LAUREL BEELER, United States Magistrate Judge.
Plaintiff Mark Lester instituted this action against defendants J.P. Morgan Chase Bank, N.A. ("Chase") and Washington Mutual Bank ("WaMu") to, among other things, stop Chase from foreclosing on his home. See generally Complaint, ECF No. 1.
On April 30, 2007, Mr. Lester borrowed $2,292,500 from WaMu to purchase property located at 934 Baileyana Road in Hillsborough, California (the "Property"). Complaint, ECF No. 1 ¶¶ 20-21. Mr. Lester and WaMu executed two documents: a promissory note in the amount of $2,292,500 that names Mr. Lester as "Borrower" and WaMu as "Lender" (the "Note"), and a deed of trust that secures the Note and names Mr. Lester as "Borrower," WaMu as "Lender," and California Reconveyance Corporation ("CRC") as "Trustee" (the "Deed of Trust"). Id., Exh. A (Note and Deed of Trust); Request for Judicial Notice ("RJN"), ECF No. 8-1, Exh. A (Deed of Trust).
Mr. Lester alleges that WaMu "thereafter sold (or securitized) [his] loan into the Wa[M]u Mortgage Pass-Through Certificates Series 2007-HY7 Trust" (the "WaMu 2007-HY7 Trust"). Complaint, ECF No. 1 ¶ 22. WaMu "remained the server" of the WaMu 2007-HY7 Trust, and "LaSalle Bank (Bank of America)" is the "Trustee" of the WaMu 2007-HY7 Trust. Id. Mr. Lester further alleges that the pooling and service agreement that created the WaMu 2007-HY7 Trust names "LaSalle Bank National Association" as "Trustee," and states that "[t]he assets of the [WaMu 2007 HY7 Trust] shall remain in the custody of the Trustee of the Custodian, on behalf of the [WaMu 2007 HY7 Trust], and shall be owned by the [WaMu 2007 HY7 Trust]." Id. ¶ 23. He further alleges that the "closing date" for assets to be transferred to the WaMu 2007-HY7 Trust was June 25, 2007. Id. ¶ 24.
On September 25, 2008, the Office of Thrift Supervision closed WaMu and appointed the FDIC as receiver. See id. ¶ 24 & n. 1. On the same date, Chase entered into a purchase and assumption agreement with the FDIC by which Chase acquired certain assets and assumed certain liabilities of WaMu. See id.
Concerned about declining property values and the increase in his mortgage payments that was scheduled to take place in 2014, Mr. Lester contacted Chase, who apparently represented that it was the lender, in November 2008 to inquire about receiving a loan modification. Id. ¶ 62. At some point between then and March 2010, it appears that Mr. Lester received a trial loan modification, pursuant to which Mr. Lester made three partial payments. See id. ¶ 65. Thereafter, Mr. Lester alleges that he "was told by Chase representatives that they could not modify his loan unless he was behind in [his] payments." Id. "[I]n reliance o[n] this representation, [he] stopped making payments because no one at Chase would contact him modification unless he was in arrears." Id. Chase "eventually contacted [him] and told him to submit financial information for a loan modification." Id. On March 10, 2010, Mr. Lester "faxed to Betty of Chase at (866) 282-5682 all requested information for loan modification." Id. On June 12, 2010, Mr. Lester "received a letter from Chase stating that [it] could not continue to review his modification because [he] was in a middle of a `Trial Period Plan,'" although "in the same letter Chase again requested addition information within 30 days." Id. On June 29, 2010, Mr. Lester "faxed to Tamura Croslin of Chase at (866) 221-1019 a new package with all supporting document[s]." Id. Chase, however, "claimed [it] never received the information." Id. On July 7, 2010, Mr. Lester "sent to Tamura Croslin at (866) 221-1019 information as specified," and he "later ended up hand delivering the file to the Walnut Creek Home Loan Modification Center and meeting with Christine Dreu of Chase and going through all of the information with her because Chase claimed to have lost the information and would not accept the information by email." Id. Finally, on September 23, 2010, the trial loan modification expired "due to [Mr. Lester's] alleged failure to provide needed information, the same information Plaintiff sent to Chase on at least 4 separate occasions, with numerous updates as time went on." Id.
On November 18, 2010, apparently at the request of CRC, an Assignment of
On that same date, CRC, "as Trustee," recorded a notice of default in the official records of San Mateo County which indicated that Mr. Lester was $105,745.40 in arrears on his loan. Id. ¶ 25; RJN, ECF No. 8-1, Exh. B.
