Argueta v. JP Morgan Chase et al
Filing
24
MEMORANDUM AND ORDER RE: MOTION TO DISMISS, signed by Judge William B. Shubb on 6/30/11, ORDERING that J.P. Morgan Chase and Federal Home Loan Mortgage Corporation's 13 motion to dismiss the First Amended Complaint is GRANTED. Plaintiff is GRANTED 20 days from the date of this Order to file a Second Amended Complaint. (Kastilahn, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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----oo0oo----
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CECILIA ARGUETA, an
individual,
NO. CIV. 2:11-441 WBS GGH
12
Plaintiff,
MEMORANDUM AND ORDER RE:
MOTION TO DISMISS
13
v.
14
17
J.P. MORGAN CHASE, dba
WASHINGTON MUTUAL F.S.B.,
QUALITY LOAN SERVICE
CORPORATION, FEDERAL HOME LOAN
MORTGAGE CORPORATION, and DOES
1-20,
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Defendants.
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/
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----oo0oo---Plaintiff Cecilia Argueta brought this action against
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defendants J.P. Morgan Chase (“Chase”) d/b/a Washington Mutual
23
F.S.B. (“Washington Mutual” or “WAMU”), Quality Loan Service
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Corporation, and Federal Home Loan Mortgage Corporation (“FHLMC”
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or “Freddie Mac”), arising from defendants’ allegedly wrongful
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conduct related to a residential loan modification application
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and a Notice of Default and Election to Sell Under Deed of Trust.
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Chase and FHLMC have filed a joint motion to dismiss the First
1
1
Amended Complaint (“FAC”), (Docket No. 12), in its entirety for
2
failure to state a claim upon which relief can be granted
3
pursuant to Federal Rule of Civil Procedure 12(b)(6).
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No. 13.)
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I.
(Docket
Factual and Procedural Background
6
In January of 2007, plaintiff refinanced an existing
7
loan and signed a promissory note with Washington Mutual for a
8
$320,000.00 loan, which was secured by a deed of trust for
9
plaintiff’s primary residence.
(FAC ¶¶ 1, 4, 12, 14; Req. for
10
Judicial Notice in Supp. of Defs.’ Mot. to Dismiss (“Defs.’ Req.
11
for Judicial Notice”) Ex. A (recorded deed of trust) (Docket No.
12
13-2).)
13
The FAC alleges that “[t]he promissory note and the
14
deed of trust was subsequently transferred to Freddie Mac,
15
although WaMu, now Chase, retained servicing rights.”
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13.)
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(FAC ¶
A Notice of Default and Election to Sell Under Deed of
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Trust reflecting a default in the amount of $8,007.99 was
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recorded on April 24, 2009, in the Recorder’s Office of San
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Joaquin County.
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August 26, 2010, a Notice of Trustee Sale was recorded.
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D.)
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and Chase from September of 2010 to January of 2011 in which
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plaintiff applied for a loan modification, the trustee sale date
25
was postponed, and ultimately Chase did not give plaintiff a loan
26
modification.
27
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(Defs.’ Req. For Judicial Notice Ex. B.)
On
(Id. Ex.
The FAC details a series of interactions between plaintiff
(See, e.g., FAC ¶¶ 15-55.)
On or about January 10, 2011, Chase wrote to plaintiff
that “she was denied for the Home Affordable Modification Program
2
1
(“HAMP”) because Chase was ‘unable to verify that you live in the
2
Property as your primary residence.’”
3
alleges that “[u]p to that point, Chase never requested
4
information from Plaintiff verifying that she lives in the
5
Property as her primary residence,” which she does.
6
66.)
7
(Id. ¶ 49.)
The FAC
(Id. ¶¶ 49,
On January 19, 2011, Chase refused to discuss
8
plaintiff’s account because the “account [was] in litigation.”
9
(Id. ¶ 50.)
