MARGARET M. MORROW, District Judge.
On February 6, 2015, Maria Elena Hernandez filed this action against Select Portfolio Servicing, Inc. ("SPS"), Bank of America, N.A. ("BofA"), and various fictitious defendants in Ventura Superior Court.
On April 22, 2015, defendants filed a motion to dismiss the first amended complaint for failure to state a claim on which relief can be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
Hernandez contends that she is the owner of real property located at 293 Bellafonte Court, Camarillo, California 93012.
Beginning in 2012, Hernandez purportedly submitted a number of loan modification applications.
On January 17, 2014, a notice of default was recorded.
Hernandez contends that on April 18, 2014 SPS recorded a notice of trustee sale while her loan modification application was under review, and before any decision respecting it had been made.
On July 24, 2014, SPS allegedly sent Hernandez a letter stating that there were no modification options available; the letter also purportedly advised that SPS had determined Hernandez's income was $0.00.
Hernandez contends that SPS reopened her file on approximately July 24, 2014, and requested additional documents no fewer than ten times.
Defendants ask the court take judicial notice of five documents related to Hernandez's claims: (1) a deed of trust; (2) an assignment of deed of trust; (3) a notice of default and election to sell under deed of trust; (4) a notice of trustee's sale; and (5) a list of mortgage servicers that have foreclosed on more than 175 residential properties during the applicable reporting period.
Thus, in ruling on a motion to dismiss, the court can consider material that is subject to judicial notice under Rule 201 of the Federal Rules of Evidence. FED.R.EVID. 201. Under Rule 201, the court can judicially notice "[o]fficial acts of the legislative, executive, and judicial departments of the United States," and "[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy." Courts have held that "[j]udicial notice is appropriate for records and `reports of administrative bodies.'" United States v. 14.02 Acres of Land More or Less in Fresno County, 547 F.3d 943, 955 (9th Cir. 2008) (quoting Interstate Natural Gas Co. v. Southern California Gas Co., 209 F.2d 380, 385 (9th Cir. 1954)); Castillo-Villagra v. INS, 972 F.2d 1017, 1026 (9th Cir. 1992) (holding that notice can be taken of facts capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be question)"). The first amended complaint refers extensively to the deed of trust, notice of default, and notice of trustee's sale. These documents are therefore incorporated by reference in the pleading, and the court need not affirmatively take judicial notice of them. See Branch, 14 F.3d at 453.
Exhibit B to the request for judicial notice is a notice of assignment of deed of trust recorded by the Ventura County Clerk on May 14, 2012. The document is both time and date stamped, and has a record number. Other courts have taken judicial notice of such documents as public filings. See Velazquez v. GMAC Mortgage Corp., 605 F.Supp.2d 1049, 1057-58 (C.D. Cal. 2008) (taking judicial notice of documents recorded by the Los Angeles County Recorder's Office, including deeds of trust); see also Krug v. Wells Fargo Bank, N.A., No. 11-CV-5190 YGR, 2012 WL 1980860, *2 (N.D. Cal. June 1, 2012) (public records are judicially noticeable under Rule 201); Grant v. Aurora Loan Services, Inc., 736 F.Supp.2d 1257, 1264 (C.D. Cal. 2010) (noting that a "[party] provided a reference number for the document, showing that it was in fact recorded; this demonstrates that it is a public record"); Fimbres v. Chapel Mortgage Corp., No. 09-CV-0886-IEG (POR), 2009 WL 4163332, *3 (S.D. Cal. Nov. 20, 2009) (taking judicial notice of a deed of trust, notice of default, notice of trustee's sale, assignment of deed of trust, and substitution of trustee as each was a public record); Angulo v. Countrywide Home Loans, Inc., No. 1:09-CV-877-AWI-SMS, 2009 WL 3427179, *3 n. 3 (E.D. Cal. Oct. 26, 2009) ("The Deed of Trust and Notice of Default are matters of public record. As such, this court may consider these foreclosure documents"); Distor v. U.S. Bank NA, No. C 09-02086 SI, 2009 WL 3429700, *2 (N.D. Cal. Oct. 22, 2009) (finding that a deed of trust, notice of default and election to sell under deed of trust, and notice of trustee's sale were matters of public record and thus proper subjects of judicial notice). The court therefore takes judicial notice of the existence of the assignment of deed of trust, but not the veracity of the facts recited therein. See Lee v. City of Los Angeles, 250 F.3d 668, 690 (9th Cir. 2001) (judicial notice of public records is limited to the existence of the documents, not the truth of the matters stated in them).
Defendants also seek judicial notice of a document listing mortgage servicers that foreclosed on more than 175 residential properties in 2012. Because defendants seek improperly to rely on the document for its truth, i.e., that SPS foreclosed on more than 175 residential properties in 2012, the court declines to take judicial notice of it. See Illumina, Inc. v. Ariosa Diagnostics, Inc., No. CV 14-01921 SI, 2014 WL 3897076, *5 (N.D. Cal. Aug. 7, 2014) ("It is improper for a court to take judicial notice of an exhibit for the truth of the matters asserted therein"); Troy Grp., Inc. v. Tilson, 364 F.Supp.2d 1149, 1152 (C.D. Cal. 2005) (judicial notice cannot be used "to prove the truth of documents' contents," citing Lovelace v. Software Spectrum, Inc., 78 F.3d 1015, 1018 (5th Cir. 1996)).
A Rule 12(b)(6) motion tests the legal sufficiency of the claims asserted in the complaint. A Rule 12(b)(6) dismissal is proper only where there is either a "lack of a cognizable legal theory," or "the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988). The court must accept all factual allegations pleaded in the complaint as true, and construe them and draw all reasonable inferences from them in favor of the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996); Mier v. Owens, 57 F.3d 747, 750 (9th Cir. 1995).
The court need not, however, accept as true unreasonable inferences or conclusory legal allegations cast in the form of factual allegations. See Bell Atlantic Corp. v. Twombly, 540 U.S. 544, 555 (2007) ("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 of a cause of action will not do"). Thus, a plaintiff's complaint must "contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.' . . . 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, 678 (2009); see also Twombly, 550 U.S. at 555 ("Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)" (citations omitted)); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009) ("[F]or a complaint to survive a motion to dismiss, the non-conclusory `factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief," citing Iqbal and Twombly).
