LAWRENCE K. KARLTON, Judge.
This is a mortgage foreclosure case. Plaintiff, proceeding
On March 26, 2013, the Magistrate Judge filed extensive Findings and Recommendations herein which were served on all parties and which contained notice to all parties that any objections to the Findings and Recommendations were to be filed within fourteen days. Plaintiff timely has filed objections to the Findings and Recommendations, and defendants have timely filed a response to plaintiff's objections.
In accordance with the provisions of 28 U.S.C. 636(b)(1)(c) and Local Rule 304, this court has conducted a
Defendants Bank of American, NA ("BANA"), BAC Home Loans Servicing LP ("BAC Home Loans") and Balboa Insurance Co. ("Balboa"), assert that the 45-page complaint "should be dismissed in its entirety, with prejudice," because it is not a "short and plain" statement of the claims, and is confusing as to which claims are asserted against which defendants.
It is true that plaintiff's
Plaintiff alleges that defendants BANA and BAC Home Loans violated the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2605(e), and 24 C.F.R. § 3500.21, by failing to respond to his Qualified Written Requests ("QWR"), that is, letters he wrote to defendant loan servicers regarding the servicing of his loan.
Specifically,
The Complaint goes on to allege that defendants' conduct "caused plaintiff actual damages and injuries . . . including in part a detriment to plaintiff's ability to sell or refinance his home." Complaint ¶ 46 (emphasis in text).
Defendants BANA and BAC Home Loans move to dismiss.
First, defendant does not address even that "one letter" — the July 24, 2011 letter.
Second, plaintiff has specifically identified
Defendants also move to dismiss on the ground that plaintiff "has failed to plead facts that establish actual damages as required by the statute," citing 12 U.S.C. § 2605(f)(1)(A). Specifically, defendants argue for dismissal because plaintiff "fails to provide any detail as to how the alleged QWR violation has damaged him." BANA Motion at 17. Defendants assert that:
BANA Motion at 17 (citing Complaint ¶ 45).
This supposedly complete recitation of plaintiff's alleged damages ignores the very next paragraph of the complaint, which alleges that plaintiff's damages include "a detriment to plaintiff's ability to sell or refinance his home."
In addition, plaintiff has specifically alleged three clearly identified instances where he sent a QWR to the loan servicer, and got no timely response to any of them. Accordingly, the Complaint alleges a "pattern or practice of noncompliance" sufficient to state a claim for statutory damages under RESPA.
In short, plaintiff alleges a violation of the Real Estate Settlement Procedures Act ("RESPA"):
Defendant also asserts that the Complaint's allegation of damages resulting from stress and anxiety are "conclusory," and lacking in detail. The court does not find the allegations to be conclusory. To the contrary, plaintiff paints quite a clear picture. Plaintiff found himself in a dispute with the Bank of America, and BAC Home Loans, the originator and servicers of his home mortgage, a dispute which he must have known could lead to him losing his home. He wrote to the bank requesting information, and received no response, even though the bank was legally required to give him an acknowledgement and then a substantive response. This failure to respond caused him "extreme emotional and physical stress and anxiety." There is nothing "conclusory" about those allegations. They set forth an entirely plausible, factual sequence of events — with clear causality between the violation and the damages — to which defendant must now respond.
The court adopts the findings and recommendation of the Magistrate Judge that this portion of the first claim be dismissed as to BANA, BAC Home Loans and Balboa, for lack of a private right of action.
Plaintiff alleges that on November 9, 2011, he called BANA, BAC Home Loans and Quality Loan Service Corp. ("QLS"), requesting the exact amount his mortgage was in arrears, and the payoff balance. Complaint ¶ 60. Plaintiff alleges that these defendants never responded, in violation of banking regulations providing that "no servicer shall . . . [f]ail to provide, within a reasonable time after receiving a request from the consumer . . . an accurate statement of the total outstanding balance that would be required to satisfy the consumer's obligation in full as of a specified date."
