Somsanith v. Bank of America, N.A. et al, No. 2:2009cv01791 - Document 16 (E.D. Cal. 2009)
Court Description: ORDER granting 13 Motion to Dismiss signed by Judge William B. Shubb on 11/5/09. Within ten days of this Order Lawrence P. Ramirez shall either (1) pay sanctions of $200.00 to the Clerk of the Court, or (2) submit a statement of good cause explaining his failure to comply with Local Rule 78- 230(c). Plaintiff is given 20 days from the date of this Order to file an amended complaint consistent with this order. (Kaminski, H)
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Somsanith v. Bank of America, N.A. et al Doc. 16 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---11 12 NANSYVONG SOMSANITH, 13 Plaintiff, NO. CIV. 14 15 16 17 S-09-1791 WBS MEMORANDUM AND ORDER RE: MOTION TO DISMISS v. BANK OF AMERICA, N.A., MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., and DOES 1 through 50, inclusive, 18 Defendants. / 19 ----oo0oo---- 20 Plaintiff Nansyvong Somsanith filed this action against 21 22 Bank of America, N.A (“Bank of America”) and Mortgage Electronic 23 Registration Systems, Inc. (“MERS”) alleging various state claims 24 relating to loans s/he1 obtained to refinance her home in Davis, 25 26 27 28 1 The sex of Nansyvong Somsanith is unclear in plaintiff’s pleadings, as plaintiff's first amended complaint uses both the masculine and feminine pronouns when describing the plaintiff. The court will proceed by referring to the plaintiff in the feminine. 1 Dockets.Justia.com 1 California. 2 America now moves to dismiss plaintiff’s First Amended Complaint 3 (“FAC”) pursuant to Federal Rule of Civil Procedure 12(b)(6) for 4 failure to state a claim upon which relief can be granted. 5 Plaintiff Somsanith did not oppose the motion. 6 file a statement of non-opposition pursuant to Civil Local Rule 7 78-230(c). Therefore, the hearing date of November 9, 2009 was 8 vacated pursuant to Civil Local Rule 78-230(c), and the court 9 took defendant's motion to dismiss under submission without oral 10 Having removed this action to federal court, Bank of Nor did plaintiff argument. 11 To survive a motion to dismiss, a plaintiff needs to 12 plead “only enough facts to state a claim to relief that is 13 plausible on its face.” 14 1955, 1974 (2007). 15 for more than a sheer possibility that a defendant has acted 16 unlawfully,” and where a complaint pleads facts that are “merely 17 consistent with” a defendant’s liability, it “stops short of the 18 line between possibility and plausibility.” 19 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 20 556-57). 21 the allegations contained in a complaint is inapplicable to legal 22 conclusions.” 23 Bell Atl. Corp. v. Twombly, 127 S. Ct. This “plausibility standard,” however, “asks Ashcroft v. Iqbal, “[T]he tenet that a court must accept as true all of Id. at 1949. As a whole, plaintiff’s complaint lacks even basic 24 facts regarding plaintiff’s loans, such as when she took out her 25 mortgages or who her mortgage broker was. 26 alleges a conspiracy existed between Bank of America and MERS to 27 direct her mortgage broker to make misrepresentations to her, she 28 fails to allege facts that would support finding any connection 2 While plaintiff 1 between her unnamed mortgage broker and either of the defendants 2 here. 3 unnamed, non-party mortgage broker form the core of plaintiff’s 4 claims in this action, plaintiff’s failure to allege any 5 connection between the broker and Bank of America proves fatal to 6 her complaint. 7 plaintiff’s causes of action in turn. 8 Because the alleged misrepresentations of plaintiff’s A. Nevertheless, the court will address each of California Financial Code Section 4973 et seq. 9 Plaintiff alleges that Bank of America engaged in 10 predatory lending in violation of California Financial Code 11 section 4973. 12 connection with “covered loans.” 13 14 15 (FAC 17.) Section 4973 prohibits specific acts in A “Covered loan” is: A consumer loan in which the original principal balance of the loan does not exceed the most current conforming loan limit for a single-family first mortgage loan established by the Federal National Mortgage Association in the case of a mortgage or deed of trust, and where one of the following conditions are met: 16 17 18 19 (1) For a mortgage or deed of trust, the annual percentage rate at consummation of the transaction will exceed by more than eight percentage points the yield on Treasury securities having comparable periods of maturity on the 15th day of the month immediately preceding the month in which the application for the extension of credit is received by the creditor. 