Approximately a day later, “Plaintiff received a
10
letter from Chase confirming that she was denied for a HAMP
11
modification, but also solicited Plaintiff to further contact
12
Chase for other ‘workout’ options.”
13
that “[o]ther than a HAMP modification, Plaintiff was never
14
denied for any other modification review, such as an internal
15
review.”
16
(Id. ¶ 51.)
The FAC alleges
(Id. ¶ 52.)
Plaintiff alleges that even if plaintiff qualified for
17
a modification under a program other than HAMP, “Chase has
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refused to actually review Plaintiff [sic] such a program since
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Chase has a policy to not review any borrower for any
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modification program after that borrower has been denied for a
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modification for any reason.”
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that, because of this policy, Chase has “refused to allow
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Plaintiff to submit additional information to Chase in order to
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confirm that the Property was Plaintiff’s primary residence” and
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has “refused to consider Plaintiff for any other modification
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programs that Chase participates in, including an internal
27
modification program.”
28
(Id. ¶ 53.)
Plaintiff alleges
(Id. ¶¶ 54-55.)
On January 26, 2011, plaintiff filed a complaint in
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1
state court.
On February 16, 2011, Chase and FHLMC removed the
2
action to this court.
3
but the claim for violation of California Civil Code section
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2923.5 in plaintiff’s original Complaint and afforded plaintiff
5
leave to amend.
6
11).)
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violation of section 2923.5 and asserts claims for “Promissory
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Estoppel/Breach of Contract,” breach of covenant of good faith
9
and fair dealing, negligence, and violation of California’s
(Docket No. 1.)
The court dismissed all
(Apr. 11, 2011, Order at 15:13-17 (Docket No.
Plaintiff’s FAC abandons the stand-alone claim for
10
Unfair Competition Law1 (“UCL”), Cal. Bus. & Prof. Code §§
11
17200-17210.
12
II.
Discussion
13
To survive a motion to dismiss, a plaintiff must plead
14
“only enough facts to state a claim to relief that is plausible
15
on its face.”
16
(2007).
17
than a sheer possibility that a defendant has acted unlawfully,”
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Ashcroft v. Iqbal, --- U.S. ----, ----, 129 S. Ct. 1937, 1949
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(2009), and “[w]here a complaint pleads facts that are ‘merely
20
consistent with’ a defendant’s liability, it ‘stops short of the
21
line between possibility and plausibility of entitlement to
22
relief.’”
23
whether a plaintiff has stated a claim, the court must accept the
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
This “plausibility standard,” however, “asks for more
Id. (quoting Twombly, 550 U.S. at 557).
In deciding
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While plaintiff abandoned her stand-alone claim for
violation of California Civil Code section 2923.5, she alleges a
violation of that statute in support of her claim for violation
of California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof.
Code §§ 17200-17210.
28
4
1
allegations in the complaint as true and draw all reasonable
2
inferences in favor of the plaintiff.
3
U.S. 232, 236 (1974), overruled on other grounds by Davis v.
4
Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322
5
(1972).
6
Scheuer v. Rhodes, 416
In general, a court may not consider items outside the
7
pleadings upon deciding a motion to dismiss, but may consider
8
items of which it can take judicial notice.
9
F.3d 1370, 1377 (9th Cir. 1994).
Barron v. Reich, 13
A court may take judicial
10
notice of facts “not subject to reasonable dispute” because they
11
are either “(1) generally known within the territorial
12
jurisdiction of the trial court or (2) capable of accurate and
13
ready determination by resort to sources whose accuracy cannot
14
reasonably be questioned.”
15
Fed. R. Evid. 201(b).
Defendants request that the court judicially notice the
(See Defs.’ Request for Judicial
16
applicable recorded documents.
17
Notice Exs. A-D.)
18
documents, since they are matters of public record whose accuracy
19
cannot be questioned.
20
668, 689 (9th Cir. 2001).
21
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A.
