAC ¶¶ 28, 50-57. Only the following allegation is new:
FAC ¶ 54. Paragraph 54 does not cure the defects the Court previously identified. See Order at 16-19. On the contrary, it demonstrates Plaintiffs have not stated a RESPA claim.
The Ninth Circuit explains that
Medrano, 704 F.3d at 666 (quoting 12 U.S.C. § 2605(e)(1)(A)-(B)) (edits in Medrano). Plaintiffs do not allege any facts showing their written request contained any of these requirements such that Defendant was required to respond pursuant to RESPA. See FAC. In particular, Plaintiffs do not allege the request concerned payments on the Loan. They do, however, clearly state they sought information about the Loan's origination, assignments, and transfers. FAC ¶ 54. This does not qualify as a request regarding servicing, which RESPA defines as "any scheduled periodic payments from a borrower pursuant to the terms of any loan, including . . . payments of principal and interest and such other payments with respect to the amounts received from the borrower as may be required pursuant to the terms of the loan." 12 U.S.C. § 2605(i)(3). Plaintiffs argue "all information sought by Plaintiff[s] is within the scope of servicing the [L]oan because the servicer of the [L]oan is responsible for (and the only entity capable of) providing the loan information sought by Plaintiff[s]." Opp'n at 10. Not so. RESPA's definition of "servicing" "does not include the transactions and circumstances surrounding a loan's origination—facts that would be relevant to a challenge to the validity of an underlying debt or the terms of a loan agreement. Such events precede the servicer's role in receiving the borrower's payments and making payments to the borrower's creditors." Medrano, 704 F.3d at 666. "[T]hat the letter must request information relating to servicing [] ensures that the statutory duty to respond does not arise with respect to all inquiries or complaints from borrowers to servicers." Id. (emphasis in original).
Because the FAC alleges no facts showing Plaintiffs' request for information constitutes a QWR imposing a statutory duty on Defendant to respond, the Court finds Plaintiffs again fail to state a plausible claim that Defendant violated RESPA. Accordingly, the Court GRANTS Defendant's Motion as to the RESPA claim.
"[L]eave to amend is not automatic upon granting a motion for judgment on the pleadings under Rule 12(c), but is within the Court's discretion." Guidiville Rancheria of Cal. v. United States, 2014 WL 3749227, at *3 (N.D. Cal. July 24, 2014), rev'd in part sub nom. Guidiville Rancheria of Cal. v. United States, 2017 WL 3327828 (9th Cir. Aug. 4, 2017). Plaintiffs argue that if the Court grants Defendant's Motion, it should allow Plaintiffs a further opportunity to amend. Opp'n at 10. They contend "permitting Plaintiffs to amend their FAC would not be futile, as Plaintiffs are easily capable of amending their FAC to remedy any deficiencies identified by the Court." Id. The Court previously granted leave to amend and specifically identified the deficiencies in the allegations. See generally Order. Plaintiffs did not address those deficiencies; they instead submitted a FAC which, as noted, is virtually identical to the initial Complaint. Compare Compl. with FAC. Plaintiffs do not explain how they are "easily capable of amending their FAC to remedy any deficiencies." They do not explain why there were previously unable to meaningfully address the identified defects or why they believe they can now do so. There is nothing in the record that suggests Plaintiffs now possess facts to which they did not have access when they filed the FAC and therefore could not allege at that time.
But courts generally grant leave to amend upon granting a Rule 12(c) motion. See Lopez, 5 F. Supp. 3d at 1113; Young v. Am. Gen. Life Ins. Co., 2014 WL 4960240, at *3 (E.D. Cal. Oct. 2, 2014) ("There is no binding authority prohibiting amendment when requested by the non-moving party in its opposition to a Rule 12(c) motion for judgment on the pleadings. Courts have generally allowed amendment pursuant to the liberal pleadings standards of the Federal Rules of Civil Procedure." (collecting cases)). In the interests of justice, the Court will allow Plaintiffs one final opportunity to amend. That said, "[i]t is well established that district courts have inherent power to control their docket." Ready Transp., Inc. v. AAR Mfg., Inc., 627 F.3d 402, 404 (9th Cir. 2010) (internal quotation marks and edits omitted). The Court and the parties also share the responsibility to litigate this matter efficiently. Fed. R. Civ. P. 1. Given Plaintiffs' prior failure to substantively address the deficiencies the Court identified in its prior Order and in the interests of judicial economy, the Court
For the foregoing reasons, the Court
Plaintiffs may also obtain a copy of the Court's Handbook for Litigants Without a Lawyer, which is available free of charge in the Clerk's Office, or online at http://cand.uscourts.gov/prosehandbk. This handbook provides an explanation of the required components of a complaint.