20 21 (2) The total points and fees payable by the consumer at or before closing for a mortgage or deed of trust will exceed 6 percent of the total loan amount. 22 23 Cal. Fin. Code § 4970(b) (West 2008). 24 conforming loan limit for a single family mortgage loan 25 established by the Federal National Mortgage Association is 26 27 28 3 The most current 1 $417,000.00.2 2 balance single family mortgage loan in Yolo County is 3 $474,950.00.3 4 is $448,000.00, (FAC ¶ 39), but does not allege either that the 5 annual percentage rate at consummation of the transaction 6 exceeded the Treasury securities rate by more than eight 7 percentage points or that the total points and fees paid by the 8 consumer at or before closing exceeded six percent of the total 9 loan amount. The current conforming loan limit for a high- Plaintiff alleges that the principal of her loan Plaintiff merely reincorporates the allegations in 10 her complaint without specifying which defendant allegedly 11 engaged in predatory lending or providing any facts to support 12 such a claim. 13 B. 14 Fraud In California, the essential elements of a claim for 15 fraud are “(a) a misrepresentation (false representation, 16 concealment, or nondisclosure); (b) knowledge of falsity (or 17 ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) 18 justifiable reliance; and (e) resulting damage.” 19 Young, 160 Cal. App. 4th 62, 79 (2008). 20 pleading requirements for claims of fraud under Federal Rule of 21 Civil Procedure 9(b), “a party must state with particularity the 22 circumstances constituting the fraud.” 23 The plaintiffs must include the “who, what, when, where, and how” In re Estate of Under the heightened Fed. R. Civ. P. 9(b). 24 25 26 27 28 2 See Fannie Mae, About Fannie Mae: Loan Limits, available at: http://fanniemae.com/aboutfm/loanlimits/jhtml (last visited November 4, 2009). 3 Fannie Mae, Loan Limit Look-Up Table, available at: https://www.efanniemae.com/sf/refmaterials/loanlimits/jumboconf/x ls/loanlimref.xls (last visited November 4, 2009). 4 1 of the fraud. 2 (9th Cir. 2003) (citation omitted). 3 forth what is false or misleading about a statement, and why it 4 is false.” 5 1994). 6 respond to allegations of fraud, the complaint must inform each 7 defendant of his alleged participation in the fraud.” 8 Reconstrust Co., No. 09cv937, 2009 WL 2407396, at *3 (S.D. Cal. 9 Aug. 4, 2009) (quoting DiVittorio v. Equidyne Extractive Indus., 10 Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1006 “The plaintiff must set Decker v. Glenfed, Inc., 42 F.3d 1541, 1548 (9th Cir. Additionally, “[w]here multiple defendants are asked to Ricon v. 822 F.2d 1242, 1247 (2d Cir. 1987)). Plaintiff alleges that Bank of America directed her 11 12 mortgage broker to make false and misleading statements to her to 13 obtain a deed of trust. 14 assertion is a mere “label and conclusion” which “stops short of 15 the line between possibility and plausibility” required of 16 Federal Rule of Civil Procedure 8, as plaintiff has not alleged 17 any facts whatsoever to support it. 18 Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 556-57). 19 also clearly falls short of the heightened pleading standard of 20 Rule 9(b), as these allegations fail to identify plaintiff’s 21 mortgage broker and when and where the statements were allegedly 22 made. 23 (FAC ¶ 50.) This oft-repeated, yet bare Ashcroft v. Iqbal, 129 S. It Furthermore, plaintiff alleges that Bank of America and 24 MERS were engaged in a conspiracy to withhold information about 25 plaintiff’s loan terms from her. 26 court must accept as true all of the allegations contained in a 27 complaint is inapplicable to legal conclusions.” 28 Plaintiff fails to allege any facts that would support a finding However, “the tenet that a 5 Id. at 1949. 1 that MERS and Bank of America were engaged in a conspiracy to 2 defraud plaintiff. 