The court will take judicial notice of these
See Lee v. City of Los Angeles, 250 F.3d
“Promissory Estoppel/Breach of Contract”
The elements of a cause of action for breach of
23
contract are (1) the existence of the contract, (2) performance
24
by the plaintiff, (3) breach by the defendant, and (4) damages.
25
First Commercial Mortg. Co. v. Reece, 89 Cal. App. 4th 731, 745
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(2d Dist. 2001).
27
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“The general rule is that if an ‘essential element’ of
a promise is reserved for the future agreement of both parties,
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1
the promise gives rise to no legal obligation until such future
2
agreement is made.”
3
Cnty., 51 Cal. 2d 423, 433 (1959) (quoting Ablett v. Clauson, 43
4
Cal. 2d 280, 284 (1954)).
5
courts have dismissed claims based on “agreements to agree.”
6
See, e.g., Grant v. Aurora Loan Servs., Inc., 736 F. Supp. 2d
7
1257, 1266 (C.D. Cal. 2010).
8
“agreements to negotiate” are enforceable.
9
v. Baskin Robbins U.S.A., 96 Cal. App. 4th 1251, 1255-60 (2d
10
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Based on this principle, a number of
However, some courts have held that
See, e.g., Copeland
Dist. 2002).
Here, plaintiff incorporates her prior allegations and
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City of Los Angeles v. Super. Ct. of L.A.
alleges:
[P]laintiff entered into an oral agreement with Chase
that provided that Plaintiff would submit a modification
application to Chase and provide Chase with requested
documents and that Chase would review Plaintiff for a
loan modification whereby if Plaintiff qualified for any
modification program that Chase participated in, then
Plaintiff would be offered a loan modification.
At all times it was contemplated by the parties that
regardless of whether Plaintiff qualified for a loan
modification, that Chase would review Plaintiff for a
modification and supply Plaintiff an answer as to her
qualifications based on the merits of her financial
situation.
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It was further contemplated at all times by the parties
that Chase and/or Freddie Mac would not foreclose on
Plaintiff’s Property prior to Chase giving Plaintiff an
answer as to whether she qualified for a loan
modification.2
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Plaintiff has not alleged that the parties agreed to
modify the residential loan or that she is entitled to a
modification under the terms of the promissory note or deed of
trust. Plaintiff has also not alleged a claim based on violation
of a statutory right or third-party beneficiary status, claims
which have been rejected by other courts considering the Home
Affordable Modification Program. See Cleveland v. Aurora Loan
Servs., LLC, No. C 11–0773, 2011 WL 2020565, at *5 (N.D. Cal. May
6
1
(FAC ¶¶ 59-60.)
2
Plaintiff’s allegations are deficient for two primary
3
reasons.
First, plaintiff may be alleging an “agreement to
4
agree” to a loan modification, which is not enforceable.
5
City of Los Angeles, 51 Cal.2d at 433.
6
construes plaintiff’s FAC as alleging an “agreement to negotiate”
7
a loan modification and concludes that such agreements are
8
enforceable, plaintiff has only alleged in conclusory fashion
9
that the parties entered into an oral agreement.
See
Second, even if the court
Plaintiff has
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not provided nonconclusory factual content from which the court
11
can plausibly infer that the parties entered into an oral
12
agreement.
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detailed a series of interactions with defendants involving
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plaintiff’s loan modification application, (see FAC ¶¶ 14-56),
15
such facts are only consistent with defendants’ liability and do
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not give rise to plausible entitlement to relief.
17
S. Ct. at 1949.
18
of contract claim.3
19
See Twombly, 550 U.S. at 570.
While plaintiff has
See Iqbal, 129
Accordingly, the court will dismiss the breach
Under California law, a plaintiff alleging a promissory
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24, 2011) (“Numerous district courts within the Ninth Circuit
have ruled that there is no express or implied private right of
action to sue lenders or loan servicers for violation of HAMP.
