Dowling v. Bank of America, National Association et al, No. 1:2014cv01041 - Document 71 (E.D. Cal. 2017)

Court Description: ORDER Denying 57 Motion for Leave to Amend, signed by District Judge Dale A. Drozd on 5/17/2017. (Gaumnitz, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BRENDA D. DOWLING, an individual, 12 13 14 15 16 17 18 No. 1:14-cv-01041-DAD-SAB Plaintiff, v. ORDER DENYING MOTION FOR LEAVE TO AMEND BANK OF AMERICA, NATIONAL ASSOCIATION, a.k.a. BANK OF AMERICA, N.A.; a.k.a. BANK OF AMERICA; and BAC HOME LOANS SERVICING, a.k.a. BANK OF AMERICA HOME LOANS, (Doc. No. 57) Defendants. 19 20 On July 2, 2015, plaintiff Brenda Dowling filed a complaint alleging causes of action for: 21 (1) breach of contract; (2) conversion; (3) intentional infliction of emotional distress; (4–5) 22 violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1962, et seq.; (6) violation of the 23 California Homeowner’s Bill of Rights, Cal. Civ. Code § 2919, et seq.; and (7) violations of 24 California Business and Professions Code §§ 17200, et seq. (Doc. No. 1.) On June 25, 2015, 25 plaintiff filed a first amended complaint asserting the same seven causes of action. (Doc. No. 25.) 26 On March 27, 2017, on the day before non-expert discovery was to close under the court’s 27 scheduling order governing this case, plaintiff sought leave to file a second amended complaint. 28 (Doc. No. 57.) On April 17, 2017, defendant Bank of America, N.A. filed an opposition to the 1 1 motion. (Doc. No. 62.) On April 25, 2017, plaintiff filed a reply. (Doc. No. 63.) On May 5, 2 2017, plaintiff’s motion for leave to amend came before the court for hearing.1 (Doc. No. 65.) 3 Attorney John Drooyan appeared telephonically on behalf of plaintiff and attorney Alison Lippa 4 appeared telephonically on behalf of defendant Bank of America, N.A. Following oral argument 5 plaintiff’s motion to amend was taken under submission. (Id.) For the reasons that follow, 6 plaintiff’s belated motion for leave to amend will be denied. 7 Background Plaintiff’s claims in this action all relate to the mortgage on her property located at 4040 8 9 West Iris Avenue, Visalia, California. (Doc. No. 25 at 3.) In her first amended complaint 10 plaintiff generally alleges that defendants acted improperly in connection with a loan 11 modification process and unlawfully put her home in foreclosure. (Id. at 2–18.) On June 30, 12 2016, the court issued a scheduling order setting the non-dispositive motion deadline as March 13 28, 2017 and the dispositive motion deadline as April 11, 2017. (Doc. No. 50.) The non-expert 14 discovery deadline was set for March 28, 2017 and the expert discovery deadline was set for 15 April 11, 2017. (Id.) The scheduling order noted that: 16 The parties do not anticipate any amendments to the pleadings at this time. The parties are advised that filing motions and/or stipulations requesting leave to amend the pleadings does not reflect the propriety of the amendment or imply good cause to modify the existing schedule, if necessary. All proposed amendments must (A) be supported by good cause pursuant to Fed. R. Civ. P. 16(b) if the amendment requires any modification to the existing schedule, see Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992), and (B) establish, under Fed. R. Civ. P. 15(a), that such an amendment is not (1) prejudicial to the opposing party, (2) the product of undue delay, (3) proposed in bad faith, or (4) futile, see Foman v. Davis, 371 U.S. 178, 182 (1962). 17 18 19 20 21 22 23 (Id. at 2.) On April 11, 2017, the final day to do so under the scheduling order, defendants filed a 24 motion for partial summary judgment and noticed that motion hearing on May 16, 2017. (Doc. 25 No. 61.) Jury trial is set for August 15, 2017. (Doc. No. 50.) 26 1 27 28 The court continued a mandatory settlement conference scheduled for April 11, 2017 to May 23, 2017 after the parties stipulated to that continuance “to enable the Court to have heard and possibly ruled on Plaintiff’s Motion for Leave to file a Second Amended Complaint prior to the mandatory settlement conference.” (Doc. Nos. 59; 60.) 