Thereafter, Mr. Lester "sent in another loan modification packet at the request of Chase." Complaint, ECF No. 1 ¶ 65. On January 5, 2011, Mr. Lester "received a letter stating that he was not qualified for [the Home Affordable Modification Program ("HAMP")] because his loan was too large," information that, Mr. Lester alleges, "Chase obviously knew at the time [he] first submitted the loan modification information." Id.
On February 22, 2011, CRC, "as Trustee" under the Deed of Trust, recorded a notice of trustee's sale in the official records of San Mateo County. Id. ¶ 25; RJN, ECF No. 8-1, Exh. C. The notice states, in relevant part, that "the present beneficiary under such Deed of Trust, has executed and delivered to said Trustee [CRC], a written Declaration and Demand for Sale, and has deposited with said duly appointed Trustee [CRC], such Deed of Trust and all documents evidencing the obligations secured thereby, and has declared and does hereby declare all sums secured thereby immediately due and payable and has elected and does hereby elect to cause the trust property to be sold to satisfy the obligations secured thereby." RJN, ECF No. 8-1, Exh. C.
In May 2011, Mr. Lester "immediately applied once again for loan modification" and continued "to make regular payments." Complaint, ECF No. 1 ¶ 65.
On May 20, 2011, CRC, again "as Trustee" under the Deed of Trust, recorded a notice of rescission of the February 22, 2011 notice of trustee's sale. Id. ¶ 25; RJN, ECF No. 8-1, Exh. D. The notice of rescission lists the "Beneficiary" of the Deed of Trust as WaMu and states, in relevant part, that "[t]he Beneficiary under that certain Deed of Trust hereinabove described [WaMu], heretofore delivered to the Trustee thereunder written Declaration of Default and Demand for Sale" and that "[n]otice was heretofore given by the Beneficiary [WaMu], of breach of the obligations for which said Deed of Trust is security and of electrion to cause to be sold the property therein described." RJN, ECF No. 8-1, Exh. D.
On June 24, 2011, Mr. Lester "received a letter declining his eligibility for HAMP." Complaint, ECF No. 1 ¶ 65. After that, Mr. Lester "was told once again that he could not modify his loan or get any attention from Chase while he was making payments," so he "stopped making payments in November 2011." Id.
On January 30, 2012, Mr. Lester "received a letter notifying him that he was in default on the loan and $22,000 in arrears on his loan." Id. He then "once again submitted all of the financial statements as requested," and on March 30, 2012, he
On May 4, 2012, Mr. Lester "submitted his fourth loan modification request." Id. On July 12, 2012, Mr. Lester "received a letter requesting additional financial information," and on July 14, 2012, he submitted the requested information. Id. On July 20, 2012, he "received a letter from Chase notifying him that he would [receive] an answer to the loan modification by August 2, 2012." Id. Mr. Lester "agreed and made an appointment with a Chase appraiser to come to his home to appraise the property for the loan modification," but "[a]fter the appointment was set, the appraiser called [him] and told him that she [the appraiser] was not qualified to appraise the property because the value of the loan was over $1,000,000 and that Chase would reschedule with another appraiser." Id. Mr. Lester "never heard back." Id. On July 30, 2012, Mr. Lester "received a letter from Chase notifying him that he would receive an update on the loan modification by August 14, 2012," and "[a]nother appraiser called to schedule an appointment toward the end of August." Id. On August 2, 2012, he "received a letter from Chase indicating that there `was help available at Chase at no fee' and that [he] should contact Chase and apply for a loan modification." Id. On August 13, 2012, he "received a letter from Chase notifying him to expect an update on the loan modification by August 28, 2012." Id. Chase then "introduced to [him] a new representative, Hillary Riley at (877) 496-9032," and he "left several messages for [her] several times and received only one voicemail message after numerous attempts and messages." Id.
Then, "[a]n appraiser showed up to the property when [Mr. Lester] was not present" and "did not leave a business card." Id. "A week later [Mr. Lester] checked in with Johana Garcia Ardon, apparently the Chase representative [who] replaced Hillary Riley." Id. "Johana explained that [Chase] had not received the appraisal." Id. Mr. Lester "left a voicemail with the second appraiser but received no return message after several calls." Id. Eventually, "the appraisal of the property was ultimately submitted to Chase." Id.