Plaintiff also alleges that BAC Home Loans delayed posting plaintiff's December 13, 2010 mortgage payment for eight days. Complaint ¶ 61.
Defendants BANA and BAC Home Loans move to dismiss both parts of this claim because the allegations "are vague and incomplete," ECF No. 96 at 20, and because the Complaint contains only "generic allegations of a statutory violation, unsupported by facts," ECF No. 96 at 19. In fact, plaintiff's allegations of defendants' Regulation Z violations are clear and very specific.
Plaintiff alleges that on a specified date, November 9, 2011, he called specified defendants, "both QLS and [BANA]," and requested a specified piece of information, namely "the payoff amount necessary to redeem his home, i.e. `an accurate statement of the total outstanding balance.'" Complaint ¶ 60. This failure to respond is alleged to violate Regulation Z, which makes it unlawful for those defendants to fail to provide the above-specified information in a timely manner, once requested.
Plaintiff further alleges that on a specified date, December 13, 2010, "defendant [BAC Home Loans] received plaintiff's payment" of a specified amount, namely $968.57. Complaint ¶ 61. Plaintiff further alleges that the payment "was for the full monthly amount due on the loan."
Defendants do not explain what is "vague," "incomplete" or "generic" about these allegations, or what additional information they would need in order to understand and respond to the claim. This court finds that there is nothing vague, incomplete or generic about these allegations.
The court adopts the recommendation of the Magistrate Judge that the TILA/Regulation Z claim against QLS be dismissed, but will do so without leave to amend. This court writes separately to set out its reasoning.
Defendant QLS asserts that it cannot be liable for the failure to provide a payoff balance because it is not a "lender," citing
QLS does not
Nevertheless, as QLS does argue, the governing statute here, TILA, provides for civil liability only against the creditor and its assignee.
Accordingly, this claim will not lie against QLS, which is alleged to be a loan servicer, not a creditor or lender.
Defendants BANA and BAC Home Loans argues that the claim is vague, incomplete and generic.
Defendant BAC Home Loans asserts that it is not liable for the alleged failure to post plaintiff's December 13, 2010 mortgage payment in a timely manner, because the claim is "time barred after December 2011." Defendant makes two limitations arguments. First, it asserts that the TILA and Regulation Z claim is time-barred because the claim is based upon loan documents that were signed in 2001. The court adopts the Magistrate Judge's findings and recommendation that the Complaint not be dismissed on this basis.
Second, defendant asserts that the Second Amended Complaint, which first explicitly asserted a claim under TILA and Regulation Z, was filed in 2012, more than one year after the delayed posting.
Under these circumstances, the "relation back" doctrine applies. Fed. R. Civ. P. 15(c)(1)(B) ("An amendment to a pleading relates back to the date of the original pleading when ... the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out — or attempted to be set out — in the original pleading").
The claim is not time-barred.
Plaintiff alleges that BANA, BAC Home Loans and QLS violated the federal Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692e and 1692g.
Section 1692e prohibits "debt collectors" from using any "false, deceptive, or misleading representation or means in connection with the collection of any debt." 15 U.S.C. § 1692e(1). Among other things, debt collectors may not falsely represent or imply "that any individual is an attorney or that any communication is from an attorney." 15 U.S.C. § 1692e(3). They also may not falsely represent "the character, amount, or legal status of any debt."
Section 1692g requires a debt collector to provide, upon request, "the name and address of the original creditor, if different from the current creditor." 15 U.S.C. § 1692g.