2 1 However, on March 27, 20017, plaintiff filed the present motion for leave to amend to file 2 a second amended complaint alleging additional fraud claims in connection with recordation of 3 the partial claim deed of trust as well as additional conversion claims concerning how her 4 payments were allegedly misapplied. (Doc. Nos. 57–1 at 65–112; 572 at 4–5.) Plaintiff argues 5 that the basis for the proposed amendment is new information first learned at the March 16, 2017 6 deposition of Jennifer Chatman, the person most knowledgeable for defendant Bank of America, 7 N.A., and through defendants’ production of certain documents in discovery that Jennifer 8 Chatman addressed at her deposition. (Doc. No. 57–2 at 4.) 9 Defendant Bank of America, N.A. opposes plaintiff’s motion to amend, arguing that: 1) 10 the motion is tardy and prejudicial to defendant; 2) there are no “new” facts justifying granting of 11 leave to amend; and 3) plaintiff’s proposed amendments are futile. (Doc. No. 62 at 7–9.) 12 Specifically, Bank of America, N.A. contends that the “new” facts that plaintiff alleges she 13 learned for the first time at Ms. Chatman’s deposition concerning the recordation of the partial 14 claim deed of trust, that HUD failed to fund the partial claim, and the application of principal on 15 plaintiff’s payments, are not “new,” but instead have been in the public record as well as in 16 plaintiff’s own loan file since 2010. (Id. at 8.) Bank of America, N.A. also asserts that the 17 proposed fraud and conversion causes of action which plaintiff now seeks to bring based upon 18 alleged wrongdoing from 2009 and 2010 would, in any event, be barred by the applicable three- 19 year statute of limitations. (Id. at 9.) 20 21 Analysis Obviously, the granting of plaintiff’s motion for further leave to amend would require that 22 the pretrial scheduling order also be modified. In this regard, that pretrial scheduling order 23 explicitly provided that ANY amendment of the pleadings after the issuance of that order must 24 “be supported by good cause pursuant to Fed. R. Civ. P. 16(b) if the amendment requires any 25 modification to the existing schedule.” (Doc. No. 50 at 2.) See Johnson v. Mammoth 26 Recreations, Inc., 975 F.2d 604, 607–08 (9th Cir. 1992) (party seeking to amend pleading after 27 date specified in scheduling order must first show “good cause” under Rule 16(b), then if “good 28 cause” is show, the party must demonstrate that amendment is proper under Rule 15). Under 3 1 Rule 16(b), “the focus of the inquiry is upon the moving party’s reasons for seeking 2 modification” and their diligence in doing so. Id. at 607–08, 609. See also Noyes v. Kelly 3 Services, 488 F.3d 1163, 1174 n. 6 (9th Cir. 2007) (“Rule 16(b) provides that a district court's 4 scheduling order may be modified upon a showing of ‘good cause,’ an inquiry which focuses on 5 the reasonable diligence of the moving party.”) (citing Johnson, 975 F.2d at 609). 6 Here, plaintiff’s stated reason for seeking leave to amend and a modification of the 7 scheduling order is the discovery of new evidence. Plaintiff, however, has failed to point to any 8 relevant facts that were in fact unavailable to plaintiff and her counsel. Plaintiff alleges she 9 learned for the first time at Ms. Chatman’s deposition of an alleged delayed credit to principal on 10 March 3, 2010 of plaintiff’s December 2009, January 2010, and February 2010 payments, which 11 plaintiff now wishes to allege constituted an unlawful conversion. (Doc. Nos. 57 at 17–18; 57-1 12 at 84–85, 95–96.) Plaintiff also alleges that at the same time she learned of a variety of “new” 13 facts regarding the reporting and crediting of specific loan payments. (Doc. No. 57 at 18–20.) 