On August 27, 2012, Mr. Lester "received a letter from Chase indicating that `more time' was needed to process the loan modification and that he would receive an update of the loan modification by September 11, 2012." Id.
On August 28, 2012, CRC, again "as Trustee" under the Deed of Trust, recorded another notice of default in the official records of San Mateo County which indicated that Mr. Lester was $163,994.34 in arrears on his loan. RJN, ECF No. 8-1, Exh. C. Like the previously recorded notice, the notice states, in relevant part, that "the present beneficiary under such Deed of Trust, has executed and delivered to said Trustee [CRC], a written Declaration and Demand for Sale, and has deposited with said duly appointed Trustee [CRC], such Deed of Trust and all documents evidencing the obligations secured thereby, and has declared and does hereby declare all sums secured thereby immediately due and payable and has elected and does hereby elect to cause the trust property to be sold to satisfy the obligations secured thereby." RJN, ECF No. 8-1, Exh. C.
On September 7, 2012, Mr. Lester "received a letter from Chase notifying him [again] that `more time' was required to process the loan modification." Complaint, ECF No. 1 ¶ 65. On September 12, 2012, he "received a letter from Chase in response
On September 12, 2012, Mr. Lester "received a Notice of Default." Id. On September 14, 2012, he "submitted to Chase additional information verifying income and other requested data in connection with this fourth modification attempt." Id. On September 20, 2012, Mr. Lester "received a letter from Chase notifying him that after 2 reviews [he] was not eligible for a loan modification." Id.
Mr. Lester alleges that, "as he was put in Chase's `modification program,' was told by Chase that he would not be put into foreclosure proceedings, but as [he was] in this `program' Chase then continuously asked [him] for the same documentation[,] prolonging [his] damages and causing [him] to go further down the path of default instead of the promised path of loan modification." Id. ¶ 67. In sum, during this arduous process, Mr. Lester alleges that he "was led to believe that if he provided the requested documents, his loan would be permanently modified." Id. ¶ 69. "But instead of modifying [his] loan or at least attempting to modify it, Chase has simply put Plaintiff on the `dual track' where, as Chase told [him] to modify his loan through Chase's modification programs, they used this time to convince [him] to stop paying payments, force him into default without his knowledge, and to use this default to foreclose on [his] home." Id.
Mr. Lester filed the instant complaint against Chase and WaMu on October 24, 2012. Complaint, ECF No. 1. He asserts the following so-called causes of action: (1) Temporary Restraining Order; (2) Declaratory Relief; (3) Promissory Estoppel; (4) Breach of Implied Covenant of Good Faith and Fair Dealing; (5) Deceit — Intentional Misrepresentation; (6) Fraud and Deceit — Negligent Misrepresentation; (7) Deceit — Suppression of Material Facts; (8) Deceit — Promise Made Without Intent to Perform; (9) Quiet Title to Real Property; (10) Accounting; (11) Cancellation of Instruments; and (12) Violation of California Business and Professions Code § 17200. Id. ¶¶ 84-287.
Chase filed a motion to dismiss Mr. Lester's complaint on November 30, 2012. Motion, ECF No. 8. Mr. Lester filed an opposition brief, and Chase filed a reply brief. Opposition, ECF No. 11; Reply, ECF No. 12.
A court may dismiss a complaint under Federal Rule of Civil Procedure 12(b)(6) when it does not contain enough facts to state a claim to relief that is plausible on its face. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "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." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). "The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955.). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the `grounds' of his `entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements
In considering a motion to dismiss, a court must accept all of the plaintiff's allegations as true and construe them in the light most favorable to the plaintiff. See id. at 550, 127 S.Ct. 1955; see also Erickson v. Pardus, 551 U.S. 89, 93-94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007); Vasquez v. Los Angeles County, 487 F.3d 1246, 1249 (9th Cir.2007).
If the court dismisses the complaint, it should grant leave to amend even if no request to amend is made "unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir.2000) (quoting Cook, Perkiss and Liehe, Inc. v. Northern California Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir.1990)). But when a party repeatedly fails to cure deficiencies, the court may order dismissal without leave to amend. See Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir.1992) (affirming dismissal with prejudice where district court had instructed pro se plaintiff regarding deficiencies in prior order dismissing claim with leave to amend).
Mr. Lester's causes of action can be broken up into groups, based on the factual allegations underlying them. Accordingly, the court addresses Mr. Lester's causes of action in this way below.
