Coburn v. The Bank of New York Mellon, N.A. et al
Filing
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ORDER signed by Judge John A. Mendez on 03/21/11 GRANTING 7 Motion to Dismiss. Claim 1 is GRANTED with leave to amend; Claim 2 is GRANTED with leave to amend; Claim 3 is GRANTED with leave to amend; Claim 4 is GRANTED with leave to amend; Claim 6 is GRANTED WITH PREJUDICE. Defendants motion to strike is DENIED WITHOUT PREJUDICE. Plaintiff shall file and serve her Amended Complaint no later than twenty (20) days from the date of this Order. (Williams, D)
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Coburn v. The Bank of New York Mellon, N.A. et al
Doc. 14
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. THE BANK OF NEW YORK MELLON, N.A.; FIRST HORIZON HOME LOAN CORPORATION; QUALITY LOAN SERVICE CORPORATION; MORTGAGE ELECTRIC REGISTRATION SYSTEMS, INC.; and DOES through 50, inclusive, Defendants. NANCY COBURN, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 2:10-CV-03080 JAM-KJN ORDER GRANTING DEFENDANTS MOTION TO DISMISS UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
This matter comes before the Court on Defendants Bank of New York Mellon ("BONY"), First Tennessee National Bank, N.A., successor in interest to First Horizon Home Loan Corporation ("First Horizon"), and Mortgage Electric Registration Systems, Inc.s ("MERS"), (collectively "Defendants"), Motion to Dismiss and Motion to Strike Portions of Plaintiff Nancy Coburns ("Plaintiff") Complaint (Doc. #7). motions (Doc. #10).1
1
Plaintiff opposes the
This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). 1
Dockets.Justia.com
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I.
FACTUAL AND PROCEDURAL BACKGROUND
On June 23, 2005, Plaintiff and First Horizon entered into a home loan transaction for $904,000. The loan was memorialized The Deed of The
in a Promissory Note secured by a Deed of Trust.
Trust listed MERS as the designated nominee beneficiary.
loan was modified in October 2006 to include an additional tract of land within the boundaries of the property. In November 2008, Plaintiff told First Horizon that due to a reduction in income, she would be unable to meet the terms of her loan repayment schedule. Plaintiff claims that First
Horizon told Plaintiff that they could not help her modify the loan until she became delinquent on the loan. Plaintiff hired a
private company to help her modify the loan but was unable to do so. Quality Loan Service Corporation ("Quality Loan") recorded
a notice of Plaintiffs default under the Deed of Trust in the public records of Placer County on September 16, 2009. Plaintiff claims she never received a copy of the Notice of Default. On October 19, 2009, MERS assigned the Deed of Trust to On May 25, 2010 BONY substituted Quality Loan as trustee.
Plaintiff claims that the Notice of Default filed by Quality Loan is void because Quality Loan was not the trustee at the time the Notice of Default was filed. The property was sold on
August 3, 2010, but the sale was later rescinded. Plaintiff filed her Complaint in the Superior Court of Placer Country on October 15, 2010. In the Complaint, Plaintiff
alleged six state causes of action: (1) Deceit; (2) Civil Conspiracy; (3) Negligence; (4) Unlawful/Unfair Business 2
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Practices, Violations of California Business & Professions Code ("UCL") § 17200, et seq.; (5) Failure to Explore Foreclosure Avoidance, Violation of California Civil Code § 2923.5; and (6) Declaratory and Injunctive Relief. Plaintiff obtained a The Complaint
temporary restraining order against foreclosure.
was removed to this Court on November 15, 2010 based on diversity jurisdiction.
II. A. Legal Standard 1.
OPINION
Motion to Dismiss
A party may move to dismiss an action for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure section 12(b)(6). In considering a
motion to dismiss, the court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1975),
overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322 (1972). Assertions that
are mere "legal conclusions," however, are not entitled to the assumption of truth. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950
(2009), citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). To survive a motion to dismiss, a plaintiff needs to
plead "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. Dismissal is
appropriate where the plaintiff fails to state a claim supportable by a cognizable legal theory. Balistreri v.