As an initial matter, the court considers whether Hernandez's allegations concerning the purportedly improper securitization of her loan can support the claims she alleges in the complaint. As is apparent from her factual allegations, Hernandez contends defendants lacked authority to foreclose on the property because her loan was improperly securitized; specifically, she contends that defendants failed to comply with the terms of the trust's pooling and servicing agreement ("PSA"). To the extent her complaint is based on purported irregularities in the securitization process, it is deficient and must be dismissed. Courts have routinely found that borrowers lack standing to assert claims based on defects in the securitization process. See Jenkins v. JP Morgan Chase Bank, N.A., 216 Cal.App.4th 497, 515 (2013) ("As an unrelated third party to the alleged securitization, and any other subsequent transfers of the beneficial interest under the promissory note, Jenkins lacks standing to enforce any agreements, including the investment trust's pooling and servicing agreement, relating to such transactions."); see also Shkolnikov v. JPMorgan Chase Bank, No. 12-03996 JCS, 2012 WL 6553988, *13 (N.D. Cal. Dec. 14, 2012) (dismissing a claim that defendants assigned plaintiff's loan to a trust after the closing date specified in a pooling agreement because "[t]he majority position is that plaintiffs lack standing to challenge noncompliance with a PSA in securitization unless they are parties to the PSA or third party beneficiaries of the PSA"); Almutarreb v. Bank of New York Trust Co., N.A., No. C-12-3061 EMC, 2012 WL 4371410, *2 (N.D. Cal. Sept. 24, 2012) (disagreeing with Vogan and Johnson, cited below, and finding that, because plaintiffs were neither parties to, nor third party beneficiaries of, the PSA, they lacked standing to challenge the transfer of a loan under the PSA); Sami v. Wells Fargo Bank, No. C 12-00108 DMR, 2012 WL 967051, *5-6 (N.D. Cal. Mar. 21, 2012) (rejecting a claim "that Wells Fargo failed to transfer or assign the note or Deed of Trust to the Securitized Trust by the `closing date,' and that therefore, `under the PSA, any alleged assignment beyond the specified closing date' is void" because plaintiff lacked standing); Junger v. Bank of America, N.A., No. CV 11-10419 CAS, 2012 WL 603262, *1, 3 (C.D. Cal. Feb. 24, 2012) (dismissing plaintiff's claim that "defendants failed to adhere to the January 31, 2006 deadline for transferring the note as required by the pool servicing agreement," because plaintiff lacked standing to assert such a claim); Bascos v. Federal Home Loan Mortg. Corp., No. CV 11-3968 JFW, 2011 WL 3157063, *6 (C.D. Cal. July 22, 2011) ("To the extent Plaintiff challenges the securitization of his loan because Freddie Mac failed to comply with the terms of its securitization agreement, Plaintiff has no standing to challenge the validity of the securitization of the loan as he is not an investor of the loan trust"); Livonia Prop. Holdings, L.L.C. v. 12840-12976 Farmington Road Holdings, LLC, 717 F.Supp.2d 724, 737 (E.D. Mich. 2010) (holding that a plaintiff who was not a party to assignments of a loan "lacks standing to challenge their validity or the parties' compliance with those contracts"). But see Johnson v. HSBC Bank USA, N.A., No. 3:11-cv-2091-JM-WVG, 2012 WL 928433, *2 (S.D. Cal. Mar. 19, 2012) (denying a motion to dismiss various state law claims based on allegations that a note was not properly assigned in part because "[p]laintiff has alleged that the assignment was made after the closing date of the trust, as required by Section 2.1 of the PSA"); Vogan v. Wells Fargo Bank, N.A., No. 2:11-CV-02098-JAM-KJN, 2011 WL 5826016, *7 (E.D. Cal. Nov. 17, 2011) (denying a motion to dismiss an unfair competition claim under § 17200 where "[p]laintiffs alleged that the recorded assignment was executed well after the closing date of the MBS to which it was allegedly sold, giving rise to a plausible inference that at least some part of the recorded assignment was fabricated").
The court finds the majority approach persuasive. Even if procedurally defective, any transaction through which the original lender or its assignee securitized its interest in the note and deed of trust that occurred subsequent to the date Countrywide loaned money to Hernandez does not impact Hernandez. See Sami, 2012 WL 967051 at *5 ("[S]ecuritization merely creates a separate contract, distinct from [p]laintiffs[`] debt obligations under the note, and does not change the relationship of the parties in any way"); Vieira v. Prospect Mortg., LLC, No. SACV 11-1780 AG, 2012 WL 3356947, *4 (C.D. Cal. July 9, 2012) ("Nor does improper securitization excuse a borrower from loan repayment obligations").
Even if Hernandez is correct that the loan was not properly securitized, "that does not mean that the owner of the note and deed of trust could not . . . foreclose"; rather, it "simply mean[s] that the loan was not put into the trust (i.e., the investment vehicle)." Frazier v. Aegis Wholesale Corp., No. C-11-4850 EMC, 2011 WL 6303391, *5 (N.D. Cal. Dec. 16, 2011). Such an infirmity would not affect SPS's "authority [as] set forth in the deed and assignment documents to initiate foreclosure." Id. Because Hernandez has not alleged that she was a party to or third party beneficiary of the PSA, she does not have standing to allege claims based on improper securitization of the loan. Her assertion that the assignment of the note and deed of trust was legally ineffective is therefore unavailing.
Hernandez disputes this conclusion. She cites Glaski v. Bank of America, N.A., 218 Cal.App.4th 1079 (2013), in which the California Court of Appeal held that a borrower, whose loan had been transferred to a trust formed under New York law, had standing to challenge the assignment of his note because defendants failed to effect the assignment before the trust's closing date, creating a defect in the chain of transfer. Id. at 1096. "Glaski has been heavily criticized both by courts in this district and by other California Courts of Appeal[ ]." See Jara v. Aurora Loan Servs., LLC, No. CV 11-00419 LB, 2014 WL 6983319, *2 (N.D. Cal. Dec. 9, 2014). As Judge Lucy Koh explained in Moran v. GMAC Mortg., LLC, No. 13-CV-04981-LHK, 2014 WL 3853833, *5 (N.D. Cal. Aug. 5, 2014):
The Ninth Circuit has also declined to follow Glaski. See In re Davies, 565 Fed. Appx. 630, 633 (9th Cir. Mar. 24, 2014) (Unpub. Disp.) ("We recognize that California courts have divided over this issue. But the weight of authority holds that debtors in Davies' shoes — who are not parties to the pooling and servicing agreements — cannot challenge them. We believe the California Supreme Court, if confronted with this issue, would so hold"). As noted, the court agrees with the vast majority of federal and state courts, and concludes that a borrower such as Hernandez who is not a party to the PSA lacks standing to challenge irregularities in the securitization of her note. To the extent Hernandez's claims are based on a contention that defendants lacked authority to initiate foreclosure proceedings because of the purportedly defective securitization of the note, therefore, they must be dismissed.
