KENDALL J. NEWMAN, Magistrate Judge.
Plaintiff Renee L. Martin, who proceeds without counsel,
The background facts are taken from plaintiff's first amended complaint, unless otherwise noted.
Plaintiff is alleged to be the owner of a property located at 931 Oakbrook Drive, Fairfield, California 94534 (hereinafter the "Property"), acquired by a grant deed in 1988. (
On October 19, 2012, a representative from SPS named Megan Koontz, who identified herself as plaintiff's account manager, contacted plaintiff to inform her that "a new (Department of Justice)" loan modification was available and recommended that plaintiff apply for that program. (FAC ¶ 22.) Plaintiff was also informed that three trial payments would be required, and that if she successfully made all three trial payments, the loan would be permanently modified. (
On January 8, 2013, plaintiff contacted SPS "to determine the exact amount of the remaining principal on the loan." (FAC ¶ 25.) Plaintiff was told to "contact BAC
On March 4, 2013, plaintiff again contacted SPS to inquire as to the status of her modification. (FAC ¶ 29.) Plaintiff spoke with SPS representative Jerison Sanchez, who, according to plaintiff, attempted to mislead her, stating "since all of your three payments have been made timely, don't do anything else, you don't have to make any more payments, because we SPS will adjust everything to permanent status any day now." (
Plaintiff contacted SPS on July 18, 2013, within the required 30 days to object to the decision, pointing out that plaintiff had never received a copy of any paperwork to sign. (FAC ¶¶ 32, 33.) The SPS representative stated that she would re-send the documents to plaintiff. (FAC ¶ 34.) At some point during this time, plaintiff requested SPS to provide her with a "Qualified Written Report [QWR]" because she was concerned about why her principal balance "kept increasing dramatically instead of decreasing[] when payments were made." (FAC ¶ 35.) When plaintiff later received a package of information regarding the QWR from SPS, plaintiff noticed among the papers a letter from SPS dated July 25, 2013. (FAC ¶ 36, Ex. 3.) The July 25, 2013 letter informed plaintiff that she was "approved for a principal reduction loan modification under the U.S. Department of Justice and State Attorneys General national mortgage settlement." (
(FAC ¶ 38.)
Plaintiff alleges that "SPS has been deceitful and moving forward to quickly foreclose because none of the defendants [] have any lawful rights to the property, there is no debt owing on the subject property, which has been paid off through credits from government programs and by Plaintiff." (FAC ¶ 39.) Plaintiff states that she continued to make her monthly payments in the amount of $1,093.56 from December 1, 2012 to the present, "even though SPS never fulfilled their agreement." (FAC ¶¶ 28, 29.) Plaintiff claims her monthly loan payments for the months of May through October 2015 have all been returned by SPS and that SPS has sent regular correspondence requesting higher mortgage payments. (FAC ¶¶ 44, 46.) According to plaintiff, SPS also continually called plaintiff, sometimes 3-4 times a day, demanding payment. (FAC ¶¶ 41, 43.) Plaintiff contends that neither SPS nor defendant Barrett Daffin Frappier Treder & Weiss, LLP
Based on the above, plaintiff's first amended complaint asserts nine claims: (1) violation of the Servicing of Mortgage Loans Procedures Act (12 U.S.C. § 2605); (2) violations of the U.S. Department of Justice and/or U.S. Department of Treasury (modifications); (3) wrongful foreclosure (commenced); (4) violations of the California Homeowners Bill of Rights; (5) quiet title to real property; (6) intentional infliction of emotional distress ("IIED"); (7) violation of the Fair Debt Collection Practices Act ("FDCPA"); (8) violations of a pooling service agreement; and (9) negligent misrepresentation. (
The instant motion to dismiss followed.
A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the sufficiency of the pleadings set forth in the complaint.
In considering a motion to dismiss for failure to state a claim, the court accepts all of the well-pled factual allegations in the complaint as true and construes them in the light most favorable to the plaintiff.
Even when liberally construed, plaintiff's first amended complaint fails to allege sufficient facts for the court to draw a reasonable inference that defendants are liable for the misconduct alleged.
Plaintiff's first claim alleges "violations of the Servicing of Mortgage Loans Procedures Act," but does not state a specific statutory violation. (FAC ¶ 49.) The first amended complaint's caption broadly references 12 U.S.C. § 2605. (FAC at 1.) That statute requires, in part, that "[e]ach person who makes a federally related mortgage loan shall disclose to each person who applies for the loan, at the time of application for the loan, whether the servicing of the loan may be assigned, sold, or transferred to any other person at any time while the loan is outstanding." 12 U.S.C. §2605(a). It furthers requires notice by the transferor and transferee at the time of transfer.