Mr. Lester's first, second, ninth, and eleventh causes of action are premised on the argument that Chase has no standing to foreclose upon the Property. See Complaint, ECF No. 1 ¶¶ 84-88, 89-108, 208-19, 224-30. Chase argues that these causes of action must be dismissed because his "argument that the securitization of the Note somehow divests WaMu of [its] interest as the lender under the Deed of Trust" fails as he is "incorrect in his belief" that "WaMu no longer owned the beneficial interest in the [P]roperty and that Chase could not have purchased it." Motion, ECF No. 8 at 12; see id. at 12-13.
The court cannot address this argument because it is confused about what Mr. Lester's theory regarding the securitization of his loan actually is. First, it appears that his theory is this: that his loan was transferred to the WaMu 2007-HY7 Trust before the Trust's closing date of June 25, 2007, and that this means the WaMu 2007-HY7 Trust owns his loan and that Chase could not have purchased it from WaMu on September 25, 2008, and therefore Chase cannot foreclose. See id. ¶¶ 24, 25, 35, 95(6), 96; see also Javaheri v. JPMorgan Chase Bank, N.A., No. CV10-08185 ODW (FFMx), 2011 WL 2173786, at *1-2, *5-6 (C.D.Cal. June 2, 2011) (plaintiff asserted a similar theory against Chase; court granted in part and denied in part Chase's and motion to dismiss); Javaheri v. JPMorgan Chase Bank, N.A., No. CV10-08185 ODW (FFMx), 2012 WL 6140962, at *5-8 (C.D.Cal. Dec. 11, 2012) (court granted Chase's motion for summary judgment).
Without understanding Mr. Lester's allegations about the securitization of his loan, the court cannot address Chase's argument that nothing about that securitization prevents it from having standing to foreclose on the Property.
The question becomes, then, whether they should be dismissed with or without prejudice. To make this determination, the court finds it worthwhile to address Chase's other arguments. First, Chase argues that Mr. Lester asserts that Chase must physically "produce" or "possess" the Note to foreclose on the Property. Motion, ECF No. 8 at 14 (citing Complaint, ECF No. 1 ¶¶ 46-48. 50, 52). While it is true that under California Civil Code § 2924(a)(1) no party needs to physically possess the promissory note, see Sicairos v. NDEX West, LLC, No. 08cv2014-LAB (BLM), 2009 WL 385855, at *3 (S.D.Cal. Feb. 13, 2009), the court sees nothing in Mr. Lester's complaint that raises the issue
Second, Chase argues that Mr. Lester is precluded from challenging Chase's standing to foreclose under Gomes v. Countrywide Home Loans, Inc., 192 Cal.App.4th 1149, 121 Cal.Rptr.3d 819 (2011). Motion, ECF No. 8 at 15-16. The court disagrees. As Judge Chen has explained:
Tamburri v. Suntrust Mortgage, Inc., No. C-11-2899 EMC, 2011 WL 6294472, *4 (N.D.Cal. Dec. 15, 2011) (footnote omitted); see Naranjo v. SBMC Mortgage, No. 11-cv-2229-L(WVG), 2012 WL 3030370, at *3 (S.D.Cal. July 24, 2012) (finding defendants' reliance on Gomes to be "misguided" where plaintiff alleged "that the transfer of rights to the WaMu Trust is improper, thus Defendants consequently lack the legal right to either collect on the debt or enforce the underlying security interest"). Here, Mr. Lester does not simply seek to determine whether Chase is authorized to foreclose; rather, he specifically alleges that it is not and provides a specific factual basis for so alleging. Accordingly, this court, too, finds that Gomes does not preclude Mr. Lester from challenging Chase's standing to foreclose.
Third, Chase argues that Mr. Lester's first, second, ninth, eleventh, and twelfth causes of action fail because he has not alleged that he is willing and able to tender the full amount that he owes. Motion, ECF No. 8 at 16-18. Generally, the "tender rule" applies to claims to set aside a trustee's sale for procedural irregularities or alleged deficiencies in the sale notice. Robinson v. Bank of Am., No. 12-CV-00494-RMW, 2012 WL 1932842, at *3 (N.D.Cal. May 29, 2012); Tamburri, 2011 WL 6294472, at *3. "[T]he rationale behind the rule is that if plaintiffs could not have redeemed the property had the sale procedures been proper, any irregularities in the sale did not result in damages to the plaintiffs." Tamburri, 2011 WL 6294472, at *3 (quoting Cohn v. Bank of Am., No. 2:10-cv-00865 MCE KJN PS, 2011 WL 98840, at *9 (E.D.Cal. Jan. 12, 2011)).