Defendants contend that Hernandez's Civil Code § 2924(a)(6) claim must be dismissed for a variety of reasons. Section 2924(a)(6) provides:
Defendants contend Hernandez's § 2924(a)(6) claim must be dismissed because it is based entirely on a contention that SPS lacked authority to initiate foreclosure proceedings due to improper securitization of the loan. Section 2924 does not require that the party initiating foreclosure proceedings have a beneficial or economic interest in the note in order to foreclose. See In re Cedano, 470 B.R. 522, 530 (9th Cir. BAP 2012) ("Under Cal. Civ. Code § 2924, the party initiating foreclosure proceedings is not required to have a beneficial or economic interest in the note in order to foreclose"); McLaughlin v. Wells Fargo Bank, N.A., No. SA CV 12-1114-DOC, 2012 WL 5994924, *6 (C.D. Cal. Nov. 30, 2012) ("There is no stated requirement in California's non-judicial foreclosure scheme that requires a beneficial interest in the Note to foreclose. Rather, the statute broadly allows a trustee, mortgagee, beneficiary, or any of their agents to initiate non-judicial foreclosure proceedings. Accordingly, the statute does not require a beneficial interest in both the Note and the Deed of Trust to commence a non-judicial foreclosure sale," quoting Lane v. Vitek Real Estate Indus. Grp., 713 F.Supp.2d 1092, 1099 (E.D. Cal. 2010)); see also Caovilla v. Wells Fargo Bank, N.A., No. 13 CV 1003 JSC, 2013 WL 2153855, *4 (N.D. Cal. May 16, 2013) (same). As the statute makes clear, a "trustee, mortgagee, or beneficiary, or any of their authorized agents" can commence non-judicial foreclosure proceedings. See CAL. CIV. CODE § 2924(a)(1).
Because the only basis on which Hernandez contests defendants' authority to foreclose is the fact that the note and deed of trust were improperly securitized, and because the court has concluded that that theory is not viable, this claim is also deficient and must be dismissed.
Although Hernandez's § 2924(a)(6) claim fails because it is based on improper securitization, it fails for another reason as well — failure adequately to allege damages. Hernandez seeks money damages on this claim. At least one California district court has questioned whether "there [i]s any relief available for violations of § 2924." Penermon v. Wells Fargo Bank, N.A., 47 F.Supp.3d 982, 996 (N.D. Cal. 2014). In Penermon, the court ordered the parties to brief whether § 2924 authorized an award of money damages. After finding plaintiff's authority inapposite, the court dismissed the claim with leave to identify applicable statutory authority authorizing the recovery of money damages. It noted it did "not believe that it [wa]s authorized to provide money damages for a violation of § 2924 as it was excluded from 2924.12, which explicitly provides for statutory damages for various violations of HBOR and, therefore, the non-judicial foreclosure scheme." Id. at 997.
The court finds Penermon persuasive. Section 2924.12 sets forth a statutory scheme for redressing violations of the HBOR; despite the fact that it references various other HBOR statutes, § 2924.12 does not mention § 2924(a). See, e.g., CAL. CIV. CODE § 2924.12 ("After a trustee's deed upon sale has been recorded, a mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent shall be liable to a borrower for actual economic damages pursuant to Section 3281, resulting from a material violation of Section 2923.55, 2923.6, 2923.7, 2924.9, 2924.10, 2924.11, or 2924.17"). See also Harry D. Miller and Marvin B. Starr, MILLER AND STARR CALIFORNIA REAL ESTATE 3D, § 10:185 n. 25 (3d ed. 2014) ("The statutory damages remedy is applicable only for violation of Civ. Code, §§ 2923.55, 2923.6, 2923.7, 2924.9, 2924.10, 2924.11, 2924.17, and 2924.18"). Because the California legislature clearly provided money damages as a remedy for certain HBOR violations, but not for others, the court is constrained to conclude that it did not intend to permit the recovery of money damages for a § 2924(a)(6) violation. For that reason, and absent citation to authority suggesting otherwise, Hernandez's claim for money damages resulting from defendants' alleged violation of § 2924(a)(6) does not appear to be cognizable. Because defendants do not seek dismissal on this ground, however, the court declines to dismiss the cause of action on this basis at this time; Hernandez is directed, however, to note the court's discussion of this issue, and cite appropriate authority authorizing the recovery of money damages if she elects to replead this claim.
Civil Code § 2923.6 prohibits a lender from "dual tracking" — i.e., "initiating foreclosure proceedings when there is a pending `complete application for a first lien loan modification.'" Stokes v. CitiMortgage, Inc., No. CV 14-00278 BRO (SHx), 2014 WL 4359193, *5 (C.D. Cal. Sept. 3, 2014). An application is deemed to be pending until any of the following occurs:
The court agrees with defendants that this claim is deficiently pled because Hernandez does not allege that a notice of default was filed while a complete first lien loan modification application was pending. Hernandez alleges that the notice of default was filed on January 17, 2014; she asserts that her complete first lien loan modification application was not submitted to SPS until February 10, 2014, however.
There are additional reasons the claim fails, however. Even had Hernandez alleged that a notice of default was filed after she submitted a loan modification application and while it was pending, she does not plausibly allege that the application was "complete" in the sense § 2923.6(c) requires. Hernandez pleads, in conclusory fashion, that she submitted "a
Hernandez's allegation that she submitted a complete loan modification application is not only conclusory, but is contradicted by other allegations in the complaint. Although she alleges the application was "complete" on February 10, 2014, she asserts that SPS requested additional information from her on April 14, 2014, and that she requested additional time to comply with the request.
For all of these reasons, the claim is inadequately pled and must be dismissed.
To allege a claim for quiet title, the complaint must include a description of "[t]he title of the plaintiff as to which a determination . . . is sought and the basis of the title," and "[t]he adverse claims to the title of the plaintiff against which a determination is sought." CAL. CODE CIV. PROC. § 761.020. "A plaintiff is also required to name the `specific adverse claims' that form the basis of the property dispute." Ortiz v. Accredited Home Lenders, Inc., 639 F.Supp.2d 1159, 1168 (S.D. Cal. 2009) (quoting CAL. CODE CIV. PROC.§ 761.020, cmt. at ¶ 3).
Defendants seek dismissal of Hernandez's quiet title claim because she fails to allege a valid tender of the outstanding loan balance. "[U]nder California law, `[a] valid and viable tender of payment of the indebtedness owing is essential to an action to cancel a voidable sale under a deed of trust.'" Agbabiaka v. HSBC Bank USA Nat. Association, No. 09-05583 JSW, 2010 WL 1609974, *6 (N.D. Cal. Apr. 20, 2010) (quoting Karlsen v. American Savings and Loan Assoc., 15 Cal.App.3d 112, 117-18 (1971)); see also Lester v. J.P. Morgan Chase Bank, 926 F.Supp.2d 1081, 1092 (N.D. Cal. 2013) ("Generally, the `tender rule' applies to claims to set aside a trustee's sale for procedural irregularities or alleged deficiencies in the sale notice"). "The tender rule requires a plaintiff to (1) `demonstrate a willingness to pay' and (2) `show the ability to pay.'" Farah v. Wells Fargo Home Mortgage, No. 5:13-cv-01127-PSG, 2014 WL 261562, *2 (C.D. Cal. Jan. 23, 2014) (quoting In re Worcester, 811 F.2d 1224, 1231 (9th Cir. 1987)). "The rationale behind the rule[ ] is that if [the borrower] could not have redeemed the property had the sale procedures been proper, any irregularities in the sale did not result in damages to the [borrower]." Id. (quoting Lona v. Citibank, N.A., 202 Cal.App.4th 89, 112 (2011) (second and third alterations original)).