Pacifica Police Department, 901 F.2d 696, 699 (9th Cir. 1990). 3
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Upon granting a motion to dismiss for failure to state a claim, the court has discretion to allow leave to amend the complaint pursuant to Federal Rule of Civil Procedure § 15(a). "Dismissal with prejudice and without leave to amend is not appropriate unless it is clear . . . that the complaint could not be saved by amendment." Eminence Capital, L.L.C. v. Aspeon,
Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). 2. Motion to Strike
Rule 12(f) provides in pertinent part that the Court ,,may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. Motions to strike are disfavored and infrequently granted. A motion to strike should not be granted unless it is clear that the matter to be stricken could have no possible bearing on the subject matter of the litigation. Bassett v. Ruggles, et al., No. CV-F-09-528, 2009 WL 2982895, at *24 (E.D. Cal. Sept. 14, 2009) (internal citations omitted). B. Judicial Notice
Defendants request judicial notice of the Deed of Trust, Loan Modification Agreement, Assignment of the Deed of Trust, Assignment of Substitution of Trustee, Notice of Trustees Sale, Notice of Default, and Election to sell under deed of trust. (Defs. Req. for Judicial Notice, Exhs. 1, 2, 3, 4, 5, & 6) (Doc. #7-1). Plaintiff does not object to Defendants request.
Courts may consider extrinsic evidence when "plaintiff's claim depends on the contents of a document, the defendant attaches the document to its motion to dismiss, and the parties do not dispute the authenticity of the document. . . ." v. ESPN, 393 F.3d 1069, 1076 (9th Cir. 2005). Knievel
Accordingly, the
Court GRANTS Defendants request for judicial notice pursuant to 4
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Federal Rule of Evidence 201. C. Claims for Relief 1. Claim 1: Deceit
Defendants argue that Claim 1, alleging deceit, is not a claim supportable by a cognizable legal theory. Plaintiff
responds that she pleads sufficient facts to constitute an action for deceit and asks for leave to amend if the Court finds the pleading insufficient. Deceit is defined as the "suppression of a fact, by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact." Cal. Civ. Code § 1710. In essence, deceit is a fraud claim. See
e.g. Diaz v. Federal Express Corp., 373 F.Supp.2d 1034, 1066-1067 (C.D. 2005) (treating a claim under Section 1709 as a fraud claim). A claim of fraud must contain the following elements: (a) a misrepresentation; (b) knowledge of falsity; (c) intent to defraud; (d) justifiable reliance; and (e) resulting damage. In re Estate
of Young, 160 Cal.App.4th 62, 79 (Cal. Ct. App. 4d 2008). "Averments of fraud must be accompanied by the who, what, when, where, and how of the misconduct charged." Vess v. Ciba-Geigy
Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003) (internal citations omitted). See also Fed. R. Civ. P. 9(b). The allegations must be
"specific enough to give defendants notice of the particular misconduct which is alleged to constitute the fraud charged so that they can defend against the charge and not just deny that they have done anything wrong." Cir. 1985). The Complaint does not allege deceit with the requisite 5 Semegen v. Weidner, 780 F.2d 727, 731 (9th
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particularity.
Plaintiff alleges that MERS lacked the power to
assign the Deed of Trust to BONY because MERS was not the owner of the mortgage or holder of the Note. Plaintiff also alleges that
BONY knew that it did not have the right to pursue any foreclosure related activity but purported to be the beneficiary under the Deed of Trust in an attempt to deceive the Plaintiff. However, MERS had
authority to assign its beneficial interest to another party. See Pok v. American Home Mortgage Servicing Inc., No. CIV 09-2385, 2010 WL 476674, at *4 (E.D. Feb. 3, 2010)(holding that as the listed nominee and beneficiary MERS had authority to assign its interest to another party). Plaintiff also claims that the Defendants
committed deceit because BONY had not been assigned the Deed of Trust at the time the Notice of Default was recorded. However, the Instead,
Notice of Default does not list BONY as the beneficiary.
Quality Loan recorded the Notice of Default in its capacity as an agent. See Cal. Civ. Code § 2924(a)(1). These allegations do not
state how the Defendants knowingly misrepresented themselves, what is false or misleading about their statements, where and when these statements occurred, and why they are false. Plaintiff includes an allegation in her Opposition that MERS violated California Civil Code § 1095 when assigning the Deed of Trust to BONY. Section 1095 requires that "[w] hen an attorney in
fact executes an instrument transferring an estate in real property, he must subscribe the name of his principal to it, and his own name as attorney in fact." Cal. Civ. Code § 1095.
Defendants argue that Section 1095 does not apply because the assignment of the Deed of Trust was not accomplished by way of a power of an attorney and the beneficial interest is a security 6
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interest and not an estate in the property itself.