Defendants BANA and BAC Home Loans assert that they are categorically exempt from the FDCPA because they are not "debt collectors." The FDCPA exempts from its provisions the "originator" of a debt the person is trying to collect. 15 U.S.C. § 1692a(6)(F)(ii);
The court adopts the Magistrate Judge's recommendation that BAC Home Loans also be dismissed from the FDCPA claim, but not because BAC Home Loans is
In fact, the FDCPA specifically exempts a person collecting a debt "which was not in default at the time it was obtained by such person." 15 U.S.C. § 1692a(6)(F)(iii);
QLS asserts that "Plaintiff fails to support his conclusory statement that Quality is a debt collector within the meaning of the FDCPA." QLS Motion at 13. The FDCPA defines a "debt collector to be:
15 U.S.C. § 1692a(6). The Complaint alleges that QLS "is in the business of acting as a debt collector." Complaint ¶ 10. The Complaint also alleges that QLS is a "`debt collector'" as defined by 15 U.S.C. § 1692A(6), and that it is "not exempt from the requirements of the FDCPA." Complaint ¶ 64. In addition, the Complaint alleges that QLS was "trying to collect a debt," namely, the mortgage at issue here, and that some of the communications with QLS took place over the telephone, an instrument of interstate commerce. Complaint ¶¶ 60 (phone call to QLS), 67 (QLS is trying to collect a debt).
These allegations, standing alone, are sufficient to allege that QLS is a debt collector within the meaning of the FDCPA, for purposes of this dismissal motion.
Exhibit P (ECF No. 91-1) at 66.
QLS goes on to argue that the Complaint fails to allege that it engaged in any "unfair practices." QLS Motion at 13. The Complaint, in fact, alleges that QLS made a false, deceptive, or misleading representation in connection with its efforts to collect a debt, in violation of 15 U.S.C. § 1692e. Specifically, the Complaint alleges that QLS falsely denied that it could give plaintiff information about the debt, and also, that "`only the
Accordingly, the claim alleging that QLS violated 15 U.S.C. § 1692e(2)(A) & (3) will not be dismissed.
Plaintiff alleges that BANA violated the Rosenthal Fair Debt Collection Practices Act ("Rosenthal Act"), Cal. Civ. Code §§ 1788,
BANA moves to dismiss solely on the grounds that it is exempt from the Rosenthal Act because it is a mortgage "lender[] and/or servicer[]." As the Magistrate Judge points out, BANA incorrectly relies on the federal statute to argue that it is exempt under the state law. BANA cites no provision of the Rosenthal Act where this asserted exemption can be found, and cites no cases decided under the Act that stand for this proposition.
Plaintiff alleges that BANA is a "debt collector" pursuant to Cal. Civ. Code 1788.2 of the Rosenthal Act. That provision defines "debt collector" broader than the FDCPA does, by including persons collecting their own debts, whereas such persons are expressly exempted under the FDCPA.
Accordingly, the court adopts the Magistrate Judge's finding that BANA is not exempt under the Rosenthal Act.
Plaintiff alleges that BAC Home set up an illegal escrow account against his mortgage.
Cal. Civ. Code § 2954(a)(1). It further provides that any such account "established in violation" of Section 2954(a)(1) "is voidable, at the option of the purchaser or borrower."
The court adopts the Magistrate Judge's findings and recommendation that Claim 4 not be dismissed, and it will proceed against BAC Home only.
Plaintiff alleges that BANA and BAC Mortgage committed fraud in connection with the creation of his mortgage, at the end of January 2001.
The Complaint further alleges that BANA (through its agent, Susan Birge), had plaintiff make changes to the "closing paperwork" before signing, specifically, "forms BA 174 and BA084," assuring him that the changes to those documents would have the effect that he wanted, namely, it would prevent any future escrow account from being placed against the mortgage. Complaint ¶¶ 82-83. Plaintiff alleges that in reliance upon BANA's representations, he went forward with the closing, even though he "could easily have gone to another lender" if BANA had not agreed to the modifications prohibiting future escrow accounts. Complaint ¶ 83.
The Complaint further alleges that BANA's statements were misrepresentations, because it "had no intention" of abiding by the representations it had made regarding the promise of "no escrow account ever for the remainder of the loan." Complaint ¶ 82. Plaintiff alleges that he did not discover the misrepresentation until July 2010, when he discovered that BANA and others had "created an escrow account on Plaintiff's loan" the month before. Complaint ¶¶ 84 & 86. Finally, plaintiff alleges that the creation of this escrow account was the start of all the harm that he complains of now.