The tender rule requires that a plaintiff allege tender as an element of any cause of action that is "implicitly integrated" with a foreclosure sale. Arnolds Management Corp. v. Eischen, 158 Cal.App.3d 575, 579 (1984) ("A cause of action `implicitly integrated' with the irregular sale fails unless the trustor can allege and establish a valid tender"); see also Adesokan v. U.S. Bank, N.A., No. 1:11-cv-01236-LJO-SKO, 2012 WL 395969, *6 (E.D. Cal. Feb. 7, 2012) ("[T]o the extent that Plaintiff's fraud claims are predicated on irregularities or deficiencies in the foreclosure sale procedures, the claims are subject to the tender rule. A failure to tender the amount of indebtedness bars any claims `implicitly integrated' with foreclosure," citing Arnolds Management Corp., 158 Cal.App.3d at 579)); Montoya v. Countrywide Bank, No. C09-00641 JW, 2009 WL 1813973, *11-12 (N.D. Cal. June 25, 2009) ("Under California law, the `tender rule' requires that as a precondition to challenging a foreclosure sale, or any cause of action implicitly integrated to the sale, the borrower must make a valid and viable tender of payment of the debt"). Thus, it prevents "a court from uselessly setting aside a foreclosure sale on a technical ground when the party making the challenge has not established his ability to purchase the property." Williams v. Countrywide Home Loans, No. C 99-0242 S.C. 1999 WL 740375, *2 (N.D. Cal. Sept. 15, 1999). See also FPCI RE-HAB 01 v. E&G Investments, Ltd., 207 Cal.App.3d 1018, 1022 (1989) (stating that the rationale behind the rule is that if the plaintiff could not have redeemed the property had the sale procedures been proper, any irregularities in the sale did not result in damages to the plaintiff).
Allegations concerning tender must go beyond mere conclusory assertions that plaintiff has offered to tender the amount of his or her indebtedness. Flores v. EMC Mortgage Co., 997 F.Supp.2d 1088, 1107 (E.D. Cal. 2014) (holding that plaintiff's allegation that `[he] is ready, willing, and able to unconditionally tender his obligation to the true holder in due course of Note and Deed of Trust' was conclusory and insufficient to plead tender); Garcia v. Seterus, Inc., No. CV F 12-2049 LJO SAB, 2013 WL 1281565, *8 (E.D. Cal. Mar. 27, 2013) ("Neither the complaint nor record references Ms. Garcia's credible tender of indebtedness or meaningful ability to do so. The complaint makes the conclusory allegation that Ms. Garcia has offered to and is ready to tender her obligation. The absence of facts to support the tender allegation render it a mere conclusion lacking credibility, especially considering Ms. Garcia's bankruptcy and default"); Chavers v. GMAC Mortgage, No. 2:11-cv-01097-ODW (SSx), 2012 WL 2343202, *10 (C.D. Cal. June 20, 2012) (a conclusory allegation of tender does not suffice to plead a "credible" tender for purposes of a quiet title claim).
In determining whether plaintiff has adequately alleged an ability to pay the outstanding amount, courts often consider whether plaintiff has previously defaulted. Madlaing v. JPMorgan Chase Bank, N.A., No. CV F 12-2069 LJO SMS, 2013 WL 2403379, *7 (E.D. Cal. May 31, 2013) ("The record's silence on [plaintiff's] tender of or ability to tender amounts outstanding is construed as his concession of inability to do so, especially considering his more than two years of remaining in default"); Bever v. Cal. W. Reconveyance Corp., No. 1:11-CV-1584 AWI SKO, 2013 WL 5492154, *4 (E.D. Cal. Oct. 2, 2013) (Assuming that Bever's tender offer is sufficiently unequivocal, the offer is not credible. First, Bever is in default . . ."); Anaya v. Advisors Lending Group, No. CV F 09-1191 LJO DLB, 2009 WL 2424037, *10 (E.D. Cal. Aug. 5, 2009) ("Plaintiff does not deny that she is in default on her home loan. Plaintiff offers nothing to indicate that she is able to tender her debt").
Hernandez does not offer make a conclusory allegation that she tendered or has the present ability to tender the amount due on her mortgage. The tender rule, however, is not absolute; several exceptions apply. First, "a tender may not be required where it would be inequitable to do so." Onofrio v. Rice, 55 Cal.App.4th 413, 424 (1997). Second, a number of courts have held that the rule applies only where plaintiff seeks to set aside a completed sale, rather than to enjoin a pending sale. Lester, 926 F.Supp.2d at 1093 (collecting cases); see also Barrionuevo v. Chase Bank, N.A., 885 F.Supp.2d 964, 973-74 (N.D. Cal. 2012) (collecting cases); Chan Tang v. Bank of America, N.A., No. SACV 11-2048 DOC (DTBx), 2012 WL 960373, *4-7 (C.D. Cal. Mar. 19, 2012) (discussing a split of authority as to whether the tender rule applies to pending foreclosure sales, and declining to apply the rule pre-sale because "[t]he situation presented by a pending foreclosure is entirely different from one where the sale has already occurred. When the sale has occurred, unwinding it requires expending significant judicial resources because a bona fide purchaser has taken title; this process often involves third parties not present in a pending sale situation. When the sale is still pending, postponing it imposes only a modicum of delay, ensures that all of the legally required paperwork is in order, and still allows lenders to recover subject properties once they have shown that all of their documentation is proper").
Third, a number of federal courts have declined to apply the tender rule when plaintiff alleges that defendant lacked authority to foreclose on the property, and thus that any foreclosure sale was void rather than voidable. Subramani v. Wells Fargo Bank N.A., No. C 13-1605 S.C. 2013 WL 5913789, *4 (N.D. Cal. Oct. 31, 2013) (noting that courts have found an exception to the tender rule if "a sale is void, rather than simply voidable," as when an incorrect trustee forecloses on a property); Rockridge Trust v. Wells Fargo, N.A., 985 F.Supp.2d 1110, 1147 (N.D. Cal. 2013) ("Several courts have refused to apply the tender requirement where plaintiff alleges that the defendant lacks authority to foreclose on the property and, thus, that any foreclosure sale would be void rather than merely voidable"); Lester, 926 F.Supp.2d at 1093 ("[W]here a plaintiff alleges that the entity lacked authority to foreclose on the property, the foreclosure sale would be void. And where a sale is void, rather than simply voidable, tender is not required" (citation and internal quotation marks omitted)); Barrionuevo, 885 F.Supp.2d at 970-71 ("[W]here a sale is `void,' rather than simply voidable, tender is not required. A sale that is deemed void means, in its strictest sense that it has no force and effect, whereas one that is deemed `voidable' can be `avoided' or set aside as a matter of equity. In a voidable sale, tender is required based on the theory that one who is relying upon equity in overcoming a voidable sale must show that he is able to perform his obligations under the contract so that equity will not have been employed for an idle purpose. That reasoning does not extend to a sale that is void ab initio, since the contract underlying such a transaction is a nullity with no force or effect as opposed to one which may be set aside in reliance on equity" (citations, quotation marks, and brackets omitted)).