3 support her allegations that defendants kept key loan information 4 from her; indeed, plaintiff provides almost no information at all 5 about the terms and conditions of her loan or other loan 6 documents. 7 are nothing more than bare assertions which clearly fail to meet 8 the requirements of Rule 8 and the heightened pleading 9 requirements of Rule 9(b). 10 C. Neither has plaintiff alleged any facts that Absent any supporting facts, plaintiff’s allegations Breach of Implied Covenant of Good Faith and Fair 11 Dealing 12 Bank of America seeks dismissal of plaintiff’s fourth 13 cause of action for breach of implied covenant of good faith and 14 fair dealing on the grounds that this claim avers only a 15 contractual violation and is therefore duplicative of plaintiff’s 16 ninth cause of action for breach of loan contracts. 17 Dismiss 8.) 18 implied covenant of good faith and fair dealing is the existence 19 of a contractual relationship between the parties.” 20 City & County of San Francisco, 225 Cal. App. 3d 38, 49 (1990). 21 “To establish a breach of an implied covenant of good faith and 22 fair dealing, a plaintiff must establish the existence of a 23 contractual obligation, along with conduct that frustrates the 24 other party's rights to benefit from the contract.” 25 PNC Fin. Servs. Group, Inc., 2009 U.S. Dist. LEXIS 64624, at 26 **15-16 (N.D. Cal. July 27, 2009). 27 allegations do not go beyond the statement of a mere contract 28 breach and, relying on the same alleged acts, simply seek the (Mot. to “The prerequisite for any action for breach of the 6 Smith v. Fortaleza v. However, “[i]f the 1 same damages or other relief already claimed in a companion 2 contract cause of action, they may be disregarded as superfluous 3 as no additional claim is actually stated.” 4 Sec’y Pac. Bus. Credit, Inc., 222 Cal. App. 3d 1371, 1395 (1990). 5 Plaintiff’s fourth cause of action alleges the same conduct 6 alleged in plaintiff’s ninth cause of action for breach of 7 contract. 8 breach of implied covenant claim seeks damages for her mortgage 9 payments that were inappropriately applied to interest. Careau & Co. v. Like plaintiff’s breach of contract claim, plaintiff’s 10 Plaintiff's request for attorney's fees and costs is likewise 11 already made in plaintiff's fifth cause of action for conversion 12 and sixth cause of action for breach of fiduciary duty. 13 Plaintiff does not allege any facts or request any relief not 14 already present in her complaint. 15 of the implied covenant, therefore, is superfluous. Plaintiff's claim for breach 16 Additionally, plaintiff's general allegations against 17 "Defendants" fail to allege that defendants did "anything which 18 [would] have the effect of destroying or injuring the right of 19 [Plaintiff] to receive the fruits of [a] contract [into which 20 Plaintiff entered with Defendants]." 21 Exchange, Inc., 11 Cal.4th 1, 36 (1995). 22 of good faith and fair dealing is limited to assuring compliance 23 with the express terms of the contract, and cannot be extended to 24 create obligations not contemplated by the contract.” 25 Live, LLC v. City of Pasadena, 114 Cal. App. 4th 1089, 1093-1094 26 (2004). Plaintiff offers only bare assertions that her loan 27 amount was improperly inflated and her home over-valued at the 28 time she took out the mortgages on her home. 7 Waller v. Truck Ins. The “implied covenant Pasadena The only fact that 1 plaintiff offers in support of this assertion is that her home 2 today is worth $450,000.00. 3 plaintiff's allegation that the defendants conspired and mis- 4 applied the "excess" in plaintiff's mortgage payments to interest 5 rather than to principal in violation of her loan contract. 6 Plaintiff further alleges that defendants breached the implied 7 covenant by refusing to refinance her loan and charging monthly 8 payments that plaintiff could not afford. 9 explain what contractual agreement is the basis for this cause of 10 action, merely asserting that her “loan contracts” imposed duties 11 on Bank of America and other defendants. 12 referring to her Deed of Trust or other written agreement, she 13 must allege facts showing that Bank of America was a party to it 14 and that she was denied the benefit of the contract. 