In addition, numerous courts have determined that individual
borrowers do not have standing to sue under a HAMP [Servicer
Participation Agreement] because they are not intended
third-party beneficiaries of the SPA.”) (citations omitted).
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“A mortgage or deed of trust comes within the statute
of frauds.” Secrest v. Sec. Nat’l Mortg. Loan Trust 2002-2, 167
Cal. App. 4th 544, 552 (4th Dist. 2008). As “an agreement to
modify a contract that is subject to the statute of frauds is
also subject to the statute of frauds,” a loan modification also
requires a written agreement. Id. at 553.
The court need not
reach whether an “agreement to negotiate” a loan modification is
also subject to the statute of frauds.
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1
estoppel claim must show: (1) the existence of a promise “clear
2
and unambiguous in its terms”; (2) “reliance by the party to whom
3
the promise is made”; (3) that any reliance was both “reasonable
4
and foreseeable”; and (4) that the party asserting the estoppel
5
was injured by his reliance.
6
App. 4th 887, 901 (4th Dist. 2005) (quoting Laks v. Coast Fed.
7
Sav. & Loan Ass’n, 60 Cal. App. 3d 885, 890 (2d Dist. 1976)).
US Ecology, Inc. v. State, 129 Cal.
Here, plaintiff’s promissory estoppel claim relies on
8
9
the insufficiently pled “above-referenced agreement,” (FAC ¶ 70),
10
and thus plaintiff has not sufficiently alleged the existence of
11
a promise “clear and unambiguous in its terms.”
12
Inc., 129 Cal. App. 4th at 901 (quoting Laks, 60 Cal. App. 3d at
13
890).
14
claim.
15
16
US Ecology,
Thus, the court will dismiss the promissory estoppel
B.
Breach of Covenant of Good Faith and Fair Dealing
“Every contract imposes upon each party a duty of good
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faith and fair dealing in its performance and its enforcement.”
18
Marsu, B.V. v. Walt Disney Co., 185 F.3d 932, 937 (9th Cir. 1999)
19
(quoting Carma Developers, Inc. v. Marathon Dev. Cal., Inc., 2
20
Cal. 4th 342, 371 (1992)) (internal quotation marks omitted).
21
That duty, known as the covenant of good faith and fair dealing,
22
requires “that neither party will do anything which will injure
23
the right of the other to receive the benefits of the agreement.”
24
Andrews v. Mobile Aire Estates, 125 Cal. App. 4th 578, 589 (2d
25
Dist. 2005) (quoting Careau Co. v. Sec. Pac. Bus. Credit, Inc.,
26
222 Cal. App. 3d 1371, 1393 (2d Dist. 1990)) (internal quotation
27
mark omitted).
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compliance with the express terms of the contract, and cannot be
“[T]he implied covenant is limited to assuring
8
1
extended to create obligations not contemplated in the contract.”
2
Racine & Laramie, Ltd. v. Dep’t of Parks & Recreation, 11 Cal.
3
App. 4th 1026, 1032 (4th Dist. 1992).
4
a supplement to an existing contract, and thus it does not
5
require parties to negotiate in good faith prior to any
6
agreement.”
7
784, 799 (2d Dist. 2008).
McClain v. Octagon Plaza, LLC, 159 Cal. App. 4th
Here, plaintiff’s breach of covenant of good faith and
8
9
“[T]he implied covenant is
fair dealing claim is supported by allegations nearly identical
10
to the allegations that support her breach of contract claim.
11
(Compare FAC ¶¶ 75-91, with id. ¶¶ 57-74.)
12
not sufficiently alleged the existence of a contract, the court
13
will dismiss this claim.
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C.
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Because plaintiff has
Negligence
To state a claim for negligence, a plaintiff must show
16
“(1) a legal duty to use reasonable care, (2) breach of that
17
duty, and (3) proximate cause between the breach and (4) the
18
plaintiff’s injury.”
19
1333, 1339 (2d Dist. 1998).
20
use reasonable care in a particular factual situation is a
21
question of law for the court to decide.”