Although Hernandez pleads that defendants lacked authority to foreclose due to the improper securitization of her loan, the court has concluded that these allegations lack merit. They are thus not sufficient to invoke an exception to the tender rule. Hernandez, however, challenges a pending foreclosure sale, not a completed one. For that reason, the court follows those cases that have held the tender rule does not apply to claims seeking to enjoin a pending sale. Lester, 926 F.Supp.2d at 1093 (collecting cases); see also Barrionuevo, 885 F.Supp.2d at 973-74 (N.D. Cal. 2012) (collecting cases); Chan Tang, 2012 WL 960373 at *4-7. The court therefore declines to dismiss Hernandez's quiet title claim for failure to allege tender.
The claim is nonetheless deficient and must be dismissed because it is based entirely on allegations of improper securitization of the loan. See Lomely v. JP Morgan Chase Bank, Nat. Ass'n, No. 5:12 CV 01194 EJD, 2012 WL 4123403, *4 (N.D. Cal. Sept. 17, 2012) ("Because Lomely's claims for wrongful foreclosure, quiet title, and his arguments in support of his request for declaratory and injunctive relief are based on the erroneous notion that Chase had no interest in the Loan or right to initiate foreclosure proceedings, each of these causes of action are dismissed"); Rosas v. Carnegie Mortgage, LLC, No. CV 11-7692 CAS (CWx), 2012 WL 1865480, *8 (C.D. Cal. May 21, 2012) (dismissing a quiet title claim, inter alia, because "plaintiffs' theory that lenders that received funds through loan securitizations or credit default swaps must waive their borrowers' obligations fails as a matter of law"); see also Mann v. Bank of America, N.A., No. 5:13-cv-02293-CAS (DTBx), 2014 WL 495617, *6 (C.D. Cal. Feb. 3, 2014) (dismissing quiet title and slander of title claims based on allegations of securitization and robo signing).
Hernandez's quiet title claim is therefore deficiently pled and must be dismissed.
Defendants next assert that Hernandez's declaratory relief claim must be dismissed. Federal courts sitting in diversity apply the substantive law of the forum state. See Clark v. Allstate Insurance Co., 106 F.Supp.2d 1016, 1018 (S.D. Cal. 2000) ("It is well-established that federal courts sitting in diversity must apply state substantive law and federal procedural rules," citing Computer Economics, Inc. v. Gartner Group, Inc., 50 F.Supp.2d 980, 986 (S.D. Cal. 1999), and Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938)). As a consequence, federal courts have consistently applied California Code of Civil Procedure § 1060 to assess the validity of a declaratory relief claim rather than the federal Declaratory Judgment Act when sitting in diversity. See, e.g., Acceptance Insurance Co. v. American Safety Risk Retention Group, Inc., No. 08cv1057-L(WMc), 2010 WL 744291, *4 (S.D. Cal. Mar. 3, 2010) (applying § 1060 to a declaratory relief claim); LeFebvre v. Syngenta Biotechnology, Inc., No. C 08-02732 JW, 2008 WL 5245056, *3 (N.D. Cal. Dec. 15, 2008) (same); Smith v. Bioworks, Inc., No. CIV. S-05-1650 FCD EFB, 2007 WL 273948, *4 n. 5 (E.D. Cal. Jan. 29, 2007) ("Plaintiff generally alleges a claim for declaratory relief in his Complaint. Because this is a diversity action, and because plaintiff alleges that California law applies in this action, the court applies California's declaratory relief statute to plaintiff's claims").
Section 1060 provides that:
See Javaheri v. JPMorgan Chase Bank, N.A., No. 2:10-cv-08185-ODW (FFMx), 2012 WL 6140962, *8 (C.D. Cal. Dec. 11, 2012) ("Declaratory and injunctive relief do not lie where all other claims have been dismissed. Javaheri is therefore not entitled to declaratory or injunctive relief without a viable underlying claim"); Shaterian v. Wells Fargo Bank, N.A., 829 F.Supp.2d 873, 888 (N.D. Cal. Nov. 7, 2011) ("Shaterian's tenth claim seeks a declaration concerning the rights and duties of the parties with respect to his first nine claims. This claim is ultimately a request for relief, and Shaterian is not entitled to such relief absent a viable underlying claim. Accordingly, the court DISMISSES Shaterian's claim for declaratory relief to the extent it seeks a declaration concerning Shaterian's dismissed claims, i.e., claims two, four, five, eight, and nine"); Ngoc Nguyen v. Wells Fargo Bank, N.A., 749 F.Supp.2d 1022, 1038 (N.D. Cal. 2010) ("Plaintiff has failed to state any claims, so there is no actual and present controversy"). Accordingly, the court dismisses the claim.
Civil Code § 2923.5(a) provides that "[a] mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent may not record a notice of default pursuant to Section 2924 until . . . [e]ither [1] 30 days after initial contact [with the borrower to assess the borrower's financial situation] is made . . . or [2] 30 days after satisfying the due diligence requirements [regarding contact with the borrower] as described in subdivision (e)." CAL. CIV. CODE § 2923.5(a).
"Section 2923.5 requires only contacts or attempted contacts to `assess the borrower's financial situation and explore options for the borrower to avoid foreclosure.'" Vega v. JPMorgan Chase Bank, N.A., 654 F.Supp.2d 1104, 1113 (E.D. Cal. 2009). Hernandez alleges that she was not contacted by defendants prior to the filing of the notice of default.
The first amended complaint "does not allege that defendants failed to make attempts to contact plaintiff[;] instead, it alleges only that defendants did not actually make contact with plaintiff. In order to state a claim . . . based on the failure to comply with section 2923.5, [Hernandez] must allege that defendants failed to comply with either prong of section 2923.5." See Miller, 2013 WL 663928 at *3; Ghuman, 989 F.Supp.2d at 1005 (dismissing § 2923.5 claim for failure to allege no attempt to contact, as opposed simply to alleging no contact was made). Furthermore, Hernandez's blanket allegation that she was never contacted is contradicted by other, non-conclusory allegations in the complaint. Specifically, she alleges that on August 23, 2014 "Michael Wickman with SPS called and said [she] did not qualify for an `in-house' modification program because she needed to have more income."