Plaintiff's second, fourth, and eighth claims allege non-specific violations of the "U.S. Department of Justice and/or U.S. Department of Treasury (Modifications)"; the California Homeowners Bill of Rights; and a pooling service agreement, respectively. Additionally, plaintiff's third claim of wrongful foreclosure and fifth claim of quiet title appear to be largely premised on such non-specific violations. The allegations pertaining to those claims are too vague for the court to assess. The court cannot guess what statutory provisions plaintiff alleges defendants have violated, and it is plaintiff's obligation to state with more specificity the grounds on which she seeks relief.
Plaintiff's main contention appears to be that SPS and Barrett do not have legal authority as a servicer, lender, or legal trustee to foreclose upon the Property. (FAC ¶ 5.) However, plaintiff provides no well-pled factual allegations or legal authority to support that contention. Although the first amended complaint's factual background section contains a detailed accounting of events leading up to plaintiff's eventual receipt of the July 25, 2013 letter approving plaintiff's principal reduction loan modification, the details thereafter are unclear. Plaintiff does not allege anywhere that she actually signed the loan modification paperwork, or any other facts showing that she is entitled to the reduced payment amount she is purportedly continuing to make. Plaintiff also provides no factual allegations plausibly demonstrating that SPS or Barrett have unlawfully become the lenders of her loan or are fraudulently misrepresenting their position to plaintiff. Instead, the first amended complaint contains numerous illusory references to the chain of title having been broken, there being no true lender, and plaintiff no longer owing any debt on the Property (despite admitting that she defaulted on her regular payments and supposedly continues to make reduced payments).
Therefore, the second, third, fourth, fifth, and eighth claims are dismissed.
Plaintiff's sixth claim for IIED also fails. "To sufficiently support a claim of intentional infliction of emotional distress a plaintiff must show the following elements: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct. Conduct is outrageous if it is so extreme as to exceed all bounds of that usually tolerated in a civilized community."
Here, in support of her IIED claim, plaintiff alleges that defendants caused plaintiff severe emotional distress by sending her correspondence threatening foreclosure and actually commencing foreclosure proceedings. Even though such correspondence and proceedings undoubtedly caused plaintiff some distress, those actions simply do not amount to extreme and outrageous conduct for purposes of an IIED claim.
Plaintiff's seventh claim for violation of the FDCPA likewise fails to state a claim. To adequately plead a claim under the FDCPA, a plaintiff must allege facts showing that the defendant is a debt collector for purposes of the statute.
As such, the FDCPA claim is subject to dismissal.
Finally, plaintiff's ninth claim for negligent misrepresentation is not viable under the facts alleged. "To allege a cause of action for negligent misrepresentation, [a] [p]laintiff must plead: (1) the misrepresentation of a past or existing material fact; (2) without reasonable ground for believing it to be true; (3) with intent to induce another's reliance on the fact misrepresented; (4) justifiable reliance on the misrepresentation; and (5) resulting damage."
Here, plaintiff alleges that defendants misrepresented their interests in the Property, because they have no lawful interest in the Property and there is no debt owing on the Property. Plaintiff's allegations in that regard are vague and conclusory, and insufficient to state a claim. As outlined above, in other portions of the complaint, plaintiff further alleges that SPS made misrepresentations by telling plaintiff not to make any further payments, but she also claims that she continued to make the payments anyway. As such, there does not appear to have been reliance on, and resulting damages from, any of those alleged misrepresentations. In any event, plaintiff fails to allege any facts suggesting that defendants owed plaintiff a duty of care.
Therefore, plaintiff's negligent misrepresentation claim must be dismissed.
In sum, the court concludes that all of plaintiff's claims in the first amended complaint are subject to dismissal. Nevertheless, in light of plaintiff's pro se status, the court, having now provided plaintiff with notice of the deficiencies of her claims, finds it appropriate to grant plaintiff an opportunity to amend. However, the court is cognizant of the fact that plaintiff has already been advised of the deficiencies of her claims on at least two prior occasions by the district judge and now by virtue of this order. As such, plaintiff is cautioned that the court is disinclined to permit further amendment.
If plaintiff elects to file an amended complaint, it shall be captioned "Second Amended Complaint"; shall cure the deficiencies outlined above; and shall comply with the Federal Rules of Civil Procedure, including Federal Rule of Civil Procedure 11.
Plaintiff is informed that the court cannot refer to a prior complaint or filing in order to make any second amended complaint complete. Local Rule 220 requires that an amended complaint be complete in itself without reference to any prior pleading or filing. As a general rule, an amended complaint supersedes prior versions of the complaint, and once the second amended complaint is filed, the original and first amended complaint no longer serve any function in the case.
Importantly, nothing in this order requires plaintiff to file a second amended complaint. If plaintiff concludes that she is unable to amend her complaint in compliance with the court's order or no longer wishes to pursue the action in federal court, plaintiff may alternatively file a notice of voluntary dismissal of her claims without prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i).
Accordingly, IT IS HEREBY ORDERED that: