Triphina Lesley v. Bank of America, N.A. et al, No. 5:2015cv01696 - Document 31 (C.D. Cal. 2015)
Court Description: ORDER GRANTING IN PART, DENYING IN PART DEFENDANTS MOTIONS TO DISMISS 23 , 24 by Judge Dean D. Pregerson. (lc) Modified on 12/9/2015 (lc).
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Triphina Lesley v. Bank of America, N.A. et al Doc. 31 1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 TRIPHINA LESLEY, 12 Plaintiff, 13 14 v. BANK OF AMERICA, N.A., et al., 15 Defendants. 16 ___________________________ ) ) ) ) ) ) ) ) ) ) ) ) Case No. EDCV 15-01696 DDP (DTBx) ORDER GRANTING IN PART, DENYING IN PART DEFENDANTS’ MOTIONS TO DISMISS [Dkt. Nos. 23, 25] 17 18 Presently before the Court are Defendants Bank of America, 19 N.A.’s (“BANA”) and Fay Servicing, LLC’s (“Fay”) two Motions to 20 Dismiss Plaintiff’s First Amended Complaint (“FAC”). 21 23, 25.) 22 adopts the following Order. 23 I. (Dkt. Nos. After considering the parties’ submissions, the Court BACKGROUND This Court’s previous Order detailed the basic facts of this 24 25 case. (See Dkt. No. 21.) 26 foreclosure after defaulting in 2012 on her loans now owned by 27 BANA. 28 Plaintiff’s previous defaults, loan modification, and bankruptcy in (See FAC ¶¶ 19-20.) Plaintiff is a homeowner facing This 2012 default comes after Dockets.Justia.com 1 2011 and 2012. 2 her 2012 bankruptcy, she applied again for a loan modification in 3 2013 due to a material change in her financial situation. 4 25-26.) 5 BANA and struggled to find a single point of contact that would 6 convey important information in regard to any and all alternatives 7 to foreclosure.” 8 9 (See Dkt. No. 21.) Plaintiff alleges that after (FAC ¶ She alleges that “for months on end, Plaintiff contacted (Id. ¶ 20.) Plaintiff’s FAC alleges four causes of action: violation of California Civil Code sections 2923.6 and 2923.7; declaratory 10 relief under California Civil Code section 2924.12; and unfair 11 business practices under California Business and Professions Code 12 section 17200 et seq. 13 II. 14 Both Defendants move to dismiss.1 LEGAL STANDARD A 12(b)(6) motion to dismiss requires a court to determine the 15 sufficiency of the plaintiff’s complaint and whether or not it 16 contains a “short and plain statement of the claim showing that the 17 pleader is entitled to relief.” 18 Rule 12(b)(6), a court must (1) construe the complaint in the light 19 most favorable to the plaintiff, and (2) accept all well-pleaded 20 factual allegations as true, as well as all reasonable inferences 21 to be drawn from them. 22 F.3d 979, 988 (9th Cir. 2001), amended on denial of reh’g, 275 F.3d 23 1187 (9th Cir. 2001); Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th 24 Cir. 1998). Fed. R. Civ. P. 8(a)(2). Under See Sprewell v. Golden State Warriors, 266 25 26 27 28 1 Defendant The Wolf Law Firm filed a declaration of nonmonetary status in the California state court and is essentially a nonparty to the action. (See Notice of Removal.) 2 1 In order to survive a 12(b)(6) motion to dismiss, the 2 complaint must “contain sufficient factual matter, accepted as 3 true, to ‘state a claim to relief that is plausible on its face.’” 4 Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (quoting Bell Atl. 5 Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 6 “[t]hreadbare recitals of the elements of a cause of action, 7 supported by mere conclusory statements, do not suffice.” 8 678. 9 legal theory or sufficient facts to support a cognizable legal However, Id. at Dismissal is proper if the complaint “lacks a cognizable 10 theory.” 11 1104 (9th Cir. 2008); see also Twombly, 550 U.S. at 561-63. 12 A complaint does not suffice “if it tenders ‘naked 13 assertion[s]’ devoid of ‘further factual enhancement.’” 14 U.S. at 678 (quoting Twombly, 550 U.S. at 556). 15 facial plausibility when the plaintiff pleads factual content that 16 allows the court to draw the reasonable inference that the 17 defendant is liable for the misconduct alleged.” 18 need not accept as true “legal conclusions merely because they are 19 cast in the form of factual allegations.” 20 Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). 21 III. DISCUSSION Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, Iqbal, 556 “A claim has Id. The Court Warren v. Fox Family 22 A. 23 The Court finds that Plaintiff has failed to allege any Fay Servicing 24 properly pled facts against Fay Servicing whatsoever in Plaintiff’s 25 FAC. 26 loans since about July 31, 2015. 27 n.2.) 28 loan servicer, stating in her FAC, “BANA attempted to be the Defendants allege that Fay is the servicer of Plaintiff’s (See Def. BANA Mot. Dismiss at 2 Plaintiff is unclear if she is even alleging that Fay is her 3 1 servicer of the Loan, and continues to be the servicer of the Loan 2 to the present day.” 3 allegations against Fay in the FAC. 4 Motion to Dismiss is granted with prejudice. (FAC ¶ 18.) Either way, there are no Therefore, Fay Servicing’s 5 B. Plaintiff’s Homeowner Bill of Rights Claims against BANA 6 Plaintiff has two causes of action against BANA based on 7 violations of California Civil Code sections 2923.6 and 2923.7. 8 The former claim is that BANA failed to consider and provide a 9 written decision on Plaintiff’s second application for a loan 10 modification based on Plaintiff’s materially changed financial 11 situation. 12 lacked a single point of contact to deal with Plaintiff’s second 13 application. 14 1. 15 The latter deals with Plaintiff’s claim that BANA Dual Tracking Under Section 2923.6 California Civil Code section 2923.6 prohibits mortgage 16 servicers from “dual tracking,” or considering loan modification 17 applications while pursuing foreclosure. 18 a first loan modification in June 2011, but she defaulted on those 19 payments by November 2011. 20 the statute, Plaintiff is not guaranteed a review of later loan 21 modification applications without foreclosure pursual. 22 Civ. Code § 2923.6(c)(3), (g). 23 states that 24 25 26 27 Here, Plaintiff received (See Order, dkt. no. 21.) Thus, under See Cal. Subsection (g) of the statute the mortgage servicer shall not be obligated to evaluate applications from borrowers who have already been evaluated or afforded a fair opportunity to be evaluated for a first lien loan modification prior to January 1, 2013, or who have been evaluated or afforded a fair opportunity to be evaluated consistent with the requirements of this section, unless there has been a material change in the borrower’s financial circumstances since the date of the borrower’s 28 4 1 previous application and that change is documented by the borrower and submitted to the mortgage servicer. 2 Id. § 2923.6(g). Therefore, absent some showing of material change 3 in Plaintiff’s financial circumstances since the previous 4 application, Plaintiff does not have a cause of action under this 5 section. 6 Plaintiff alleges in her FAC that in late 2012, Plaintiff 7 again defaulted on her loan payments and tried to modify her loans 8 to avoid foreclosure. (FAC ¶¶ 20, 26.) Some time after January 1, 9 2013, “Plaintiff submitted a complete loan modification application 10 to BANA.” Id. ¶ 20. Plaintiff claims that she had a material 11 change in her financial circumstances because of her bankruptcy in 12 2012, which discharged much of her debt. (Id. ¶ 26; see also Pl. 13 Opp’n at 5-6.) Plaintiff alleges that despite providing this 14 completed loan application to BANA “[a]fter January 1, 2013,” BANA 15 has not made a written determination on Plaintiff’s eligibility. 16 (FAC ¶ 26.) 17 However, what is missing in Plaintiff’s FAC is an allegation 18 that this bankruptcy actually caused a financial change, an 19 explanation of what that change is, and (most importantly) that 20 this change was documented and sent to BANA with Plaintiff’s 21 completed loan application. See Gilmore v. Wells Fargo Bank N.A., 22 75 F. Supp. 3d 1255, 1263-65 (N.D. Cal. 2014) (finding that a 23 plaintiff’s allegation of “a specific increase in his income to 24 $5,400 per month and a specific decrease in his expenses by $1,000 25 per month” and allegation that “he submitted documentation of this 26 change in the application given to the Wells Fargo representative, 27 who told him the application was complete” was sufficient to state 28 5 1 a claim); see also Rosenfeld v. Nationstar Mortg., LLC, No. 2:13- 2 cv-04830-CAS, 2014 WL 457920 (C.D. Cal. Feb. 3, 2014) (plaintiff 3 alleged a letter was sent detailing the elimination of credit card 4 debt); Vasquez v. Bank of Am. N.A., No. 13-cv-02902-JST, 2013 WL 5 6001924 (N.D. Cal. Nov. 12, 2013) (plaintiff alleged that 6 documentation of increased income was provided to bank). 7 Here, there is no indication of what kind of documentation was 8 provided to BANA. 9 even provided, which would be needed to judge whether the notice of The exact date of the loan application is not 10 default and beginning of the foreclosure process took place after 11 BANA received a complete loan modification application. 12 20 (“Finally, in or about 2013, after reviewing HAMP and inquiring 13 about foreclosure prevention alternatives by conducting her own 14 research, Plaintiff submitted a complete loan modification to 15 BANA.”); ¶ 26 (“After January 1, 2013, Plaintiff requested that 16 [s]he be reviewed for a loan modification when she submitted a 17 complete loan modification agreement.”).) 18 (See FAC ¶ While only a short and plain statement of the claim, including 19 the necessary facts, is needed under Federal Rule of Civil 20 Procedure 8, some statement of those necessary facts are required 21 for this Court to determine that Plaintiff has stated a claim upon 22 which relief can be granted. 23 these facts and so Defendant BANA’s Motion to Dismiss this claim is 24 granted. 25 facts, leave to amend will be granted. 26 Plaintiff has still failed to provide Because Plaintiff may be able to plead these necessary 2. Single Point of Contact Under Section 2923.7 27 California Civil Code section 2923.7 requires a mortgage 28 servicer to provide “a single point of contact” to a borrower 6 1 seeking a foreclosure alternative. Cal. Civ. Code § 2923.7(a). 