JOHN A. MENDEZ, District Judge.
Plaintiff Gordon McMahon ("McMahon") sued Defendants Select Portfolio Servicing ("SPS") and JPMorgan Chase Bank ("Chase") seeking to save his home from foreclosure. ECF No. 1. Chase moves to dismiss McMahon's First Amended Complaint ("FAC") with prejudice. ECF No. 43. McMahon opposes the motion. ECF No. 45.
The Court takes the facts alleged by McMahon as true for purposes of this motion.
McMahon obtained a mortgage loan in 2005. FAC ¶ 1. The interest rate and monthly payment increased about two years later.
Chase began servicing McMahon's loan in September 2011. FAC ¶ 38. Chase scheduled a foreclosure for April 2013. FAC ¶ 42. To explore options to avoid the foreclosure, McMahon called Karen Hyman—his "Customer Assistance Specialist" at Chase—several times in January 2013, but she never returned his calls. FAC ¶ 43. McMahon then sent Chase a Qualified Written Request ("QWR"). FAC ¶ 44. Chase "provided an incomplete response" to the QWR two months later. FAC ¶ 45. McMahon then filed a Request for Mortgage Assistance ("RMA") with Chase in March 2013. FAC ¶ 46. Chase did not respond to McMahon's application.
Two months later, Chase informed McMahon it would transfer servicing of the loan to SPS effective June 1, 2013. FAC ¶ 49. According to McMahon, SPS was Chase's "subservicer" on McMahon's account. FAC ¶ 88.
McMahon brings seven claims against Chase: (1) violation of the Homeowners Bill of Rights ("HBOR") at California Civil Code Section 2924.12, (2) violation of the Equal Credit Opportunity Act ("ECOA") at 15 U.S.C. § 1691(d)(1), (3) violation of the Real Estate Settlement Procedures Act ("RESPA") at 12 U.S.C. § 2605(e), (4) violation of Regulation X at 12 C.F.R. Section 1024.41, (5) violation of Regulation X at 12 C.F.R. Sections 1024.35, 1024.36, (6) negligence, and (7) violation of California Business and Professions Code Section 17200.
McMahon asks the Court to grant him "injunctive relief for material violations of California Civil Code sections 2923.55, 2923.6, and 2924.17." FAC ¶ 118.
California Civil Code Section 2924.12 permits a borrower to "bring an action for injunctive relief to enjoin a material violation of Section 2923.55, 2923.6, . . . or 2924.17" if "a trustee's deed of sale has not been recorded." Cal. Civ. 2924.12(a)(1).
Chase argues McMahon cannot seek injunctive relief against it because Chase no longer services McMahon's loan. Mot. at 3. McMahon counters that he can seek injunctive relief against Chase because "Chase remains directly involved as a master servicer." Opp'n at 6. McMahon contends Chase has "direct liability" or "secondary liability under . . . agency, joint venture, and/or aiding and abetting."
This same "master servicer" argument was at issue in
The
McMahon—citing paragraphs 11, 12, and 13 of his FAC—argues he pled agency, joint venture, and aiding and abetting. Opp'n at 6. But these paragraphs merely conclusively state the defendants had an agency or joint venture relationship and they "aided and abetted" each other.
McMahon brings his second claim under 15 U.S.C. § 1691(d)(1), which states "[w]ithin thirty days . . . after receipt of a completed application for credit, a creditor shall notify the applicant of its action on the application." 15 U.S.C. § 1691(d)(1). Section 1691(d)(6) states:
15 U.S.C. § 1691(d)(6) (emphasis added).
The Court stated in its previous order that SPS did not have to comply with the ECOA's thirty-day notice requirement under § 1691(d)(1) because McMahon had already defaulted on his mortgage when he applied to modify his loan. Order at 7, Apr. 26, 2017, ECF No. 44.
The Court, however, has reconsidered its position on that issue in light of
The Court therefore does not dismiss McMahon's ECOA claim solely because McMahon defaulted on his mortgage before applying to modify his loan and proceeds to Chase's arguments for dismissing McMahon's ECOA claim.
Chase first argues the "ECOA is an anti-discrimination statute, and Plaintiff has not alleged any manner of discrimination." Mot. at 4. But district courts in the Ninth Circuit have found "the [ECOA's] notice provisions to give rise to a cause of action even with no accompanying claims of discrimination."