22
Invs., Inc., 118 Cal. App. 4th 269, 278 (4th Dist. 2004).
Mendoza v. City of L.A., 66 Cal. App. 4th
“The existence of a legal duty to
Vasquez v. Residential
“[A]s a general rule, a financial institution owes no
23
24
duty of care to a borrower when the institution’s involvement in
25
the loan transaction does not exceed the scope of its
26
conventional role as a mere lender of money.”
27
Fed. Sav. & Loan Ass’n, 231 Cal. App. 3d 1089, 1096 (3d Dist.
28
1991).
Nymark v. Heart
This general rule also applies to loan servicers.
9
See
1
Abels v. Bank of Am., No. C 11–0208, 2011 WL 1362074, at *3 (N.D.
2
Cal. Apr. 11, 2011).
3
This no-duty rule does not apply “when the lender’s
4
activities exceed those of a conventional lender.”
5
Countrywide Home Loans, 692 F. Supp. 2d 1240, 1249 (E.D. Cal.
6
2010); see Wagner v. Benson, 101 Cal. App. 3d 27, 35 (4th Dist.
7
1980) (“Liability to a borrower for negligence arises only when
8
the lender ‘actively participates’ in the financed enterprise
9
‘beyond the domain of the usual money lender.’” (quoting Connor
10
11
Osei v.
v. Great W. Sav. & Loan Ass’n, 69 Cal. 2d 850, 864 (1968))).
Even when the lender is acting within the scope of a
12
conventional lender, the no-duty rule is only a general rule.
13
Osei, 692 F. Supp. 2d at 1249.
14
actually existed on the facts of the case, the Nymark court
15
applied the six-factor test established by the California Supreme
16
Court in Biakanja v. Irving, 49 Cal. 2d 647, 650 (1958).
17
Biakanja test balances six non-exhaustive factors:
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[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.
Glenn K. Jackson Inc. v. Roe, 273 F.3d 1192, 1197 (9th Cir. 2001)
19
20
21
To determine whether a duty
The
22
(quoting Biakanja, 49 Cal. 2d at 650) (alterations in original)
23
(internal quotation mark omitted).
Although Biankaja applied the
24
test to determine whether a defendant could be held liable to a
25
third person not in privity with the defendant, Nymark held that
26
the test also determined “whether a financial institution owes a
27
duty of care to a borrower-client.”
28
10
Nymark, 231 Cal. App. 3d at
1
1098.
2
3
4
5
6
7
Here, plaintiff’s negligence claim incorporates the
FAC’s prior allegations and additionally alleges:
By accepting Plaintiff’s modification application,
requesting additional documents and conditions of
Plaintiff, and representing that it was endeavoring to
actually review Plaintiff for a modification, Chase had
an obligation to Plaintiff to do so reasonably and
conform to a standards of conduct for the protection of
Plaintiff against unreasonable risks associated with
reviewing Plaintiffs for a modification.
8
(FAC ¶ 93.)
Chase allegedly acted unreasonably (1) “by failing
9
to actually review Plaintiff for a modification and provide a
10
timely answer to whether or not she qualifies for a modification
11
based on the merits of her financials”; (2) “tak[ing] five months
12
to review Plaintiff for a loan modification when her income is
13
stable, and when she provided all the requested documentation to
14
Chase”; (3) “deny[ing] Plaintiff for a modification in or about
15
January 2011 on account of Plaintiff’s failure to provide proof
16
that the Property was her primary residence, when it was never
17
requested of Plaintiff to provide such documentation”; and (4)
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“refus[ing] to accept any further documentation from Plaintiff to
19
prove that the Property was her primary residence.”
(Id. ¶¶ 94,
20
102-104.)
21
Plaintiff’s allegations about the loan modification
22
application process are insufficient to plausibly suggest that
23
defendants owed plaintiff a duty of care.