BANA moves to dismiss this claim because (1) it is barred by the three-year statute of limitations, and (2) it is not specific enough.
Fraud claims under California law are subject to a three-year statute of limitations. Cal. Code Civ. P. § 338(d). However, the fraud claim "is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake."
As recounted above, the complaint sets forth with particularity exactly what misrepresentations plaintiff is challenging, namely, that no escrow account (other than the initial PMI escrow account) would ever be placed against plaintiff's mortgage account. Moreover, those allegations set forth all of the elements of a fraud claim.
The fraud claim is not subject to dismissal, and will proceed against BANA and BANA Mortgage.
Plaintiff alleges that in 2010 and 2011, defendant BANA and BAC Home Loans, and others, acting through their agent, defendant Home Retention Group ("HRG"), created a false paper trail relating to his supposed request for a loan modification through the federal Home Affordable Mortgage Program ("HAMP") program. Plaintiff denies that he ever applied for loan modification.
Specifically, in April or May 2011, HRG sent plaintiff a letter falsely stating that plaintiff "had sent in their loan modification package for the `HAMP,' that he was seeking a home loan modification and was asking for assistance." Complaint ¶ 91. On June 28, 2011, BAC Home Loans sent plaintiff a letter falsely stating that it had reviewed plaintiff's "request for a loan modification" under HAMP, even though plaintiff had never sent in such a request. Complaint ¶ 94. That letter also stated that plaintiff's supposed request "was denied because he had not sent in the requested documents."
According to plaintiff, defendants did all this to collect money from plaintiff that he did not owe, and to create a false impression that they had complied with all guidelines permitting them to foreclose. Complaint ¶ 89-97. As a result, plaintiff alleges, plaintiff is now disqualified from applying for a loan modification through HAMP. Complaint ¶ 96.
Defendants move to dismiss based on the statute of limitations, since the loan was issued in 2001. This is no basis for dismissal, as the basis of the alleged fraud claim is conduct that took place in 2010 and 2011.
Defendants also move to dismiss asserting that the Complaint is not "specific enough" under Fed. R. Civ. P. 9(b), governing fraud allegations. This court finds that the allegations are sufficiently specific to allow defendants to defend themselves.
However, the Complaint on its fact does not state a claim for fraud or misrepresentation. An essential element of this claim is "deceit," that is, the victim of the fraud must be deceived, and take action (justifiable reliance) based upon that deceit. Here, plaintiff alleges that he knew that these letters were false, thus he was never deceived. Moreover, he does not allege that he justifiably relied upon the supposed truth of the communications. The claim for negligent misrepresentation also requires allegations that the victim was deceived and justifiably relied on the deception.
This portion of the fraud claim will be dismissed for failure to state a claim.
Plaintiff alleges that BANA, BAC Home Loans and FHLMC conspired in the creation of the false paper trail relating to the HAMP program, discussed above. This court has already found that there was no viable claim for fraud or misrepresentation against BANA, the only defendant charged with fraud. Therefore, there can be no claim for
The claim for conspiracy will therefore be dismissed in its entirety, for failure to state a claim.
Defendants seek dismissal, asserting that plaintiff failed to allege his own performance (and indeed, that he alleged his own non-performance), and failed to allege defendant's breach.
As for plaintiff's own performance, it appears that plaintiff's obligation to have a homeowner's insurance policy arose in May 2001, when plaintiff took out a second mortgage on his home.
Defendants assert that plaintiff failed to allege breach. That is not so. Plaintiff alleges that a written modification to the Deed of Trust — which he has not attached to the complaint — contains an agreement that BANA would never create an escrow account against his mortgage, other than the initial PMI escrow account. He further alleges that in breach of that written agreement, defendant created an escrow account against his mortgage.