Finally, to the extent Hernandez seeks damages for violation of § 2923.5, the claim must be dismissed because "relief under § 2923.5 is limited to a postponement of foreclosure, as opposed to damages." Taguinod v. World Sav. Bank, FSB, 755 F.Supp.2d 1064, 1073 (C.D. Cal. 2010); see Quintero v. Wells Fargo Bank, N.A., No. CV 13-04937 JSC, 2014 WL 202755, *6 (N.D. Cal. Jan. 17, 2014) ("The Court notes, however, that the only relief under Section 2923.5 is a postponement of the foreclosure sale so that Wells Fargo may comply with the statute. Thus, Plaintiff's request for damages, which is made in addition to his request for a postponement of the foreclosure sale, is not available," citing Mabry v. Superior Court, 185 Cal.App.4th 208, 214 (2010)).
For all of these reasons, Fernandez's § 2923.5 claim is deficient and must be dismissed.
"The UCL prohibits `any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising.'" Stearns v. Select Comfort Retail Corp., No. 08-2746 JF (PVT), 2010 WL 2898284, *16 (N.D. Cal. July 21, 2010) (quoting CAL. BUS. & PROF. CODE § 17200). "`An act can be alleged to violate any or all of the three prongs of the UCL — unlawful, unfair, or fraudulent.'" Id. (quoting Berryman v. Merit Prop. Mgmt., Inc., 152 Cal.App.4th 1544, 1554 (2007)). The law is "sweeping, embracing anything that can properly be called a business practice and [that is] at the same time . . . forbidden by law." Cel-Tech Communications, Inc. v. L.A. Cellular Tel. Co., 20 Cal.4th 163, 180 (1999); see also Palestini v. Homecomings Fin., LLC, No. 10CV1049-MMA, 2010 WL 3339459, *9 (S.D. Cal. Aug. 23, 2010) (same). California courts have held that "an action under the UCL is not an all-purpose substitute for a tort or contract action." Korea Supply Co. v. Lockheed Martin Corp., 29 Cal.4th 1134, 1150 (2003) (citations and internal quotation marks omitted).
Hernandez alleges that defendants violated the unfair, unlawful, and fraudulent prongs of the statute, citing the other causes of action alleged in the first amended complaint. Defendants argue, and the court agrees, that Hernandez's UCL claim fails because she has not alleged that they engaged in unlawful, unfair, or fraudulent conduct. This is because all of her substantive claims fail. Where the predicate claims on which a plaintiff's UCL claim are based fail, the UCL claim fails as well. See Khan v. CitiMortgage, Inc., 975 F.Supp.2d 1127, 1146 (E.D. Cal. 2013) ("The FAC lacks facts of an unlawful, unfair or fraudulent business practices to support a UCL claim, despite Ms. Khan's unsubstantiated claims. . . . As demonstrated throughout this order, the complaint's claims fail and thus cannot serve as a predicate violation for a UCL claim"); Bejou v. Bank of Am., N.A., No. CV F 13-0125 LJO SMS, 2013 WL 1759126, *5 (E.D. Cal. Apr. 24, 2013) ("Reliance on other invalid claims fails to support a viable UCL claim"). For this reason, the court dismisses Hernandez's UCL claim.
Defendants also maintain that Hernandez's UCL claim must be dismissed for lack of standing. "A plaintiff suffers an injury in fact for purposes of standing under the UCL when he or she has: (1) expended money due to the defendant's acts of unfair competition; (2) lost money or property; or (3) been denied money to which he or she has a cognizable claim." Marilao v. McDonald's Corp., 632 F.Supp.2d 1008, 1012 (S.D. Cal. 2009) (citing Hall v. Time, Inc., 158 Cal.App.4th 847, 854-55 (2008)). "This statutory limitation requires that a plaintiff show he has suffered losses capable of restitution," as restitution and an injunction are the only remedies available for violation of the UCL. Small v. Mortgage Electronic Registration Systems, Inc., Nos. 09-cv-0458, 2:10-cv-0342, 2010 WL 3719314, *12 (E.D. Cal. Sept.16, 2010) (internal citations omitted). "Ordinarily when we say someone has `lost' money we mean that he has parted, deliberately or otherwise, with some identifiable sum formerly belonging to him or subject to his control; it has passed out of his hands by some means, such as being spent or mislaid." Silvaco Data Systems v. Intel Corp., 184 Cal.App.4th 210, 244 (2010).
Hernandez alleges that she "has lost money and title to the [p]roperty . . . [and] has lost or now owes money in order to avoid foreclosure."
For these reasons, the court dismisses Hernandez's UCL claim.
To state a negligence claim under California law, a plaintiff must plead: "(1) defendant's legal duty of care toward plaintiff, (2) defendant's breach of that duty, (3) damage or injury to plaintiff, and (4) a causal relationship between defendant's negligence and plaintiff's damages." Palm v. United States, 835 F.Supp. 512, 520 (N.D. Cal. 1993); see also Krawitz v. Rusch, 209 Cal.App.3d 957, 963 (1989) ("For a negligence cause of action, the plaintiff must allege a duty, a breach of that duty, and injury to the plaintiff as a proximate result of that breach"); Peter W. v. San Francisco Unified Sch. Dist., 60 Cal.App.3d 814, 820 (1976) ("According to the familiar California formula, the allegations requisite to a cause of action for negligence are (1) facts showing a duty of care in the defendant, (2) negligence constituting a breach of the duty, and (3) injury to the plaintiff as a proximate result").
Defendants maintain that they did not owe Hernandez a duty of care, and that her negligence claim fails as a matter of law. Hernandez counters that defendants owed her a duty to exercise reasonable care in processing her loan modification application because they agreed to consider her for a modification.
In Jolley v. Chase Home Finance, LLC, 213 Cal.App.4th 872, 898 (2013), the California Court of Appeal held that the lender on a construction loan that had made "specific representations" to the borrower concerning "the likelihood of a loan modification" owed the borrower a duty of care. The court reviewed the six factor test set forth in Biakanja v. Irving, 49 Cal.2d 647 (1958), which is often used in determining whether a duty of care exists. The test involves balancing various factors, including: "(1) the extent to which the transaction was intended to affect the plaintiff, (2) the foreseeability of harm to him, (3) the degree of certainty that the plaintiff suffered injury, (4) the closeness of the connection between the defendant's conduct and the injury suffered, (5) the moral blame attached to the defendant's conduct, and (6) the policy of preventing future harm." Jolley, 213 Cal.App.4th at 899 (citing Biakanja, 49 Cal.2d at 650).