See Dooms v. Fed. Home
24
Loan Mortg. Corp., No. CV F 11–0352 LJO DLB, 2011 WL 1232989, at
25
*12 (E.D. Cal. Mar. 31, 2011); Becker v. Wells Fargo Bank, N.A.,
26
Inc., No. 2:10–cv–02799 LKK KJN PS, 2011 WL 1103439, at *23 (E.D.
27
Cal. Mar. 22, 2011) (magistrate judge’s findings and
28
11
1
recommendations) (holding that allegations about loan
2
modification application process did not give rise to duty);
3
DeLeon v. Wells Fargo Bank, N.A., No. 10-CV-01390, 2010 WL
4
4285006, at *4 (N.D. Cal. Oct. 22, 2010) (finding that defendant
5
did not have a duty “to complete the loan modification process”);
6
Sullivan v. JP Morgan Chase Bank, NA, 725 F. Supp. 2d 1087, 1094
7
(E.D. Cal. 2010) (Burrell, J.) (holding that “Plaintiffs’
8
allegations that Defendant misrepresented to them that a
9
permanent loan modification would be put into place are
10
insufficient to form the basis of a negligence claim”).
11
Ansanelli v. JP Morgan Chase Bank, N.A., No. C 10–03892, 2011 WL
12
1134451, at *7 (N.D. Cal. Mar. 28, 2011); Garcia v. Ocwen Loan
13
Servicing, LLC, No. C 10-0290, 2010 WL 1881098, at *3 (N.D. Cal.
14
May 10, 2010) (magistrate judge’s order) (holding that
15
plaintiff’s allegations about loan modification application
16
process were sufficiently pled under Biakanja factors).
17
Accordingly, the court will dismiss the negligence claim.
18
19
D.
But see
Violation of UCL
The UCL prohibits “any unlawful, unfair, or fraudulent
20
business act or practice.”
21
see also Cal-Tech Commc’ns, Inc. v. L.A. Cellular Tel. Co., 20
22
Cal. 4th 163, 180 (1999).
23
reasonable particularity the facts supporting the statutory
24
elements of the violation.”
25
Cal. App. 4th 612, 619 (2d Dist. 1993).
26
Cal. Bus. & Prof. Code § 17200;
“A plaintiff must state with
Khoury v. Maly’s of Cal., Inc., 14
“By proscribing ‘any unlawful’ business practice,
27
‘section 17200 borrows violations of other laws and treats them
28
as unlawful practices’ that the unfair competition law makes
12
1
independently actionable.”
Cal-Tech Commc’ns, Inc., 20 Cal. 4th
2
at 180 (quoting State Farm Fire & Casualty Co. v. Super. Ct., 45
3
Cal. App. 4th 1093, 1103 (2d Dist. 1996)).
4
in the UCL “does not refer to the common law tort of fraud” but
5
only requires a showing that members of the public “are likely to
6
be deceived.”
7
App. 4th 638, 645 (4th Dist. 2008) (quoting Saunders v. Super.
8
Ct., 27 Cal. App. 4th 832, 839 (2d Dist. 1994)) (internal
9
quotation marks omitted).
“Fraudulent” as used
Puentes v. Wells Fargo Home Mortg., Inc., 160 Cal.
A business practice is “unfair” when
10
it “violates established public policy or if it is immoral,
11
unethical, oppressive or unscrupulous and causes injury to
12
consumers which outweighs its benefits.”
13
Inc., 142 Cal. App. 4th 1457, 1473 (2d Dist. 2006).
14
McKell v. Wash. Mut.,
Here, plaintiff’s fourth claim alleges that Chase’s
15
previously-discussed conduct during the loan modification
16
application process was unfair, unlawful, or fraudulent under the
17
UCL.
18
based on violation of California Civil Code section 2923.5, which
19
governs the procedures for filing a Notice of Default.
20
133.)
(FAC ¶¶ 108-123.)