15 16 D. These assertions form the basis of Plaintiff fails to If plaintiff is Conversion Defendants also seek dismissal of plaintiff's 17 conversion claim. “Conversion is any act of dominion wrongfully 18 exerted over another's personal property in denial of or 19 inconsistent with his rights therein,” which includes assuming 20 “control or ownership over the property,” or applying the 21 property to one's own use. Messerall v. Fulwider, 199 Cal. App. 22 3d 1324, 1329 (1988) (citing Igauye v. Howard, 114 Cal. App. 2d 23 122, 126 (1952)). The basic elements of a conversion claim are 24 (1) the plaintiff's ownership or right to possession of personal 25 property; (2) the defendant's disposition of the property in a 26 manner that is inconsistent with the plaintiff's property rights; 27 and (3) resulting damages. 28 Corp., 148 Cal. App. 4th 97, 119 (2007) (citing Burlesci v. Fremont Indemnity Co. v. Fremont Gen. 8 1 Petersen, 68 Cal. App. 4th 1062, 1066 (1998)). Legal title to 2 property is not necessary for an action for damages in 3 conversion; a plaintiff must only show that she was “entitled to 4 immediate possession at the time of conversion.” 5 Fulwider, 199 Cal. App. 3d 1324, 1329 (1988) (citing Bastanchury 6 v. Times-Mirror Co., 68 Cal. App. 2d 217, 236 (1945)). Messerall v. As a preliminary matter, plaintiff’s conversion claim 7 8 fails because plaintiff generally alleges her conversion claim 9 against all “defendants” without identifying which defendants 10 allegedly improperly converted plaintiff’s mortgage payments to 11 interest. 12 notice of the claim or claims being asserted against it. 13 Furthermore, plaintiff’s conversion allegations fail to allege 14 facts that make it plausible that Bank of America exercised 15 dominion over plaintiff’s personal property in manner that was 16 inconsistent with plaintiff’s rights at the time. Plaintiff’s 17 claim is premised on a fraudulently obtained loan by defendants. 18 However, as discussed above, plaintiff has not adequately alleged 19 any causes of action sounding in fraud. While plaintiff does 20 allege that Bank of America “set an unjustly high monthly payment 21 by artificially inflating the value of the property to 22 fraudulently justify a larger mortgage,” 23 allegation does not constitute an exercise of dominion by Bank of 24 America over plaintiff’s property. 25 unsupported by facts are mere “labels and conclusions” 26 insufficient to withstand a motion to dismiss. 27 S. Ct. at 1964-65. 28 E. As such, plaintiff fails to put Bank of America on Breach of Fiduciary Duty 9 (FAC ¶ 63), this Vague allegations that are See Twombly, 127 1 Bank of America moves to dismiss plaintiff’s sixth 2 cause of action for breach of fiduciary duty. Plaintiff alleges 3 that “defendants” were part of a conspiracy to direct her 4 mortgage broker to make the false and misleading statements that 5 form the basis of her complaint. 6 broker owes plaintiff a fiduciary duty, plaintiff alleges that 7 defendants, including Bank of America, can be liable for 8 conspiring to breach the broker’s fiduciary duty to plaintiff. 9 (FAC ¶ 69.) Because plaintiff’s mortgage “The elements of a cause of action for breach of 10 fiduciary duty are: 1) the existence of a fiduciary duty; 2) a 11 breach of the fiduciary duty; and 3) resulting damage.” 12 Pellegrini v. Weiss, 165 Cal. App. 4th 515, 524 (2008). 13 While plaintiff correctly points out that mortgage 14 brokers in California owe a fiduciary duty to their clients, 15 “[t]he relationship between a lending institution and its 16 borrower-client is not fiduciary in nature.” 17 Fed. Savings & Loan Assn., 231 Cal. App. 3d 1089, 1093 n. 1, 1096 18 (1991) (“[A]s a general rule, a financial institution owes no 19 duty of care to a borrower when the institution's involvement in 20 the loan transaction does not exceed the scope of its 21 conventional role as a mere lender of money.”); see also Oaks 22 Management Corp. v. Superior Court, 145 Cal. App. 4th 453, 466 23 (2006) (absent special circumstances, a loan transaction is at 24 arms-length and there is no fiduciary relationship between the 25 borrower and lender). 26 its own economic interests in a loan transaction. 