It does seem that plaintiff's allegation brushes right up against the "plausibility" standard of
QLS and Balboa move to dismiss because plaintiff has not alleged that they were party to any contract with plaintiff. That is correct, and the court accordingly adopts the Magistrate Judge's findings and recommendations that the claim be dismissed against QLS and Balboa.
Plaintiff seeks a declaration determining the respective rights of the parties. Defendant seeks to dismiss solely on the grounds that it is duplicative of the relief he seeks from the lawsuit as a whole. It does appear that "this cause of action is redundant of [plaintiff's] other claims," and will be dismissed for that reason.
Plaintiff seeks an accounting of moneys paid and due on the mortgage transaction.
Defendants seek dismissal solely on the grounds that plaintiff has not alleged that any sums are due to him that would be the subject of an accounting. ECF No. 69 at 28-29. That is not so. Plaintiff alleges that "he has actually
Plaintiff alleges that defendants collected from him "escrow funds" which were to be credited to his mortgage payments (interest and principal) and, to the degree they were surplus, were to be returned to plaintiff. Complaint ¶¶ 136-37. Instead of doing either, plaintiff alleges, defendants wrongfully kept the funds.
Defendant moves to dismiss on the grounds that plaintiff's right to payment is a "mere contractual one." ECF No. 96 at 29. This misconceives the claim plaintiff is making. Plaintiff does not simply assert that defendants owe him money under the contract. Rather, he asserts that pursuant to the contract, he entrusted specific sums of money to defendants, which defendants were to use for a specific purpose — to credit plaintiff's mortgage account, and return the surplus. Plaintiff further asserts that defendants instead took the money entrusted to them, used it to pay fees plaintiff did not owe, and are refusing to return it, or even any surplus after the fees are paid. This states a claim for conversion.
Plaintiff asserts a claim for wrongful foreclosure, alleging numerous errors and points of unfairness, and also alleging that he has made "full and timely tender of all amounts owed to defendants."
Defendant BANA moves to dismiss on the ground that plaintiff has not alleged "tender." This has two problems. First, plaintiff has alleged "tender."
Defendant QLS moves to dismiss because plaintiff has not alleged it did anything unlawful, and because it acted in good faith. However, plaintiff has set out in excruciating detail all the things he says went wrong with the Notice of Trustee's Sale, and why he thinks they violate specified sections of California law. If QLS wishes to get this claim dismissed, it must set forth which allegations are not legally sufficient, and why. This court will not, on its own initiative, try to identify the allegations QLS thinks are insufficient and why.
Plaintiff asserts that all defendants breached the covenant of good faith and fair dealing in relation to the Deed of Trust. Broadly stated, that covenant requires that neither party do anything that will deprive the other of the benefits of the agreement.
The court adopts the Magistrate's findings and recommendation that QLS and Balboa be dismissed from this claim because they are not alleged to be parties to the mortgage agreement.
Defendants BANA and BAC Home Loans move to dismiss this claim because this claim "is limited to situations in which a fiduciary relationship exists." ECF No. 96 at 30. However, as the Magistrate Judge found, in California,
BANA also asserts that the Complaint does not allege that defendants have frustrated plaintiff's ability to obtain the benefits of the original loan. This is also not so. Plaintiff alleges that by placing the escrow account against his mortgage, BANA has prevented plaintiff from paying off his mortgage in the manner he anticipated and agreed to, at the time he signed the modified mortgage agreement.
This claim will not be dismissed against BANA.
The court adopts the Magistrate Judge's findings and recommendation that the negligence claim be dismissed as to BANA, BAC Home Loans and Balboa, except that the claim will be dismissed with prejudice.
The court adopts the Magistrate Judge's findings and recommendation that the claim for intentional infliction of emotional distress be dismissed as to BANA, BAC Home Loans, Balboa and QLS, except that the claim will be dismissed with prejudice.
Defendants move to dismiss the claim under Cal. Bus. & Prof. Code § 17200 on the ground that the court should dismiss all the underlying claims of unfair or unlawful practices. Since some of those claims have survived dismissal, this claim will not be dismissed, to the degree it is predicated on a surviving claim.