Plaintiff’s fifth claim is a UCL claim
(Id. ¶
21
Even if plaintiff has sufficiently alleged a violation
22
of the UCL, standing to bring a UCL claim requires “a person who
23
has suffered injury in fact and has lost money or property as a
24
result of the unfair competition.”
25
17204 (emphasis added).
26
sufficiently allege that (1) he has “lost ‘money or property’
27
sufficient to constitute an ‘injury in fact’ under Article III of
28
the Constitution,” Rubio v. Capital One Bank, 613 F.3d 1195,
Cal. Bus. & Prof. Code §
To have standing, a plaintiff must
13
1
1203-04 (9th Cir. 2010), and (2) there is a “causal connection”
2
between the defendant’s alleged UCL violation and the plaintiff's
3
injury in fact.
4
App. 4th 847, 855 (4th Dist. 2008)).
5
6
7
Id. at 1204 (quoting Hall v. Time Inc., 158 Cal.
Here, with respect to injury and causation, plaintiff’s
UCL claims allege:
By reason of the foregoing, Plaintiff has suffered and
continues to suffer harm.
8
9
10
11
12
13
14
15
16
Plaintiff has incurred continuing and additional expenses
associated with Chase failing to actually review
Plaintiff for a loan modification. On account of Chase’s
failure, Plaintiff is falling further behind on her
monthly mortgage payments, in addition to having spent
considerable amount of time and energy complying with
Chase’s requests for supplemental documentation. As a
result, she stands to lose her Property, which is her
primary residence.
. . .
As a proximate result of the violations of Civil Code §
2923.5 by Defendants as set forth above, Plaintiff has
suffered and will continue to suffer irreparable injury
through the loss of the subject property.
(FAC ¶¶ 122-123, 132.)
17
Plaintiff’s alleged injury is the possible loss of the
18
property.
19
possible loss of the property even if defendants had not engaged
20
in the alleged conduct involving the loan modification
21
application and failure to comply with California Civil Code
22
section 2923.5.
23
10-CV-01390, 2011 WL 311376, at *7 (N.D. Cal. Jan. 28, 2011)
24
(“Without some factual basis suggesting that Plaintiffs could
25
have cured the default in the fall of 2009, the Court cannot
26
reasonably infer that Wells Fargo’s alleged misrepresentations
27
[that it would complete a loan modification agreement and that no
28
foreclosure sale would occur while the loan modification was
However, plaintiff would still be faced with the
See DeLeon v. Wells Fargo Bank, N.A., No.
14
1
pending] resulted in the loss of Plaintiffs’ home.
2
facts alleged suggest that Plaintiffs lost their home because
3
they became unable to keep up with monthly payments and lacked
4
the financial resources to cure the default.
5
understands Plaintiffs’ frustrations with Wells Fargo’s seemingly
6
contradictory statements and actions, it does not appear that
7
this conduct resulted in a loss of money or property.”); Justo v.
8
Indymac Bancorp, No. SACV 09-1116, 2010 WL 623715, at *4 (C.D.
9
Cal. Feb. 19, 2010) (“[P]laintiffs make no attempt to show a
10
causal connection between the alleged misrepresentation-the
11
promise to modify loans-and the alleged injury-the sale of their
12
homes.”).
13
2010 WL 2354199, at *5 (N.D. Cal. June 9, 2010).
14
because plaintiff lacks standing under the UCL, the court will
15
dismiss the UCL claims.
16
Rather, the
Although the Court
But see Zivanic v. Wash. Mut. Bank, F.A., No. 10-737,
Accordingly,
IT IS THEREFORE ORDERED that J.P. Morgan Chase and
17
Federal Home Loan Mortgage Corporation’s motion to dismiss the
18
First Amended Complaint in its entirety be, and the same hereby
19
is, GRANTED.
20
Plaintiff is granted twenty days from the date of this
21
Order to file a Second Amended Complaint, if she can do so
22
consistent with this Order.
23
DATED:
June 30, 2011
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28
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