Gonzalez et al v. Bank of America, N.A.
Filing
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*** FILED IN ERROR. PLEASE SEE DOCKET # 23 . *** Order by Hon. Samuel Conti granting 17 Motion to Dismiss.(sclc1, COURT STAFF) (Filed on 8/24/2012) Modified on 8/24/2012 (sclc1, COURT STAFF).
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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United States District Court
For the Northern District of California
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MARIA GONZALEZ, et al.,
) Case No. 12-1007-SC
)
Plaintiffs,
) ORDER GRANTING MOTION TO
) DISMISS
v.
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BANK OF AMERICA, N.A.; and DOES )
1 through 10 inclusive,
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Defendants.
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)
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I.
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INTRODUCTION
Plaintiff Maria Gonzalez ("Gonzalez") and twenty-nine other
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individual plaintiffs (collectively, "Plaintiffs") bring this
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action against Defendant Bank of America ("BofA") in connection
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with their home loans and mortgages.
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BofA's motion to dismiss Plaintiffs' First Amended Complaint
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("FAC").
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the motion over two weeks after the deadline set forth in the Civil
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Local Rules.
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appropriate for resolution without oral argument.
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1(b).
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motion.
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///
ECF No. 17 ("MTD").
Now before the Court is
Plaintiffs filed an opposition to
ECF No. 19 ("Opp'n").
The Court finds this matter
See Civ. L.R. 7-
For the reasons set forth herein, the Court GRANTS BofA's
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II.
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BACKGROUND
Plaintiffs are thirty property owners with addresses
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throughout California, Kentucky, and Arizona.1
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5.
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each of Plaintiffs may have taken out a subprime loan from
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Countrywide Financial ("Countrywide"), and then had difficulties
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making their loan payments.
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"departed from all cognizable lending standards" and "were based
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upon highly inflated appraisals."
United States District Court
For the Northern District of California
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ECF No. 5 ("FAC") ¶
The FAC is woefully short on specifics, but it appears that
Plaintiffs allege that their loans
Id. ¶ 13.
BofA acquired Countrywide in July 2008.
Id. ¶ 8.
Immediately
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prior to doing so, BofA entered into an agreement with attorney
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generals from several different states whereby BofA promised to
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offer loan modifications to Countrywide's borrowers.
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modifications were to include principal reduction.
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Id. ¶ 9.
The
Id.
Plaintiffs allege that BofA did not fulfill its promise under
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the settlement agreement.
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modifications with principal reduction, Plaintiffs allege that BofA
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sought to foreclose against homeowners' properties.
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Plaintiffs do not specifically allege that they were offered or
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denied a loan modification or any other pertinent details
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concerning the status of their individual loans.
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allege that "[BofA] has or will in the future cause Notices of
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Default to be recorded against the primary residential properties
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of many Plaintiffs . . . ."
Id. ¶ 10.
Instead of offering loan
Id.
They do vaguely
Id. ¶ 33.
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Plaintiffs assert four causes of action in their FAC: (1)
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rescission, (2) fraudulent concealment, (3) injunctive relief, and
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Thirty borrowers are listed in the caption, but only twenty-nine
are identified in the text of the pleading.
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(4) wrongful foreclosure pursuant to California Civil Code section
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2923.5.
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among other things.
Id. ¶¶ 11-34.
They seek damages and injunctive relief,
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III. DISCUSSION
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A.
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BofA filed its motion to dismiss on June 14, 2012.
Plaintiffs' Late-Filed Opposition
Pursuant
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to Civil Local Rule 7-3(a), Plaintiffs' opposition to the motion
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should have been filed on or before June 28, 2012.
It was not.
On
United States District Court
For the Northern District of California
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July 5, 2012, BofA filed a reply, asking the Court to reject any
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late-filed papers as untimely and dismiss Plaintiffs' action with
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prejudice.
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deadline, Plaintiffs filed an opposition to BofA's motion.
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Plaintiffs' counsel has offered no explanation for their late
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filing.
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ECF No. 28.
On July 13, 2012, over two weeks after the
Though the Court cannot condone such a flagrant violation of
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the Local Rules, dismissing Plaintiffs' action on account of their
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attorneys' late filing would be unjust.