The Jolley court concluded that "false assurances given by Chase personnel about the prospects for a loan modification" were sufficient to give rise to a duty of care under Biakanja. Id. at 900-01. It noted that the lender's assurances were indisputably intended to affect the plaintiff, and concluded it was "foreseeable that Jolley would sink more of his own money into the [property], thereby suffering further injury" once foreclosure occurred. Id. at 900. The court also found that actual injury was evident, and concluded that "the upbeat prediction of the availability of a loan modification and . . . rollover of the loan into a conventional mortgage was almost certainly a primary factor in causing this particular injury." Id. While the court could not determine "how blameworthy Chase's conduct [might] prove to be," it noted that the fact that "Chase benefitted from prolonging the loan renegotiation period and encouraging Jolley to complete construction [at the property] certainly len[t] itself to a blameworthy interpretation." Id. For these reasons, the court concluded that Jolley had sufficiently demonstrated that Chase's conduct went beyond that of a mere lender, and that it owed him a duty of care as a result of its representations. Id. at 906. See also Yau v. Deutsche Bank Nat. Trust Co. Americas, No. 11-57209, 2013 WL 2302438, *3 (9th Cir. May 24, 2013) (Unpub. Disp.) (observing that Jolley "applied the six-factor test outlined in [Biakanja and] determine[d] [that] a lender or loan servicer owe[d] a duty of care to a borrower").
Following Jolley, district courts in California split as to whether the reasoning of the decision applied to lenders in the residential home loan context. Several courts held that a lender that affirmatively promises a residential home loan modification to a borrower owes the borrower a duty of care, while others concluded that the holding was limited to the commercial loan context. Compare Ansanelli v. JP Morgan Chase Bank, N.A., No. C 10-03892 WHA, 2011 WL 1134451, *4-7 (N.D. Cal. Mar. 28, 2011) (holding that the defendant lender/servicer "went beyond its role as a silent lender and loan servicer" when it allegedly made an affirmative promise that it would modify plaintiffs' loan, and plaintiffs relied to their detriment on that promise, and stating that the bank "agreed to place plaintiffs on a trial modification plan, guaranteeing that if plaintiffs made payments on time in the modified amount for three months, Chase would provide a permanent modification of their loan"); Ottolini v. Bank of America, No. C-11-0477 EMC, 2011 WL 3652501, *7 (N.D. Cal. Aug. 19, 2011) (holding that a servicer did not owe a duty of care to a mortgagor because "the application for loan modification had not progressed to a concrete stage," and distinguishing Ansanelli because there "the lender agreed to place the borrower on a loan modification plan") with Diunugala v. JP Morgan Chase Bank, No. 12cv2106-WQH-NLS, 2013 WL 5568737, *4 (S.D. Cal. Oct. 3, 2013) ("The Court finds Jolley to be inapposite to this case, which involves a residential home loan and related loan servicing issues"); Ware v. Bayview Loan Servicing, LLC, No. 13-CV-1310 JLS (NLS), 2013 WL 4446804, *5 (S.D. Cal. Aug. 16, 2013) (finding that no duty of care was owed where a servicer told a mortgagor that approval of a loan modification was imminent).
Recently, the Fourth District Court of Appeal considered a case similar to this one and addressed whether Jolley's reasoning is applicable in the residential home loan context. See Lueras v. BAC Home Loans Servicing, LP, 221 Cal.App.4th 49 (2013). Richard Lueras sued Bank of America after it foreclosed on his home thirteen days after sending him a letter promising that no foreclosure sale would take place while Lueras was being considered for foreclosure avoidance programs. Id. at 55. Lueras had applied for a HAMP loan modification. In response, Bank of America offered to put him in a forebearance program that reduced his monthly payments; it also promised to consider whether "additional default resolution assistance" could be offered. Id. at 57. Lueras made monthly payments under the forebearance program for 10 months, during which time Bank of America did not work with him to implement a more permanent foreclosure alternative. Id. at 58. Lueras then submitted all information required to apply for a HAMP loan modification; while he was waiting for a response from Bank of America, the trustee, ReconTrust, served a notice of default and notice of trustee's sale. Id. Lueras alleged that at that point, Bank of America made an oral offer to modify his loan under HAMP, which he accepted. Id. at 58. He asserted that, subsequently, he received a letter stating that the bank had determined he was not eligible for a modification; when he called to inquire, the bank told him this was an error. Id. at 58-59. On May 6, 2011, he received another letter stating that Bank of America was reviewing his documents to determine whether he was eligible for a HAMP loan modification. Id. at 59. The letter stated that he would be notified whether the modification had been approved, whether he was not eligible for a loan modification, or whether the bank needed more information to make a decision. Id. When Lueras contacted the bank, he was told that the second letter had also been in error as his application had already been approved. Id. Nonetheless, on May 18, 2011, the bank conducted a foreclosure sale. Id.
The Lueras court first surveyed the law regarding a lender's duty of care to a borrower and then focused specifically on Jolley. It held:
Based on this analysis, the Lueras court concluded that Bank of America could not be held liable for negligence as a result of the loan modification discussions because "Lueras [had] not allege[d] [that] Bank of America . . . did anything wrongful that made him unable to make the original monthly loan payments. Lueras did not allege Bank of America and ReconTrust caused or exacerbated his initial default by negligently servicing the loan. To the contrary, he alleged his inability to make the payments was caused by financial hardship." Id. at 68. The court held that Bank of America was not liable for failing to "follow through" on the agreement it had made with Lueras to modify his loan because the remedy for that failure "lies in breach of contract, not negligence." Id.
Another recent California Court of Appeal decision, by contrast, imposed a duty of care on lenders that accept loan modification applications. In Alvarez v. BAC Home Loans Servicing, L.P., 228 Cal.App.4th 941, 948 (2014), the court held that a lender owed a duty to exercise reasonable care in processing and reviewing plaintiffs' applications for loan modification. The court noted the apparent conflict between Jolley and Lueras, but focused the majority of its discussion on Garcia v. Ocwen Loan Servicing, LLC, No. C 10-0290 PVT, 2010 WL 1881098, *3 (N.D. Cal. May 10, 2010), in which the court concluded that a lender "arguably owed [p]laintiff a duty of care in processing [p]laintiff's loan modification application, as at least five of the six [Biakanja] factors weigh[ed] in favor of finding a duty of care." The Alvarez court found Garcia's reasoning persuasive. It stated:
As respects the fifth Biakanja factor, the court found it "highly relevant that the borrower's `ability to protect his own interests in the loan modification process [is] practically nil' and the bank holds `all the cards.'" Id. at 949 (citing Jolley, 213 Cal.App.4th at 900). It held that a borrower's lack of bargaining power, "coupled with conflicts of interest that exist in the modern loan servicing industry provide a moral imperative that those with the controlling hand be required to exercise reasonable care in their dealings with borrowers seeking a loan modification." Id. Finally, citing Jolley, the court found the final Biakanja factor, the policy of preventing future harm, also "strongly favor[ed] imposing a duty of care on [lenders]." Id. at 950 (citing Jolley, 213 Cal.App.4th at 903).