The Court finds
that section 1095 does not apply because the assignment of the Deed of Trust was signed by Wanda Collier, an assistant secretary at MERS, and not by an attorney. Finally, Plaintiff fails to plead reliance. She claims that
"as a proximate result of the Defendants fraudulent conduct . . . Plaintiff is now subject to onerous foreclosure proceedings." Compl. ¶ 81. However, the Complaint does not include allegations
which explain how Plaintiff relied to her detriment on any of defendants misrepresentations and Plaintiff does not state the amount of damages purportedly suffered by this reliance. Accordingly, Defendants motion to dismiss Claim 1 is GRANTED WITH LEAVE TO AMEND. 2. Claim 2: Civil Conspiracy
Defendants argue that Plaintiff does not plead Claim 2, alleging civil conspiracy, with particularity. In this second
cause of action, Plaintiff incorporates by reference all prior causes of actions and alleges in a conclusory fashion that Defendants agreed to take actions that violated federal law and various common law duties in order to maximize their financial benefit. A conspiracy is not an independent cause of action, but is instead "a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration." Applied Equipment Corp. v. Litton Saudi Arabia Ltd., 7 Cal. 4th 503, 510-11 (Cal. 1994). To plead civil conspiracy, Plaintiff must
plead an independent tort upon which to base the claim. 7
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Entertainment Research Group, Inc. v. Genesis Creative Group, Inc., 122 F.3d 1211, 1228 (9th Cir. 1997). Liability for civil
conspiracy generally requires three elements: (1) the formation and operation of the conspiracy, (2) wrongful conduct in furtherance of the conspiracy, and (3) damages arising from the wrongful conduct. Kidron v. Movie Acquisition Corp., 40 Cal.App.4th 1571, 1581 (Cal. Ct. App. 2d 1995). Plaintiff argues that Defendants actions violated federal law and various common law duties, but she does not properly plead the existence of an independent tort upon which to base the conspiracy claim. Plaintiff also does not provide sufficient facts to satisfy Plaintiff alleges that
the elements of civil conspiracy.
Defendants "intentional misrepresentations, deceit, and/or concealment of material facts known to them . . . depriv[ed] Plaintiff of her property or legal rights." Compl. ¶ 90. Plaintiff
does not allege, among other things, how the conspiracy was formed, what unlawful actions were performed pursuant to the conspiracy, and how these actions were coordinated. Plaintiff also does not
state what damages she suffered as a result of the alleged wrongful conduct. Accordingly, Defendants motion to dismiss Claim 2
alleging civil conspiracy is GRANTED WITH LEAVE TO AMEND. 3. Claim 3: Negligence
Plaintiff alleges both statutory and common law negligence. Defendants argue that Claim 3 fails to identify the subsection of California Civil Code § 2924 that was violated and that there was no duty owed to the Plaintiff. Plaintiff fails to address
Defendants arguments and simply argues that she pleads sufficient facts to constitute an action for negligence and asks for leave to 8
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amend if the Court finds insufficient pleading. To plead a cause of action for negligence, a plaintiff must show "(1) a legal duty to use reasonable care; (2) breach of that duty, and (3) proximate cause between the breach and (4) the plaintiff's injury." Mendoza v. City of Los Angeles, 66 "[F]inancial
Cal.App.4th 1333, 1339 (Cal. Ct. App. 2d 1998).
institutions owe no duty of care to a borrower when the institutions involvement in the loan transaction does not exceed the scope of its conventional role as a mere lender of money." Nymark v. Heart Federal Savings & Loan Assn, 231 Cal.App.3d 1089, 1096 (Cal. Ct. App. 3d 1991). Therefore, "[l]iability to a
borrower for negligence arises only when the lender actively participates in the financed enterprise beyond the domain of the usual money lender." Wagner v. Benson, 101 Cal.App.3d 27, 35 (Cal.
Ct. App. 4d 1980) (internal citations omitted). Plaintiff bases her statutory negligence claim on the contention that the assignment of the Note and Deed of Trust violated California Civil Code §§ 2923.5 and 2924.2 The Complaint
does not explain how the foreclosure process violated any specific provision of Civil Code § 2924. See, e.g., Nansyvong Somsanith v.
Bank of America, No. S-09-1791, 2009 WL 3756693, at *6 (E.D. Cal. Nov. 6, 2009) (dismissing section 2924 claim because Plaintiff did not identify the specific subsection that defendants allegedly violated). Plaintiff also fails to sufficiently plead the formation of a legal duty in her common law negligence claim.