Here, Mr. Lester asserts that Chase does not have authority to foreclose on the Property and, thus, that any foreclosure sale would be void. Accordingly, Mr. Lester does not need to allege tender. See Avila v. Wells Fargo Bank, No. C 12-01237 WHA, 2012 WL 2953117, at *15 (N.D.Cal. July 19, 2012) ("By alleging that the purported trustee, NDeX West, was not properly substituted as trustee, had no interest in the subject property, and thus was not authorized to initiate a non judicial foreclosure when it recorded the notice of default, plaintiff alleges that the foreclosure sale was void. As such, the tender rule does not apply.") (internal citation omitted); Vogan v. Wells Fargo Bank, No. 2:11-CV-02098-JAM-KJN, 2011 WL 5826016, at *7-8 (E.D.Cal. Nov. 17, 2011) ("The Court holds that the tender requirement does not apply to this case because Plaintiffs are challenging the beneficial interest held by U.S. Bank in the deed of trust, not the procedural sufficiency of the foreclosure itself."); see also In re Salazar, 448 B.R. 814, 819 (S.D.Cal.2011) ("If U.S. Bank was not authorized to foreclose the [Deed of Trust] under Civil Code section 2932.5, the foreclosure sale may be void, and Salazar would not need to tender
Finally, Chase also attacks Mr. Lester's first, second, ninth, and eleventh causes of action individually. With respect to Mr. Lester's first cause of action for "Temporary Restraining Order," as Chase correctly points out, an injunction is a remedy, not a cause of action. See Marlin v. Aimco Venezia, LLC, 154 Cal.App.4th 154, 162, 64 Cal.Rptr.3d 488 (2007) ("A `cause of action' must be distinguished from the remedy sought.... [T]he relief is not to be confounded with the cause of action, one not being determinative of the other. An injunction is a remedy, not a cause of action." (citations omitted)); see also Gomez v. Wells Fargo Home Mortgage, No. C 11-01725 LB, 2011 WL 5834949, at *13 (N.D.Cal. Nov. 21, 2011) ("Injunctive relief, ... `is a remedy, not a cause of action, and thus it must be tethered to some independent legal duty owed by the defendant.'") (quoting Martone v. Burgess, No. C 08-2379 CW, 2008 WL 3916022, at *3 (N.D.Cal. Aug. 25, 2008)); Ayala v. Bank of Am., No. 09CV 1946, 2010 WL 1568577, at *4 (S.D.Cal. Apr. 16, 2010). Mr. Lester states in his opposition brief that his cause of action "is a separate and independent cause of action based on the facts of this case," but he cites no authority in support of this statement, and the statement clearly conflicts with the authority cited above by the court. Accordingly, Mr. Lester's first "cause of action" is
With respect to Mr. Lester's second cause of action for "Declaratory Judgment," Chase argues that it fails because Mr. Lester fails to allege that he is willing and able to tender the amount he owes and because California law does not require physical possession of the Note. Motion, ECF No. 8 at 20-21. As stated above, the court finds that tender is not required here and that Mr. Lester does not appear to be asserting that Chase must have physical possession of the Note. Thus, Mr. Lester's second cause of action is
With respect to Mr. Lester's ninth cause of action for "Quiet Title," Chase argues that it fails because (1) he has not alleged that he is willing and able to tender the amount he owes, (2) securitization does not affect Chase's power of sale, and (3) he has not identified which Defendant asserts an adverse claim to the title. Motion, ECF No. 8 at 23-24.