14 However, attached as an exhibit to plaintiff’s motion to amend is the payment history on the 15 mortgage provided to plaintiff by Bank of America, N.A. on July 16, 2014. (Doc. No. 57-1 at 16 251–259.) This payment history has long been available to plaintiff, was provided to her by 17 defendant by at least July 16, 2014, and reflects the very facts that plaintiff now claims were just 18 discovered by her for the first time at the March 16, 2017 deposition of Ms. Chatman. Plaintiff’s 19 only explanation is that the payment history was not comprehensible to her or her attorney prior 20 to the Chatman deposition. (Doc. No. 63 at 5.) The court is persuaded that plaintiff was clearly 21 on notice of the facts at issue long before March 16, 2017. 22 Plaintiff also alleges she learned for the first time at Ms. Chatman’s deposition of the 23 recordation of the partial claim deed of trust to HUD by defendants, which plaintiff claims 24 supports her fraud claim. (Doc. Nos. 57 at 18; 57-1 at 90–93.) At deposition, Ms. Chatman 25 actually testified that “[b]ased upon my research, it appears that it was recorded on behalf of Bank 26 of America.” (Doc. No. 57-1 at 17.) However, this is information was available to plaintiff when 27 she filed her original complaint in July of 2014. Indeed, the partial claim deed of trust was 28 attached as an exhibit to that complaint. This document includes a notation that it was prepared 4 1 by “Bank of America Home Loans.” (Doc. No. 1-2 at 33.) Plaintiff now argues that before the 2 deed of trust was recorded, defendants did not contact HUD to request payment of $15,064.12. 3 (Doc. No. 57 at 18.) The recorded documents, however, reflect that the partial claim deed of trust 4 was reconveyed on March 10, 2013. (Doc. No. 62-6 at 2.) Plaintiff therefore has known, or at 5 least been on notice, that HUD had not funded the partial claim since at least March 10, 2013. 6 7 8 9 10 11 Finally, plaintiff appears to claim that she just recently learned Defendants determined that Plaintiff DOWLING and her husband did not qualify for the PARTIAL CLAIM and AGREEMENT because of a communication from the IRS to Plaintiff DOWLING and her husband that states that Plaintiff and her husband made tax overpayment, and the IRS would be refunding $4,293.62 unless other obligations were owed [Ex. “4”]; and an ABSTRACT OF JUDGMENT – CIVIL AND SMALL CLAIMS in the amount of $5,696.00, for which Plaintiff’s husband Brent Dowling is the Judgment Creditor [Ex. “5”]. 12 (Doc. No. 57 at 19.) Plaintiff has not explained how this alleged fact supports any of her 13 proposed new causes of action. Moreover, it is clear that plaintiff was aware since at least July 7, 14 2010, when she signed a negotiation agreement and partial claim agreement, that the partial claim 15 was conditional upon Bank of America, N.A. conducting a title search and resolving any 16 questions concerning potential liens or encumbrances. (Doc. No. 57-1 at 132.) Plaintiff was also 17 aware, or should have been aware, of a notice from the IRS to her involving payment of past due 18 taxes dated March 1, 2010, and a recorded abstract of judgment against her husband Brent 19 Dowling dated January 18, 2008. (Id. at 47–52.) Accordingly, none of these facts can fairly be 20 characterized as recently discovered. 21 Plaintiff and her counsel simply waited until the end of discovery to conduct the 22 deposition of Ms. Chatman on March 16, 2017. Moreover, the court cannot identify any new 23 facts that were first learned by plaintiff at that deposition that would support a finding of good 24 cause for plaintiff’s belated, last-minute motion to amend. Clearly, amendment to the pleadings 25 at this late stage of the litigation would require that an entirely new scheduling order be issued. 26 Under these circumstances, the court cannot conclude that plaintiff was diligent in seeking 27 amendment. Good cause has not been shown. Therefore, plaintiff’s motion for leave to amend 28 must be denied. 5 1 2 Conclusion For all of the reasons set forth above, plaintiff’s motion for leave to amend (Doc. No. 57) 3 is denied. 4 IT IS SO ORDERED. 5 Dated: May 17, 2017 UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6

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