2
Plaintiff cites no
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The California Civil Code § 2923.5 violation was pled as Plaintiffs fifth cause of action. It is discussed and dismissed with prejudice infra. 9
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authority for the proposition that Defendants owed a duty not to cause Plaintiff harm in their capacity as lender, trustee, and nominee beneficiary of the Deed of Trust. Plaintiff does not
explain how Defendants exceeded their conventional roles as lender, trustee, and nominee beneficiary of the Deed of Trust. Plaintiff
also fails to allege how the Defendants breached their duty to the Plaintiff and what actual damages she suffered as a result of the Defendants negligence. Accordingly, Defendants motion to dismiss
Claim 3 alleging negligence is GRANTED WITH LEAVE TO AMEND. 4. Claim 4: Violation of the Unfair Competition Law § 17200
Defendants argue that Plaintiff does not plead Claim 4, alleging violations of California Business and Professions Code ("UCL") § 17200, with particularity. Defendants also argue that
Plaintiff lacks standing because she failed to plead damages capable of restitution. Plaintiff states that she incorporates by
reference all prior causes of actions and argues that the Complaint asks for damages for placing Plaintiff into a fraudulent loan. California Business and Professions Code § 17200 prohibits "any unlawful, unfair or fraudulent business act or practice." Cal. Bus. & Prof. Code § 17200. "By proscribing any unlawful
business practice, section 17200 borrows violations of other laws and treats them as unlawful practices that the unfair competition law makes independently actionable." Cel-Tech Communications, Inc.
v. L.A. Cellular Telephone Co., 20 Cal. 4th 163, 180 (Cal. 1999) (internal quotations omitted). The facts supporting the statutory
elements of the UCL violation must be pled with reasonable particularity. Khoury v. Malys of Cal. Inc., 14 Cal.App.4th 612,
619 (Cal. Ct. App. 2d 1993). 10
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Plaintiffs allegation that Defendants acts constitute unlawful, unfair, and fraudulent business practices is a conclusory statement devoid of facts and it fails to meet heightened, or even standard, pleading requirements. Additionally, Plaintiff
incorporates by reference all prior causes of actions; however none of Plaintiffs causes of actions, as discussed supra, are sufficiently pled. Plaintiffs Complaint therefore lacks a Similarly
predicate "unlawful" action underlying her UCL claim.
Plaintiff fails to allege with reasonable particularity "unfair" or "fraudulent" behavior by Defendants. Plaintiff also does not state
how she lost money or property as a result of the Defendants alleged conduct. Plaintiff fails to allege any harm caused by the
allegedly unlawful conduct because Plaintiff has not lost ownership of the subject property. While the subject property was sold at a
Trustees Sale on August 3, 2010, that sale was later rescinded. As a result of Plaintiff's failure to sufficiently plead unlawful, unfair or fraudulent behaviors, Defendants Motion to Dismiss Claim 4 alleging violation of the UCL is GRANTED WITH LEAVE TO AMEND. 5. Claim 5: Foreclosure avoidance, violation of California Civil Code § 2923.5
Plaintiff claims that she was never contacted in person or by phone to assess her financial situation and explore options to avoid foreclosure prior to the date of the Notice of Defaults filing. Defendants argue that even if Plaintiffs allegation were
true, Plaintiff fails to plead damages capable of restitution. California Civil Code § 2923.5(a)(1) provides that a notice of default may not be filed until 30 days after contact is made. A borrowers only remedy for noncompliance with Section 2923.5 is to require more time before the sale can be completed. 11 Mabry
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v. Superior Court, 185 Cal.App.4th 208, 231 (Cal. Ct. App. 4d 2010). Here, a foreclosure sale took place but was later
rescinded to afford the parties an opportunity to explore loan modification. Since there is no pending foreclosure sale and
the Plaintiff has already been afforded the opportunity to explore nonforeclosure options, the sole remedy for violation of California Civil Code § 2923.5 is not applicable to the Plaintiff. In addition, Defendants argue that Plaintiff has not pled any prejudice from the alleged defects in the foreclosure process. Technical defects in the foreclosure process do not See
invalidate the process if the borrower is not prejudiced.