In most circumstances, however, a requirement of an action to quiet title is an allegation that plaintiffs "are the rightful owners of the property, i.e., that they have satisfied their obligations under the deed of trust." Kelley v. Mortgage Elec. Registration Sys., 642 F.Supp.2d 1048, 1057 (N.D.Cal.2009). "Thus, it [normally] is dispositive as to this claim that, under California law, a borrower may not assert `quiet title' against a mortgagee without first paying the outstanding debt on the property." Rosenfeld, 732 F.Supp.2d at 975 (N.D.Cal.2010) (citing Miller v. Provost, 26 Cal.App.4th 1703, 1707, 33 Cal.Rptr.2d 288 (1994) ("a mortgagor of real property cannot, without paying his debt, quiet his title against the mortgagee") (citation omitted)). But here, as explained above, Mr. Lester does not need to allege tender because he alleges that Chase does not have authority to foreclose on the Property and, thus, that any foreclosure sale would be void. See Tamburri, 2011 WL 6294472, at *4; Dimock, 81 Cal.App.4th at 878, 97 Cal.Rptr.2d 255. Mr. Lester's quiet title cause of action, then, does not fail for lack of tender. See Montgomery v. Nat'l City Mortgage, No. C-12-1359 EMC, 2012 WL 1965601, at *12 (N.D.Cal. May 31, 2012) (plaintiff's quiet title cause of action did not fail for the lack of a tender allegation where it was based on the allegations that, because of "National's securitization of the loan," "none of the defendants is a holder of the Note, none of them can prove any interest in the Note, and none of them can prove that the Note is secured by the deed of trust"). Accordingly, Mr. Lester's ninth cause of action is
And with respect to Mr. Lester's eleventh cause of action for "Cancellation of Instruments," Chase argues that it fails because, contrary to Mr. Lester's allegations, the securitization of his loan "had no bearing on Chase's purchase of WaMu's interest on the loan." Motion, ECF No. 8 at 26. California Civil Code § 3412 provides that court-ordered cancellation of a written instrument is appropriate if "there is a reasonable apprehension that if left outstanding it may cause serious injury to a person against whom it is void or voidable...." Cal. Civ.Code § 3412. As described above, it appears that at least one of Mr. Lester's theories is that Chase did not purchase his loan from WaMu and so Chase has no interest in the deed of trust and the notices of default and notices of trustee's sale that were recorded in the official records of San Mateo County should be cancelled. As such, assuming that this is his theory, Mr. Lester has sufficiently alleged that these documents are void or voidable. His eleventh cause of action is
Mr. Lester's third, fourth, fifth, sixth, seventh, and eighth causes of action all relate to his allegations concerning his attempts to have his loan modified. See Complaint, ECF No. 1 ¶¶ 109-21, 122-35, 136-58, 159-77, 178-94, 195-207. Chase argues that these causes of action fail for several reasons.
First, Chase argues that Mr. Lester's third cause of action for promissory estoppel fails because (1) he is not willing and able to tender the amount he owes and (2) he does not sufficiently allege a promise. Motion, ECF No. 8 at 21-22. As for Chase's first argument, the court
To support his claim, Mr. Lester relies upon his allegations describing his efforts to get a loan modification. See Complaint, ECF No. 1 ¶¶ 62-83, 109-21. The gist of the claim is that Chase told him that it would consider him for a loan modification and would not foreclose on the Property during this time, but then he never received one even though he complied with all of Chase's requirements, and foreclosure proceedings were instituted. But Chase is right that Mr. Lester does not identify a "clear promise" made to him. For one, the court cannot tell whether the purported promise was that he would receive a loan modification or if it was that foreclosure proceedings would not be instituted, or both. In addition, the court cannot identify when or how such a promise was made. For instance, is it based on Chase's alleged representation that he "was told by Chase representatives that they could not modify his loan unless he was behind [on his] payments"? See id. ¶ 65. Is it based on the terms of the trial modification that he apparently entered into? See id. Is it based on other conversations he had with Chase personnel during the time he was discussing his loan modification applications? See id. On the Chase's "ad" regarding loan modifications? See id. ¶ 79. The court simply does not know. Because Mr. Lester does not identify a "clear promise," his third cause of action is
Second, Chase argues that Mr. Lester's fourth cause of action for breach of implied covenant of good faith and fair dealing fails because he does not identify a contract to which he is a party or a provision that Chase breached. Motion, ECF No. 8 at 22-23. The covenant of good faith and fair dealing is implied in every contract and prevents one party from "unfairly frustrating the other party's right to receive the benefits" of the contract. See Guz v. Bechtel Nat'l Inc., 24 Cal.4th 317, 349, 100 Cal.Rptr.2d 352, 8 P.3d 1089 (2000). To allege a claim for breach of the covenant of good faith and fair dealing, a plaintiff must allege the following elements: (1) the plaintiff and the defendant entered into a contract; (2) the plaintiff did all or substantially all of the things that the contract require him to do or that he was excused from having to do; (3) all conditions required for the defendant's performance had occurred; (4) the defendant unfairly interfered with the plaintiff's right to receive the benefits of the contract;
"Under California law, a claim for breach of the [implied covenant of good faith and fair dealing] is necessarily based on the existence of an underlying contractual relationship. The essence of the covenant is that no party to the contract will do anything which would deprive the others of the benefits of the contract." Wolf v. Wells Fargo Bank, N.A., No. C11-01337 WHA, 2011 WL 4831208 at *4 (N.D.Cal. Oct. 12, 2011) (citing McClain v. Octagon Plaza, LLC, 159 Cal.App.4th 784, 799, 71 Cal.Rptr.3d 885 (2008)). To establish a breach of the covenant, then, a plaintiff must establish the existence of a contractual obligation, along with conduct that frustrates the other party's rights to benefit from that contract. Id.