2 The statute defines a “single point of contact” as “an individual 3 or team of personnel each of whom has the ability and authority to 4 perform the responsibilities described in subdivisions (b) to (d), 5 inclusive.” Id. § 2923.7(e). 6 Here, Plaintiff alleges in her FAC that she was “not provided 7 with the name or information of their ‘Case manager’ after January 8 1, 2013 and to this date” after seeking an alternative to 9 foreclosure. (FAC ¶ 30.) When Plaintiff contacted BANA about 10 modifying her loan or some other means of avoiding foreclosure 11 after defaulting “[i]n or about late 2012,” Plaintiff “for months 12 on end . . . struggled to find a single point of contact that would 13 convey important information in regard to any and all alternatives 14 to foreclosure.” 15 requirements for the single point of contact, Plaintiff alleges 16 that she never received a single point of contact that 17 (Id. ¶ 31.) Considering the statutory 24 (1) Communicated the process by which a borrower may apply for an available foreclosure prevention alternative and the deadline for any required submissions to be considered for these options; (2) Coordinated receipt of all documents associated with available foreclosure prevention alternatives and notifying the borrower of any missing documents necessary to complete the application; (3) Had access to current information and personnel sufficient to timely, accurately, and adequately inform the borrower of the current status of the foreclosure prevention alternative; (4) Ensured that a borrower is considered for all foreclosure prevention alternatives offered by, or through, the mortgage servicer, if any; (5) Had access to individuals with the ability and authority to stop foreclosure proceedings when necessary. 25 (Id. (listing verbatim the requirements of the single point of 26 contact from Cal. Civ. Code § 2923.7(b)(1)-(5)).) 18 19 20 21 22 23 27 28 Defendant BANA argues that these allegations are not sufficient to state a claim, and that Plaintiff’s own allegations 7 1 prove that she did have a compliant point of contact. 2 Mot. Dismiss at 7.) 3 to have a “case manager” and that Plaintiff’s pleading demonstrates 4 that she was in contact with BANA regarding foreclosure 5 alternatives, submitted documents for a loan modification, and was 6 provided a loan modification review, as the statute requires. 7 (Id.) 8 on pre-January 1, 2013, actions do not fall under the Homeowners 9 Bill of Rights because the statute does not apply retroactively. 10 (Def. BANA Defendant argues that there is no requirement Further, BANA argues points out that any allegations based (Def. BANA Reply at 4-5.) 11 Defendant is right that no actions before January 1, 2013, 12 matter for this cause of action, and that there is no statutory 13 requirement for a case manager. 14 stated a cause of action under this statutory section because she 15 alleges that after January 1, 2013, she still did not receive a 16 single point of contact that fulfilled the statutory requirements. 17 Taking the well-pled facts in the FAC as true, as must be done at 18 this stage, Plaintiff has stated claim for relief. 19 Wells Fargo Bank, N.A., 47 F. Supp. 3d 982, 999-1000 (N.D. Cal. 20 2014) (finding similarly pled facts sufficiently stated a claim). However, Plaintiff has otherwise See Penermon v. 21 C. 22 Plaintiff also has claims for relief under California Civil Declaratory Relief and Unfair Competition Law 23 Code section 2924.12 for declaratory relief and under California’s 24 Unfair Competition Law (“UCL”) in California Business and 25 Professions Code section 17200 et seq. 26 claims rely on the existence of an underlying violation of section 27 2923.6 or section 2923.7. (See FAC.) (See Order, dkt. no. 21.) 28 8 Both of these 1 Because this Court determines that Plaintiff has stated a 2 cause of action under section 2923.7, the declaratory relief and 3 UCL causes of action can go forward to the extent they rely upon 4 that cause of action. 5 they are dismissed with leave to amend. 6 IV. 7 In so far as they rely upon section 2923.6, CONCLUSION For all the reasons stated above, the Court GRANTS Defendant 8 Fay’s Motion to Dismiss with prejudice, and the Court GRANTS in 9 part and DENIES in part Defendant BANA’s Motion to Dismiss without 10 11 prejudice. Defendant BANA’s Motion to Dismiss is GRANTED without 12 prejudice as to Plaintiff’s claims based on California Civil Code 13 section 2923.6. 14 fourteen days of the issuance of this Order. 15 16 Plaintiff is granted leave to amend within Defendant BANA’s Motion to Dismiss is DENIED as to Plaintiff’s claims based on California Civil Code section 2923.7. 17 Defendant BANA’s Motion to Dismiss is GRANTED in part and 18 DENIED in part as to Plaintiff’s claims under California Civil Code 19 section 2924.12 and California Business and Professions Code 20 section 17200 et seq., as discussed above. 21 22 IT IS SO ORDERED. 23 Dated: December 9, 2015 DEAN D. PREGERSON United States District Judge 24 25 26 27 28 9
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