Knapp v. Doherty, 123 Cal.App.4th 76, 94 (Cal. Ct. App. 6d 2004) ("the slight procedural irregularity in the service of the Sale Notice did not cause any injury to [the] [b]orrowers"). Plaintiff has not stated how she was prejudiced or how foreclosure would have been averted but for the alleged deficiencies. The Court finds that any further amendment of this claim would be futile. Accordingly, Defendants motion to dismiss Claim 5 alleging violation of California Civil Code § 2923.5 is GRANTED WITH PREJUDICE. 6. Claim 6: Declaratory and Injunctive Relief Here,
Plaintiffs last claim asks for declaratory and injunctive relief. Defendant argues that injunctive relief and declaratory
relief are remedies and not independent causes of action. Plaintiff does not address Defendants arguments but asks for leave to amend. "Declaratory relief is appropriate (1) when the judgment will 12
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serve a useful purpose in clarifying and settling the legal relations in issue, and (2) when it will terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to the proceeding." Guerra v. Sutton, 783 F.2d 1371, 1376
(9th Cir. 1986) (citations omitted). Plaintiff alleges that there are four issues of controversy: (1) the validity of the Note and Deed of Trust; (2) BONYs interest in the subject loan; (3) Quality Loans authority to file a Notice of Default on the property; and (4) the propriety of any defendant foreclosing under the Deed of Trust. The nature of the declaration
sought is redundant. The relief sought may be obtained under one or more of the other claims alleged in the Complaint, assuming Plaintiff can properly plead these claims. Declaratory relief does not serve to "furnish a litigant with a second cause of action for the determination of identical issues." General of America Insurance Co. v. Lilly, 258 Cal.App.2d 465, 470 (Cal. Ct. App. 2d 1968). Accordingly, since any further amendment would not save
this claim, Defendants motion to dismiss Plaintiffs claim for declaratory relief is GRANTED WITH PREJUDICE. In regards to the injunctive relief claim, "it is appropriate to deny an injunction where there is no showing of reasonable probability of success, even though the foreclosure will create irreparable harm, because there is no justification in delaying that harm where, although irreparable, it is also inevitable." Jessen v. Keystone Savings & Loan Assn., 142 Cal.App.3d 454, 459 (Cal. Ct. App. 4d 1983). Here, Plaintiff does not show a reasonable probability of success on the merits. Accordingly, Defendants
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motion to dismiss Plaintiffs claim for injunctive relief is also GRANTED WITH PREJUDICE.
D.
Motion to Strike
Defendants ask the Court to strike reference to punitive damages because Plaintiff has not properly pled the necessary facts to obtain punitive damages. Plaintiff, without citing any
authority, asks the Court not to strike its requests for punitive damages. A motion to strike must survive a stringent standard and "should not be granted unless it is absolutely clear that the matter to be stricken could have no possible bearing on the litigation." Brewer v. Indymac Bank, 609 F.Supp.2d 1104, 1113 Punitive damages are appropriate "where it is
(E.D. Cal. 2009).
proven by clear and convincing evidence that the defendant is guilty of fraud, oppression or malice[.] . . ." Cal. Civ. Code § 3294(a). Plaintiffs amended complaint must allege specific acts
of fraud, oppression or malice that entitle her to punitive damages. If not, Defendants request to strike the punitive At this time, Defendants Motion to
damages claim will be granted.
Strike punitive damages is DENIED WITHOUT PREJUDICE. III. ORDER For the reasons set forth above, Defendants motion to dismiss Claim 1 alleging deceit is GRANTED WITH LEAVE TO AMEND. Defendants motion to dismiss Claim 2 alleging civil conspiracy is GRANTED WITH LEAVE TO AMEND. Defendants motion to dismiss Claim 3 alleging negligence 14
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is GRANTED WITH LEAVE TO AMEND. Defendants motion to dismiss Claim 4 alleging violation of the Unfair Competition Law § 17200 is GRANTED WITH LEAVE TO AMEND. Defendants motion to dismiss Claim 5 alleging violation of California Civil Code § 2923.5 is GRANTED WITH PREJUDICE. Defendants motion to dismiss Claim 6 requesting declaratory and injunctive relief is GRANTED WITH PREJUDICE. Defendants motion to strike is DENIED WITHOUT PREJUDICE. Plaintiff shall file and serve her Amended Complaint no later than twenty (20) days from the date of this Order.
IT IS SO ORDERED. Dated: March 21, 2011 ____________________________ JOHN A. MENDEZ, UNITED STATES DISTRICT JUDGE
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