Given the differing outcomes in Lueras and Alvarez, it is clear that whether a residential lender owes a duty of care to a borrower in connection with a residential loan modification application is a subject on which the California Courts of Appeal disagree.
In Benson v. Ocwen Loan Servicing, LLC, 562 Fed. Appx. 567, 569-70 (9th Cir. Mar. 13, 2014) (Unpub. Disp.), the Ninth Circuit expressly held that Jolley was confined to construction lenders, and cited Lueras with approval for the proposition that HSBC Bank did not owe a common law duty of care to the plaintiff-borrower. See id. ("The district court did not err in dismissing Benson's negligence claim against Ocwen and HSBC for failure to state a claim, because neither Ocwen nor HSBC owed Benson a common law duty of care. The duty of care imposed on construction lenders, does not apply in the residential loan context"). Another panel of the Ninth Circuit reached the opposite conclusion, however. See Yau v. Deutsche Bank Nat. Trust Co. Americas, 525 Fed. Appx. 606, 609 (9th Cir. May 24, 2013) (Unpub. Disp.) (reversing the district court's dismissal with prejudice of residential borrowers' negligence claim in light of Jolley).
California district courts too have reached differing conclusions. Compare, e.g., Johnson v. PNC Mortgage, ___ F.Supp.3d ___, 2015 WL 662261, *4 (N.D. Cal. Feb.12, 2015) ("Once PNC offered the Johnsons an opportunity to modify their loan, it owed them a duty to handle their application with ordinary care"); Banks v. JP Morgan Chase Bank, N.A., No. LA CV14-06429 JAK (FFMx), 2014 WL 6476139, *12 (C.D. Cal. Nov. 19, 2014) ("Taken together, [California] cases establish that traditional money-lending activity does not create a duty of care (Nymark), and that a loan modification is generally deemed a traditional money-lending activity (Lueras). They also support the conclusion that servicer conduct during the modification negotiation process may create a special relationship and a resulting duty of care (Alvarez)"); Segura v. Wells Bank, N.A., No. CV-14-04195-MWF (AJWx), 2014 WL 4798890, *12 (C.D. Cal. Sept. 26, 2014) (a duty of care can arise if a lender offers a borrower the opportunity to apply for a modification and engages with the borrower concerning that application) with Valencia v. Wells Home Mortgage Inc., No. C 14-3354 CW, 2014 WL 5812578, *7 (N.D. Cal. Nov.7, 2014) (holding that "[i]n the absence of any circumstances that would impose a duty of care on [d]efendant, [d]efendant had no duty of care to [p]laintiffs in reviewing their application for a HAMP modification"); Colom v. Wells Home Mortgage, Inc., No. C-14-2410 MMC, 2014 WL 5361421, *3 (N.D. Cal. Oct. 20, 2014) (dismissing plaintiff's negligence claim alleging that defendant failed to "offer[ ][p]laintiff a loan modification" because "[a] lender [does] not have a common law duty of care to offer, consider, or approve a loan modification" (citations omitted)); Williams v. Wells Fargo Bank, NA, No. EDCV 13-02075 JVS (DTBx), 2014 WL 1568857, *7 (C.D. Cal. Jan. 27, 2014) ("The Court concludes . . . that loan modification — a renegotiation of the loan's terms — is so related to `the key functions of a money lender' as to not give rise to an enforceable duty of care to the borrower").
The court finds those cases holding that Jolley is limited to construction lenders persuasive. Indeed, a second California appellate court adopted the Lueras court's view that Jolley is confined to the construction loan context. See Aspiras v. Wells Fargo Bank, N.A., 162 Cal.Rptr.3d 230, 242-43 (Cal. App. Aug. 21, 2013) (Unpub. Disp.) (holding, in a case involving the possible modification of a residential loan, that the reasoning in Jolley was dicta, that the circumstances underlying residential loans and construction loans are distinguishable, and that "the handling of loan modification negotiations or servicing is a typical lending activity that precludes imposition of a duty of due care").
To the extent Hernandez alleges, therefore, that defendants owed her a duty of care to process her loan modification application in a commercially reasonable manner, the court concludes that the claim fails, and must be dismissed.
In affirming dismissal of plaintiff's negligence claim, the Lueras court noted "that a lender. . . owe[s] a duty to a borrower to not make material misrepresentations about the status of an application for a loan modification or about the date, time, or status of a foreclosure sale. The law imposes a duty not to make negligent misrepresentations of fact." Id. at 68-69. On this basis, it granted leave to amend to allege a negligent misrepresentation claim because it found that Lueras could possibly allege that Bank of America negligently misrepresented the status of the application for the loan modification or the date, time, or status of the foreclosure sale. Id. Based on Lueras, the court will grant Hernandez leave to amend to plead a negligent misrepresentation claim, but dismisses her negligence claim with prejudice.
Defendants also assert that Hernandez has not adequately alleged that any breach of duty caused her damage. The court agrees. To allege damages sufficiently, plaintiffs must plead that "they would have obtained a loan modification absent [Wells Fargo's] negligence" and/or that they suffered "other damages." Alvarez, 228 Cal.App.4th at 949. Hernandez does not allege she would have obtained a loan modification; to the contrary, she concedes "there was no guarantee that a modification would have been granted had the loan modification applications been properly processed."
For the reasons stated, the court grants defendants' motion to dismiss with leave to amend. See In re Daou Sys., Inc., 411 F.3d 1006, 1013 (9th Cir. 2005) ("Dismissal without leave to amend is improper unless it is clear . . . that the complaint could not be saved by any amendment."); California ex rel. California Department of Toxic Substances Control v. Neville Chemical Co., 358 F.3d 661, 673 (9th Cir. 2004) ("[D]enial of leave to amend is appropriate if the amendment would be futile," citing Foman v. Davis, 371 U.S. 178, 182 (1962)). Hernandez may file an amended complaint within twenty (20) days of the date of this order if she is able to remedy the deficiencies the court has noted.
Hernandez may not plead new claims. Should the scope of any amendment exceed the scope of leave to amend granted by this order, the court will strike the offending portions of the pleading under Rule 12(f). See FED.R.CIV.PROC. 12(f) ("The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act: (1) on its own; or (2) on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading"); see also Barker v. Avila, No. 2:09-cv-0001-GEB-JFM, 2010 WL 31701067, *1-2 (E.D. Cal. Aug. 11, 2010) (striking an amendment to a federal law claim where the court had granted leave to amend only state law claims).
SPS cites Exhibit E to defendants' request for judicial notice, which is a page from the California Department of Business Oversight website listing mortgage services that effectuated more than 175 foreclosures in 2012. (See Motion at 16 (citing RJN, Exh. E).) The court earlier declined to take judicial notice of this webpage because SPS relied on it for the truth of the matters reflected there. The court therefore declines to dismiss Hernandez'd § 2923.5 claim on this basis.