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below, the arguments advanced in Plaintiffs' late-filed opposition
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do not alter the Court's ultimate decision on BofA's motion.
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Court warns Plaintiffs' counsel that future late filings may result
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in dismissal of this action with prejudice for lack of prosecution.
In any event, as detailed
The
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B.
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BofA argues that the thirty plaintiffs to this action are
Improper Joinder
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improperly joined under Federal Rule of Civil Procedure 20.
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20(a)(1) provides for permissive joinder of plaintiffs in cases
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such as this where (A) the plaintiffs "assert any right to relief .
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. . arising out of the same transaction, occurrence, or series of
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Rule
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transactions or occurrences"; and (B) there are common questions of
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law and fact.
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Here, Plaintiffs clearly fail to satisfy the first prong of
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the permissive joinder test since their claims arise out of at
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least twenty-six different loan transactions.2
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Plaintiffs argue that "[t]heir claims arise out of the same alleged
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conduct," but do not go into any further detail.
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Court assumes that Plaintiffs are referring to the alleged
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violations of the settlement agreement between BofA and the state
See FAC ¶ 5.
Opp'n at 4.
The
United States District Court
For the Northern District of California
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attorneys general.
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agreement cannot create a common transaction or occurrence, see
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Coughlin v. Rogers, 130 F.3d 1348, 1350 (9th Cir. 1997), and it is
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not clear from the pleadings that BofA allegedly violated the
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agreement with respect to each of the plaintiffs named in this
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action.
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were denied a loan modification.
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whether any or all of them were eligible for a loan modification
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under the terms of the settlement agreement.
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Plaintiffs' claims appear to arise out of Countrywide's conduct at
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loan origination, long before the settlement agreement was
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executed.
However, multiple violations of a single
Plaintiffs have not alleged that they were not offered or
Nor have Plaintiffs alleged
Further, many of
See, e.g., FAC ¶ 13, 18.
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Since there has been an improper joinder, all plaintiffs
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except Gonzalez -- the first named plaintiff -- are DISMISSED
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WITHOUT PREJUDICE.
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1350.
See Fed. R. Civ. P. 21; Coughlin, 130 F.3d at
The dismissed plaintiffs may re-file separate actions in the
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Some of the thirty plaintiffs jointly entered into loan
transactions. See FAC ¶ 5.
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appropriate jurisdiction and venue.
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adequacy of the FAC with respect to Gonzalez below.
The Court addresses the
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C.
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BofA argues that Gonzalez's claims should be dismissed because
Pleading Requirements
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Plaintiffs have failed to comply with the basic pleading
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requirements set forth in Federal Rule of Civil Procedure 8.
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at 6-7.
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their opposition papers.
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MTD
Plaintiffs do not meaningfully respond to this argument in
Rule 8 requires that a pleading contain "a short and plain
United States District Court
For the Northern District of California
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statement of the claim showing that the pleader is entitled to
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relief."
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to mean that the allegations made in a complaint must be both
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"sufficiently detailed to give fair notice to the opposing party of
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the nature of the claim so that the party may effectively defend
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against it" and "sufficiently plausible" such that "it is not
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unfair to require the opposing party to be subjected to the expense
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of discovery."
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Thus, "threadbare recitals of the elements of a cause of action,
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supported by mere conclusory statements, do not suffice."
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v. Iqbal, 556 U.S. 662, 663 (2009) (citing Bell Atl. Corp. v.
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Twombly, 550 U.S. 544, 555 (2007)).
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Fed. R. Civ. P. 8(a)(2).
Courts have interpreted Rule 8
Starr v. Baca, 633 F.3d 1191, 1204 (9th Cir. 2011).
Ashcroft
Here, the FAC's allegations with respect to Gonzalez (as well
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as the other twenty-nine plaintiffs) do not rise to the level of
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the plausible.
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Gonzalez other than her name and address.
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does not allege that Gonzalez has a loan or mortgage from BofA or
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Countrywide, that she is in need of or eligible for a loan
The FAC does not allege any facts with respect to
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For example, the FAC
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modification, or that BofA has foreclosed or has threatened to
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foreclose on her property.