The court adopts the Magistrate Judge's findings and recommendation that the civil claim under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), be dismissed as to BANA, BAC Home Loans, Balboa and QLS, except that the claim will be dismissed with prejudice.
For the reasons set forth above:
1. The motion of BANA, BAC Home Loans, Balboa and QLS to dismiss the complaint in its entirety for failure to comply with Rule 8 is
2. The motion of BANA and BAC Home Loans, to dismiss the RESPA claim (Claim One), under 12 U.S.C. § 2605(e) and 24 C.F.R. § 3500.21, is
3. The motion of BANA and BAC Home Loans, to dismiss the RESPA claim (also Claim One), under 12 U.S.C. § 2609 AND 24 C.F.R. § 3500.17, is
Accordingly, this portion of Claim One is
4. The motion of QLS, to dismiss the TILA and Regulation Z claim (Claim Two), is
Accordingly, this portion of Claim Two (against QLS) is
5. The motion of BANA and BAC Home Loans to dismiss the TILA and Regulation Z claim (also Claim Two), is
7. The motion of BANA and BAC Home Loans to dismiss the FDCPA claim (Claim Three), is
Accordingly, this portion of Claim Three (against BANA and BAC Home Loans) is
8. The motion of QLS to dismiss the FDCPA claim (also Claim Three), is
9. The motion of BANA to dismiss the Rosenthal Act claim (also Claim Three) is
10. The motion of BANA to dismiss the claim under Cal. Civ. Code § 2954(a)(1) (Claim Four), is
11. The motion of BANA to dismiss the fraud claim (Claim Five), is
12. The motion of BANA, BAC Home Loans and QLS to dismiss the Negligent Misrepresentation claim regarding loan modification activities (also Claim Five) is
Accordingly, this portion of Claim Five is
13. The motion of BANA and BAC Home Loans to dismiss the conspiracy claim (also Claim Five), is
Accordingly, the conspiracy portion of Claim Five is
14. The motion of BANA to dismiss the breach of contract claim (Claim Six), is
15. The motions of and BAC Home Loans, Balboa and QLS to dismiss the breach of contract claim (also Claim Six), are
Accordingly, this portion of Claim Six (against BAC Home Loans, Balboa and QLS) is
16. The motions of BANA, BAC Home Loans, Balboa and QLS to dismiss the claim for declaratory relief (Claim Seven), are
Accordingly, Claim Seven is
17. The motion of BANA and BAC Home Loans to dismiss the claim for an accounting (Claim Eight), is
18. The motion of BANA and BAC Home Loans to dismiss the conversion claim (Claim Nine), is
19. The motions of BANA, BAC Home Loans, Balboa and QLS to dismiss the claim for wrongful foreclosure (Claim Ten), is
20. The motion of BANA and BAC Home Loans to dismiss the claim for breach of the covenant of good faith and fair dealing (Claim Eleven), is
21. The motions of Balboa and QLS to dismiss the claim for breach of the covenant of good faith and fair dealing (also Claim Eleven), is
Accordingly, this portion of Claim Eleven (against Balboa and QLS) is
22. The motion of BANA and BAC Home Loans to dismiss the claim for negligence (Claim Twelve), is
Accordingly, Claim Twelve is
23. The motions of BANA, BAC Home Loans, Balboa and QLS to dismiss the claim for intentional infliction of emotional distress (Claim Thirteen), is
Accordingly, Claim Thirteen is
24. The motions of BANA, BAC Home Loans, Balboa and QLS to dismiss the claim for violation of Cal. Bus. & Prof. Code § 17200 (Claim Fourteen), is
25. The motions of BANA, BAC Home Loans, Balboa and QLS to dismiss the claim for civil RICO (Claim Fourteen), is
Accordingly, Claim Fifteen is
This matter is remanded to the Magistrate Judge for further proceedings.