27 Cal. App. 3d at 1093 n. 1 (citing Kruse v. Bank of America, 202 28 Cal. App. 3d 38, 67 (1988)). Nymark v. Heart A commercial lender is entitled to pursue 10 Nymark, 231 1 As previously discussed, plaintiff’s allegations of a 2 conspiracy between defendants and with plaintiff’s unnamed 3 mortgage broker are mere “labels and conclusions” that are 4 insufficient to withstand a motion to dismiss. 5 allege, however, that Bank of America is her loan originator and 6 current servicer of her loan. 7 therefore, Bank of America does not owe plaintiff a fiduciary 8 duty. 9 existence of special circumstances such that a fiduciary Plaintiff does Absent special circumstances, Plaintiff has not alleged any facts suggesting the 10 relationship between herself and Bank of America was created, or 11 that Bank of America acted outside the scope of their 12 conventional role as a mere money lender. Therefore, plaintiff’s 13 cause of action for breach of fiduciary duty fails. 14 15 F. Civil Code Section 2923.5 Section 2923.5 of the California Civil Code provides 16 that a declaration shall be included in a notice of default 17 stating that "the mortgagee, beneficiary, or authorized agent . . 18 . has contacted the borrower . . . or tried with due diligence to 19 contact the borrower." 20 alleges that “defendants” failed to properly contact plaintiff 21 and give notice of the Notice of Default. 22 FAC simply makes a general allegation as to two defendants. 23 general allegation gives Bank of America insufficient notice of 24 whether it has committed any conduct to violate section 2923.5, 25 and Bank of America should not be forced to guess whether they 26 are individually liable for this conduct. 27 Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 28 459 U.S. 519, 526 (1983). In support of this claim, plaintiff only 11 (FAC ¶¶ 76-77.) The This See Associated Gen. 1 G. Wrongful Foreclosure 2 Plaintiff’s eighth claim asserts a wrongful foreclosure 3 claim against “defendants” that is predicated on alleged fraud by 4 defendants in obtaining the loan and violations of Sections 5 2923.5 and 2924 of the California Civil Code. (FAC ¶¶ 82-83.) 6 Plaintiff alleges that the subject loan at issue was obtained due 7 to fraud and material misrepresentations, and that as a result of 8 such fraud, “there was no valid [residential mortgage loan] on 9 the property and therefore, no possibility of default to give 10 rise to a foreclosure by the Defendants.” 11 accordingly requests that the “foreclosure proceedings be 12 stopped.” 13 (FAC ¶ 82.) Plaintiff Id. ¶ 81. Preliminarily, plaintiff's cause of action fails 14 because plaintiff does not allege any specific claim against any 15 specific defendant. 16 America on notice of the claim or claims being asserted against 17 it. 18 of America, however, the claim would still fail. 19 above, plaintiff has failed to meet the heightened pleading 20 standard of Rule 9(b) as to plaintiff’s fraud allegations and has 21 failed to allege a viable cause of action under California Civil 22 Code section 2923.5. 23 As such, plaintiff fails to place Bank of Even if plaintiff had properly alleged her claim as to Bank As discussed Plaintiff also cites California Civil Code § 2924 for 24 her wrongful foreclosure claim. 25 notice of default was defective. 26 requirements for notices of default, including that they contain: 27 28 According to plaintiff, the Section 2924 sets forth various (A) A statement identifying the mortgage or deed of trust by stating the name or names of the trustor or trustors and giving the book and page, or instrument 12 1 2 3 4 5 6 7 number, if applicable, where the mortgage or deed of trust is recorded or a description of the mortgaged or trust property; (B) A statement that a breach of the obligation for which the mortgage or transfer in trust is security has occurred. (C) A statement setting forth the nature of each breach actually known to the beneficiary and of his or her election to sell or cause to be sold the property to satisfy that obligation and any other obligation secured by the deed of trust or mortgage that is in default. 