Chase next argues McMahon has not actually alleged his ECOA claim against Chase, but only SPS. Mot. at 5. Chase is correct: McMahon alleges in his FAC under the second claim that he "provided SPS with a completed application for credit on March 21, 2014 and January 13, 2015." FAC ¶ 126. McMahon does not allege he ever submitted a completed application for credit to Chase. McMahon's allegations as to his second claim also occurred after Chase transferred the servicing of the loan to SPS. As discussed above, the Court cannot impute SPS's violations to Chase. Thus, the Court grants Chase's motion to dismiss McMahon's second claim with prejudice.
McMahon alleges Chase violated various subsections of § 2605 of the RESPA. FAC at 21-25. A RESPA claim based on § 2605 has a three year statute of limitations. 12 U.S.C. § 2614.
McMahon sued Chase on June 27, 2016, more than three years after Chase transferred the servicing of the loan to SPS.
McMahon concedes he sued Chase after the statute of limitations expired, but argues the Court should toll the statute of limitations because McMahon did not know Chase remained the master servicer on the loan until June 2015. Opp'n at 11.
To justify equitable tolling on a RESPA claim, a plaintiff must plead facts showing he "could not have discovered the alleged RESPA violations by exercising due diligence."
McMahon also argues he can hold Chase liable for SPS's RESPA violations (which the statute of limitations does not bar). Opp'n at 12-13. As discussed above, the court cannot hold a master servicer vicariously liable for the subservicer's violations of the law. Instead, a plaintiff must show the master servicer aided or abetted or was in joint venture with the subservicer.
The Court grants Chase's motion to dismiss McMahon's third, fourth, and fifth claims with prejudice. Chase raised the statute of limitations argument in the motion to dismiss it filed before McMahon filed his FAC, thus putting McMahon on notice he needed to plead facts to support equitable tolling when he filed his FAC.
McMahon alleges Chase negligently handled his loan modification applications. FAC at 26-27. Chase argues the statute of limitations for negligence claims bars McMahon's claim. Mot. at 6.
McMahon brings his negligence claim under California Civil Code section 1741, California's general negligence statute. FAC ¶ 158. Under California law, the statute of limitations for "[a]n action upon a liability created by statute, other than a penalty or forfeiture," is three years. Cal. Civ. P. Code § 338(a).
Chase stopped servicing McMahon's loan more than three years before McMahon sued Chase. The statute of limitations for negligence thus bars any claim against Chase for a violation that occurred during Chase's loan servicing period. McMahon has not pled facts to support tolling the statute of limitations or holding Chase liable for any of SPS's violations after Chase transferred servicing to SPS. The Court therefore dismisses McMahon's negligence claim against Chase with prejudice.
McMahon alleges Chase violated California Business and Professions Code Section 17200 ("the UCL"). FAC at 27-28. Under the UCL, unfair competition includes "any unlawful, unfair, or fraudulent business act or practice." Cal. Bus. & Prof. Code § 17200.
An "unlawful" practice includes all business practices "forbidden by law."
McMahon has not stated a claim against Chase for any underlying offense, so he cannot succeed on the UCL's unlawful prong. McMahon argues, however, that he can base his unlawful claim on Chase's alleged RESPA violation in January 2013 because the UCL has a four year statute of limitations. Opp'n at 15. But McMahon is wrong: the UCL's four year statute of limitations applies only where the underlying offense violates state law.
McMahon also argues he states an "unfair" claim against Chase "for its failures to respond to his applications for loan modification in 2013." Opp'n at 15.
A business practice is "unfair" under the UCL "if either (1) it is tethered to [a] specific constitutional, statutory, or regulatory provision, or (2) its harm to consumers outweighs its utility."
McMahon argues he states an "unfair" claim because his case resembles
For the above reasons, the Court GRANTS Chase's motion to dismiss McMahon's FAC WITH PREJUDICE.
Additionally, the Court's Order re Filing Requirements limits reply memoranda in motions to dismiss to five pages. Order re Filing Requirements at 1, Jun. 27, 2016, ECF No. 5-2. Violating the Order requires the offending counsel to pay $50.00 per page over the page limit to the Clerk of Court.
IT IS SO ORDERED.