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Further, the specific claims alleged in the FAC amount to
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little more than "threadbare recitals of the elements of []
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cause[s] of action."
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of action for rescission asserts that Plaintiffs received loans
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which "1) departed from all cognizable lending standards, 2) were
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based upon highly inflated appraisals, and[] (3) which would
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eventually adjust into a payment which was completely unaffordable
See Iqbal, 556 U.S. at 662.
The first cause
United States District Court
For the Northern District of California
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to plaintiffs."
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inter alia, what lending standards were violated or how.
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they allege the specific loan payment amounts or why these amounts
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were unaffordable.
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allegations of fraud, it also falls far short of the heightened
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pleading standards set forth in Federal Rule of Civil Procedure
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9(b).
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FAC ¶ 13.
However, Plaintiffs do not allege,
Nor do
As the rescission claim appears to involve
The FAC's second claim for fraudulent concealment is even more
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implausible.
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cause of action, let alone the particularized factual allegations
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that are necessary to state a cognizable claim for fraud.
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R. Civ. P. 9(b).
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what has been concealed or from whom, why BofA had duty to disclose
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the unidentified concealed facts, or how the concealment caused
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Gonzalez injury.
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App. 4th 862, 870 (Cal. Ct. App. 2011) (setting out the elements
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for a claim for fraudulent concealment).3
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The FAC does not even allege the elements of the
See Fed.
In fact, it is not altogether clear from the FAC
See Bank of Am. Corp. v. Superior Court, 198 Cal.
BofA argues that Gonzalez's first and second claims are timebarred. This argument might have merit, but the Court declines to
address it at this time. The FAC is so vague that the Court cannot
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The FAC's third claim for injunctive relief is not a cause of
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action at all.
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967, 984-85 (Cal. Ct. App. 2003).
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claim, and its availability necessarily depends on the validity of
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an underlying cause of action which affords that type of relief.
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Finally, the FAC's fourth claim for wrongful foreclosure is
Shamsian v. Atl. Richfield Co., 107 Cal. App. 4th
An injunction is a remedy, not a
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too conclusory to be plausible.
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California Civil Code section 2923.5, FAC ¶ 31, which requires the
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"mortgagee, trustee, beneficiary, or authorized agent" seeking to
The claim is predicated on
United States District Court
For the Northern District of California
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file a notice of default to first contact the borrower in person or
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by telephone "in order to assess the borrower's financial situation
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and explore options for the borrower to avoid foreclosure," Cal.
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Civ. Code § 2923.5(a)(2).
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notice of default has been issued in connection with Gonzalez's
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loan and, if it has, whether BofA complied with section 2923.5's
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requirements.
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the future cause Notices of Default to be recorded" on "many
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Plaintiffs."
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clearly inadequate.
It is not clear from the FAC whether a
Plaintiffs merely allege that BofA "has or will in
FAC ¶ 33.
Such imprecise and vague allegations are
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In sum, Gonzalez's first, second, and fourth claims are too
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vague to be cognizable, and her third claim fails as a matter of
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law.
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IV.
CONCLUSION
For the foregoing reasons, the Court GRANTS BofA's Motion to
Dismiss.
The Court finds that Plaintiffs have been improperly
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determine when the alleged misconduct occurred or when Gonzalez
could have discovered it.
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joined and, therefore, DISMISSES from this action all plaintiffs
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except Maria Gonzalez.
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separate actions in the appropriate jurisdiction and venue.
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Gonzalez's claims, her third cause of action for injunctive relief
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is DISMISSED WITH PREJUDICE.
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causes of action are DISMISSED with leave to amend.
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amend her complaint within thirty (30) days of this Order.
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to do so will result in the dismissal of this action with
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prejudice.
The dismissed plaintiffs may re-file
As to
Gonzalez's first, second, and fourth
Gonzalez may
Failure
United States District Court
For the Northern District of California
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IT IS SO ORDERED.
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Dated:
August 24, 2012
UNITED STATES DISTRICT JUDGE
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