Like with Mr. Lester's promissory estoppel claim, his breach of the covenant of good faith and fair dealing claim fails because it is unclear what the contract is. It is true that he alleges that he "entered into a trial payment plan agreement with [Chase] in June 2010" and "was told that [] if partial payments were made[,] a permanent modification based on the terms offered would be made and that [Chase] would not foreclose on the [P]roperty," Complaint, ECF No. 1 ¶ 124, but he never alleges the specific terms of this agreement or in what form this agreement took (e.g., oral, written?). Moreover, he alleges that he entered into this agreement in June 2010, but his earlier allegation in Paragraph 65 of his complaint suggests that he was already "in the middle of a `Trial Period Plan'" at that time. Given this confusion, the court believes the best course of action is to dismiss Mr. Lester's claim and grant him leave to clarify it. Accordingly, the court
Third, Chase argues that Mr. Lester's fifth, sixth, seventh, and eighth causes of action fail because (1) he fails to meet the heightened pleading standards under Federal Rule of Civil Procedure 9(b) and (2) he does not allege any misrepresentations. Motion, ECF No. 8 at 18-20. "A cause of action for fraud [under California law] requires the plaintiff to prove (a) a knowingly false misrepresentation by the defendant, (b) made with the intent to deceive or to induce reliance by the plaintiff, (c) justifiable reliance by the plaintiff, and (d) resulting damages." Glenn K. Jackson Inc. v. Roe, 273 F.3d 1192 (9th Cir.2001) (quoting Wilkins v. Nat'l Broadcasting Co., Inc., 71 Cal.App.4th 1066, 1082, 84 Cal.Rptr.2d 329 (1999)); see also Cal. Civ.Code § 1572. Moreover, claims alleging fraud are subject to the heightened pleading requirements of Federal Rule of Civil Procedure 9(b). See Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1103-04 (9th Cir.2003) (if "the claim is said to be `grounded in fraud' or to `sound in fraud,' [then] the pleading of that claim as a whole must satisfy the particularity requirement of Rule 9(b)"); Kaplan v. Rose, 49 F.3d 1363, 1370 (9th Cir.1994) (claims based in fraud "must state precisely the time, place, and nature of the misleading statements, misrepresentations, and specific acts of fraud").
The court agrees with Chase that Mr. Lester's allegations are unclear (despite being voluminous). For example, in Paragraph 137, Mr. Lester alleges that Chase represented that (1) the Note "would be placed in the loan modification program," (2) "he should stop making his
In short, the court is unclear what, exactly, Mr. Lester alleges Chase represented to him or why, exactly, those representations were false or misleading. Accordingly, Mr. Lester's fifth, sixth, seventh, and eighth causes of action are
Mr. Lester alleges two other causes of action, and they do not fit into the two groups above. With respect to Mr. Lester's tenth cause of action for "Accounting," see Complaint, ECF No. 1 ¶¶ 220-23, Chase argues that it fails because no fiduciary duty exists between it and Mr. Lester and because any accounting would not be complicated, Motion, ECF No. 8 at 24-25. Accounting is an independent cause of action in equity. Penney v. Wells Fargo Bank, NA, No. 2:11-cv-05567-ODW (MANx), 2012 WL 2071705, at *13 (C.D.Cal. June 8, 2012) (citing Teselle v. McLaughlin, 173 Cal.App.4th 156, 180, 92 Cal.Rptr.3d 696 (2009)). "A cause of action for an accounting requires a showing that a relationship exists between the plaintiff and defendant that requires an accounting, and that some balance is due the plaintiff that can only be ascertained by an accounting." Teselle, 173 Cal.App.4th at 179, 92 Cal.Rptr.3d 696 (citing Brea v. McGlashan, 3 Cal.App.2d 454, 460, 39 P.2d 877 (1934)); see Mendoza v. Countrywide Home Loans, Inc., No. C-09-3648 S.C. 2009 WL 4706350, at *8 (N.D.Cal. Dec. 3, 2009). No fiduciary relationship is required. Teselle, 173 Cal. App.4th at 179, 92 Cal.Rptr.3d 696; see Shkolnikov v. JPMorgan Chase Bank, No. 12-03996 JCS, 2012 WL 6553988, at *23 (N.D.Cal. Dec. 14, 2012). But "[a]n action for accounting is not available where the plaintiff alleges the right to recover a sum certain or a sum that can be made certain