8 Cal. Civ. Code § 2924(a)(1)(A)-(C). Plaintiff does not allege a 9 single fact that would support a finding that the notice under 10 section 2924 was defective. Plaintiff merely asserts that “the 11 amount stated as due and owing in the Notice of Default is 12 incorrect for the following reasons: an incorrect interest rate 13 adjustment, incorrect tax impound accounts, and misapplied 14 payments.” (FAC ¶ 84.) Notably absent from plaintiff’s FAC is 15 any statement that plaintiff did not breach her mortgage 16 obligations. So successfully plead an action for wrongful 17 foreclosure pursuant to section 2924, plaintiff must identify the 18 specific subsection of section 2924 that defendants allegedly 19 violated and must allege facts showing that the notice of default 20 violated this provision. 21 H. Breach of Loan Contracts 22 Bank of America moves to dismiss plaintiff's ninth 23 cause of action for breach of contract. In California, "[a] 24 cause of action for breach of contract requires proof of the 25 following elements: (1) existence of the contract; (2) 26 plaintiff's performance or excuse for nonperformance; (3) 27 defendant's breach; and (4) damages to plaintiff as a result of 28 13 1 the breach." CDF Firefighters v. Maldonado, 158 Cal. App. 4th 2 1226, 1239 (2008). 3 into "written agreements" with Bank of America, and that Bank of 4 America subsequently breached its contracts by "failing to 5 accurately credit homeowners' payments to their accounts, 6 assessing and demanding substantial, unwarranted costs and fees 7 under threat of foreclosure, and other behavior in breach of the 8 contract." (FAC ¶ 93.) 9 actions with respect to plaintiff or plaintiff's contract, and Plaintiff vaguely alleges that she entered This allegation fails to allege any 10 instead alleges a pattern of general behavior on the part of Bank 11 of America. 12 plaintiff's contract with Bank of America. 13 Therefore, this fails to allege a breach of Plaintiff further alleges that "defendants" violated 14 the loan contract "by applying the extra payments to interest 15 that was not legitimately owed by Plaintiff." 16 general allegation does not give Bank of America sufficient 17 notice of whether it has committed any conduct that could serve 18 as a basis for a breach of contract claim, and Bank of America 19 should not be forced to guess whether they are individually 20 liable for this conduct. 21 Cal., Inc., 459 U.S. at 526. 22 to Bank of America specifically, plaintiff has not alleged 23 sufficient facts to support a finding that Bank of America 24 artificially inflated the value of plaintiff's home so to 25 increase the amount of plaintiff's loan and monthly mortgage 26 payments. 27 plaintiff's claim that plaintiff made mortgage payments in excess 28 of the amount owed and that "defendants" improperly applied the Id. ¶ 94. This See Associated Gen. Contractors of Even if plaintiff were to plead as Because this alleged inflation provides the basis for 14 1 excess to interest rather than to principal, plaintiff fails to 2 state a claim upon which relief can be granted. 3 Finally, plaintiff alleges that Bank of America failed 4 to perform upon its "false promises" allegedly made to plaintiff 5 by plaintiff's mortgage broker to induce plaintiff to enter into 6 the mortgage loan agreement. 7 does not allege that these representations are a part of her loan 8 agreement with Bank of America, these allegations fail to state a 9 cause of action for breach of contract. 10 I. (FAC ¶¶ 89, 92.) Because plaintiff California Business & Professions Code Section 17200 11 California’s Unfair Competition Law (“UCL”), Cal. Bus. 12 & Prof. Code §§ 17200-17210, prohibits “any unlawful, unfair, or 13 fraudulent business act or practice.” 14 v. Los Angeles Cellular Tel. Co., 20 Cal. 4th 163, 180 (1999). 15 “By proscribing ‘any unlawful’ business practice, section 17200 16 ‘borrows' violations of other laws and treats them as unlawful 17 practices that the unfair competition law makes independently 18 actionable.” 19 generally derivative of some other illegal conduct or fraud 20 committed by a defendant, and “[a] plaintiff must state with 21 reasonable particularity the facts supporting the statutory 22 elements of the violation.” 