Here, Mr. Lester alleges that he "received a Notice of Default for arrearages that included undisclosed fees and costs associated with the foreclosure proceedings and fees for forced placed insurance at a time [when he] maintained homeowner's insurance" and that determining the amount of these fees and costs "is so complicated that an accounting is necessary to determine the sum certain charged back to the mortgage after Defendants rescinded the forced place insurance." Complaint, ECF No. 1 ¶¶ 221-22. Chase says that "[a]ll that would need to be done to determine the sum certain would be to determine the period that [Mr. Lester] had his own insurance, and see what insurance premiums were charged to his account during that time," Motion, ECF No. 8 at 17, but given the difficulties Mr. Lester has had in receiving timely and clear information from Chase, the court finds Mr. Lester's allegations to be sufficient. His tenth cause of action
Mr. Lester's twelfth cause of action is for violation of California's Unfair Competition Law, Cal. Bus. & Prof.Code § 17200 et seq. See Complaint, ECF No. 1 ¶¶ 231-287. From what the court can tell, it appears to be based on several theories: first, Mr. Lester alleges simply that "Defendants" "implement[ed] and perpetrat[ed] [a] fraudulent scheme [to] induc[e] [Mr. Lester] to accept mortgages based on inflated property valuations and [an] undisclosed disregard of their own underwriting standards and [then] sell[ing][] overpriced collateralized mortgage pools" (see id. ¶ 233); second, he alleges that "Defendants" disclosed some unspecified private information of his in violation of his privacy rights under the California Constitution (see id. ¶¶ 234-48); third, that "Defendants" did not diligently try to contact him before recording a notice of default, in violation of California Civil Code § 2923.5 (see id. ¶ 249); fourth, that "Defendants" lacked standing to foreclose (see id. ¶ 249); and fifth, that "Defendants" fraudulently misrepresented that he would receive a loan modification (see id. ¶¶ 281-82).
None of these bases, as alleged, are sufficient to support Mr. Lester's Unfair Competition Law claim. His first theory is conclusory and not supported by factual allegations. His second theory is insufficient because he does not allege, specifically, what private information was shared and how, exactly, its sharing was unlawful. His third theory, while possible, is unsupported. Nowhere else in the entire complaint does Mr. Lester allege anything about not being contacted in violation of California Civil Code § 2923.5 or about why his other contact with Chase representatives do not satisfy this requirement. And he court already determined, with respect to his first, second, ninth, and eleventh causes of action, that his fourth theory, as alleged, is unclear. Likewise, the court already determined, with respect to his third, fourth, fifth, sixth, seventh, and eighth causes of action, that his fifth theory is unclear. Accordingly, Mr. Lester's twelfth cause of action is
Based on the foregoing, the court
Under Federal Rule of Evidence 201, "[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." Fed.R.Evid. 201(b). A "high degree of indisputability is the essential prerequisite" to taking judicial notice and "the tradition [of taking judicial notice] has been one of caution in requiring that the matter be beyond reasonable controversy." Fed.R.Evid. 201(a) & (b) advisory committee's notes (emphasis added). A court, then, may take judicial notice of undisputed facts contained in public records, but it may not take judicial notice of disputed ones. See Lee v. City of Los Angeles, 250 F.3d 668, 689-90 (9th Cir.2001); see also Muhammad v. California, C-10-1449-SBA, 2011 WL 873151, at *4 (N.D.Cal. Mar. 11, 2011) (denying request for judicial notice of an address contained on a complaint filed in another case because the "underlying facts relevant to Plaintiff's residence are disputed and otherwise do not meet the requirements of Rule 201"). Here, neither party objects to the court taking judicial notice of the existence of these documents — all of which are public records — but Mr. Lester does dispute the "facts" contained within them (and, in fact, this appears to be the basis of one of the theories of his case). Therefore, the court takes judicial notice only of the existence of the documents.