23 Cal. App. 4th 612, 619 (1993). Id. (citation omitted). Cal-Tech Communic’ns, Inc. This cause of action is Khoury v. Maly’s of Cal., Inc., 14 Plaintiff here alleges that "defendants" made untrue or 24 25 misleading statements to plaintiff and caused such statements to 26 be made by plaintiff's mortgage broker to plaintiff with the 27 intent to induce her into entering into the mortgage loan 28 agreement. (FAC ¶ 46.) Plaintiff's FAC provides a description 15 1 of such statements that "defendants" allegedly made. 2 other of plaintiff's causes of action, these generalized 3 allegations fail to sufficiently put Bank of America on notice as 4 to whether it has committed any conduct that could serve as a 5 basis for a section 17200 claim. 6 of Cal., Inc., 459 U.S. at 526. 7 plaintiff has not alleged facts to support the allegation that 8 Bank of America was engaged in a conspiracy either with MERS or 9 with plaintiff's unnamed mortgage broker. 10 Like many See Associated Gen. Contractors Furthermore, as explained above, Plaintiff further alleges that she paid significantly 11 more than the fair market value of her home because of Bank of 12 America's practice of giving mortgage loans to subprime borrowers 13 and "fraudulently inflating the assessed values of properties." 14 (FAC ¶ 47.) 15 explain how granting loans to "subprime" borrowers is unlawful, 16 unfair, or fraudulent. 17 borrowers including plaintiff "were not actually qualified" for 18 their loans, this allegation does not support the conclusion that 19 it was somehow unlawful, unfair, or fraudulent for Bank of 20 America to loan money to those borrowers. 21 of fraudulently inflating the value of homes, as explained above, 22 does not meet the pleading requirements of Federal Rule of Civil 23 Procedure 8, or the heightened pleading standard for allegations 24 of fraud under Rule 9(b). 25 therefore, can survive a motion to dismiss. 26 As to the first allegation, plaintiff does not While plaintiff alleges that subprime The second allegation Neither of these allegations, Plaintiff also alleges that, as a result of Bank of 27 America's lax lending standards and role in the alleged 28 conspiracy to cause her mortgage broker to make misleading 16 1 statements, she was fraudulently induced into a loan that she 2 could not actually afford. 3 described above, this allegation fails to meet the heightened 4 pleading standard of Federal Rule of Civil Procedure 9(b). 5 J. 6 (FAC ¶ 47.) For the same reasons Sanctions If plaintiff's attorney could not draft a complaint 7 that contained a single claim upon which relief could be granted, 8 the very least he could have done was to comply with Local Rule 9 78-230(c) and told the court he had no opposition to the granting 10 of defendants' motion. 11 other court, he ignored the local rule and did nothing in 12 response to the motion to dismiss his complaint.4 13 failure to comply with Local Rule 78-230(c) and timely file any 14 response to Bank of America's motion to dismiss is inexcusable, 15 and has put this already burdened court to the task of examining 16 the merits of a motion that for all practical purposes was 17 unopposed. 18 Instead, as he has done in at least one Counsel's Local Rule 11-110 authorizes the court to impose 19 sanctions for "[f]ailure of counsel or of a party to comply with 20 these Rules." 21 counsel, Lawrence P. Ramirez, $200.00 payable to the Clerk of the 22 Court within ten days from the date of this Order, unless he 23 shows good cause for his failure to comply with the Local Rules. Therefore, the court will sanction plaintiff's 24 25 26 27 28 4 This is not the first time Mr. Ramirez has failed to comply with the equivalent of Local Rule 78-230(c). In Fortaleza v. PNC Financial Services Group, Inc., Mr. Ramirez similarly failed to file any papers in response to a motion to dismiss. No. 09-2004, 2009 WL 2246212, at *1 (N.D. Cal. July 27, 2009). Such repeated disregard for the Local Rules should not go unsanctioned. 17 1 IT IS THEREFORE ORDERED that Bank of America's motion 2 to dismiss be, and the same hereby is, GRANTED as to Bank of 3 America. 4 IT IS FURTHER ORDERED that within ten days of this 5 Order Lawrence P. Ramirez shall either (1) pay sanctions of 6 $200.00 to the Clerk of the Court, or (2) submit a statement of 7 good cause explaining his failure to comply with Local Rule 78- 8 230(c). 9 Plaintiff is given 20 days from the date of this Order 10 to file an amended complaint consistent with this order. 11 DATED: November 5, 2009 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18
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