Linda C. Reed v. Wilmington Trust, National Association et al, No. 4:2016cv01933 - Document 33 (N.D. Cal. 2016)

Court Description: ORDER GRANTING, IN PART, AND DENYING, IN PART 24 Motion to Dismiss and Amended Notice and DENYING AS MOOT 11 Ex Parte MOTION for Temporary Restraining Order. Signed by Judge Jeffrey S. White on June 3, 2016. (jswlc3, COURT STAFF) (Filed on 6/3/2016)
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Linda C. Reed v. Wilmington Trust, National Association et al Doc. 33 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 LINDA C. REED, Plaintiff, 8 9 10 United States District Court Northern District of California 11 v. WILMINGTON TRUST, N.A., et al., Defendants. Case No. 16-cv-01933-JSW ORDER GRANTING, IN PART, AND DENYING, IN PART, MOTION TO DISMISS AND DENYING AS MOOT MOTION FOR A TEMPORARY RESTRAINING ORDER Re: Docket Nos. 11, 24 12 13 Now before the Court for consideration is the motion to dismiss, filed by Defendants, and 14 the motion for a temporary restraining order, filed by Plaintiff. The Court has considered the 15 parties’ papers, relevant legal authority, and the record in this case. On May 4, 2016, the Court 16 heard oral argument on Plaintiff’s motion for a temporary restraining order, and, with the 17 agreement of the parties, it held that motion in abeyance pending the hearing on Defendants’ 18 motion to dismiss. On June 3, 2016, the Court heard oral argument on the Defendants’ motion to 19 dismiss. The Court GRANTS, IN PART, AND DENIES, IN PART, Defendants’ motion to 20 dismiss. For reasons set forth below, the Court DENIES Plaintiff leave to amend. As a result of 21 this ruling, the Court DENIES AS MOOT Plaintiff’s motion for a temporary restraining order. 22 BACKGROUND 23 On or about June 15, 2006, Plaintiff obtained a loan from Metrocities Mortgage LLC 24 (“Metrocities”), in the amount of $640,000 for real property located at 840 Glen Drive, San 25 Leandro. The loan was secured by a Deed of Trust, in which Metrocities is listed as the lender and 26 Fidelity National Loan Portfolio Solutions (“Fidelity National”) is identified as the trustee. 27 Mortgage Electronic Registrations Systems, Inc. (“MERS”) is identified as the beneficiary, as 28 nominee for Metrocities. (Notice of Removal, Ex. A (Compl. ¶¶ 2, 7, 14, Ex. A (Adjustable Rate Dockets.Justia.com 1 Note), Ex. B (Deed of Trust).) On April 29, 2011, Bud Kamyabi, who identified himself as an Assistant Secretary of 2 3 MERS, executed an assignment of the Deed of Trust from Metrocities to BAC Home Loans 4 Servicing, LP f/k/a Countrywide Home Loans Servicing L.P. (“BAC”). (Compl. ¶ 17, Ex. D.) 5 Plaintiff alleges that Mr. Kamyabi is a “robo-signer,” and that this assignment is “void and breaks 6 the chain of title.” (Compl. ¶ 17.) In support of that allegation, Plaintiff attached a Property 7 Securitization Report prepared by Robert K. Ramers. (Compl. Ex. C (“Property Report”).) Mr. 8 Ramers states that “[t]here is a strong possibility that [Mr. Kamyabi] was a robo-signer.” That 9 statement is based on a document that includes Mr. Kamyabi’s name on an article that suggests he 10 was a robo-signer for BAC and was not a MERS employee. (Property Report at pp. 16-17.) On February 7, 2012, Bank of America, N.A. (“BofA”), as successor by merger to BAC, United States District Court Northern District of California 11 12 executed a substitution of trustee, whereby it substituted Recontrust Company, N.A (“Recontrust”) 13 as trustee in favor of Fidelity National. (Id., ¶ 19, Ex. F.) On May 7, 2014, BofA executed an 14 assignment of the Deed of Trust in favor of Christiana Trust, a division of Wilmington Savings 15 Fund Society FSB (“Christiana Trust”), in its capacity as trustee of ARLP Trust 3. (Id. ¶ 18, Ex. 16 E.) 17 On March 16, 2015, Christiana Trust, in its capacity as Trustee of ALRP Trust 4, assigned 18 the Deed of Trust to Wilmington Trust, National Association in its capacity as trustee of ARLP 19 Securitization Trust, Series 2014-2 (“ALRP 2014-2 Trust”). This document was executed by 20 Ocwen Loan Servicing, LLC (“Ocwen”), acting as attorney in fact for Christiana Trust. (Id. ¶ 21, 21 Ex. G.) The record includes a notice dated October 5, 2012, from Ocwen to Plaintiff advising her 22 that it had taken over as servicer. Plaintiff alleges that she did not receive notice at that time. (Id. 23 ¶ 23, Ex. H at ECF pp. 40-45.) 24 Plaintiff alleges that the ARLP 2014-2 Trust closed on November 25, 2014. (Id. ¶¶ 20, 25 35.) According to Plaintiff, the assignment to the ARLP 2014-2 Trust is “void due to the fact that 26 the assignments were made to assignees not in their individual capacities but as trustees, and 27 because the trusts identified in” the assignments are not the same. (Id. ¶ 21; see also id. ¶¶ 22.b, 28 2 1 36.)1 That is, Plaintiff alleges that there is no record of an assignment from ARLP Trust 3 to 2 ALRP Trust 4 and, thus, the beneficial interest in the Deed of Trust was not validly transferred to 3 the ARLP 2014-2 Trust. (Id. ¶¶ 21-22.b.) At some unspecified point, Plaintiff defaulted on the loan. On October 1, 2015, Western 4 5 Progressive, LLC (“Western Progressive”), as Trustee, recorded a Notice of Default. (Id. ¶ 24, 6 Ex. I.) Plaintiff alleges that the Notice of Default is not valid, because there is no record of 7 Western Progressive having been substituted as Trustee in favor of Recontrust. On or around March 1, 2016, Western Progressive recorded a Notice of Trustee’s Sale, 8 9 which was originally scheduled for April 4, 2016. (Id. ¶ 26, Ex. J.) On March 18, 2016, Plaintiff filed her Complaint in the Superior Court of the State of 10 United States District Court Northern District of California 11 California, County of Alameda. Plaintiff asserts three claims for relief: (1) wrongful foreclosure; 12 (2) slander of title; and (3) a violation of the Real Estate Settlement Procedures Act (“RESPA”). 13 On March 24, 2016, the state court granted Plaintiff’s application for a temporary restraining order 14 and enjoined Defendants from completing foreclosure until April 29, 2016. (Notice of Removal, 15 Ex. B.) At the hearing on Plaintiff’s motion for a temporary restraining order, Defendants agreed 16 17 to postpone the sale until June 6, 2016. ANALYSIS 18 19 A. Applicable Legal Standard for Motion to Dismiss. A motion to dismiss is proper under Federal Rule of Civil Procedure 12(b)(6) where the 20 21 complaint fails to state a claim upon which relief can be granted. The Court’s “inquiry is limited 22 to the allegations in the complaint, which are accepted as true and construed in the light most 23 favorable to the plaintiff.” Lazy Y Ranch LTD v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008). 24 Even under the liberal pleadings standard of Federal Rule of Civil Procedure 8(a)(2), “a plaintiff’s 25 obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and 26 27 28 1 There are two paragraphs numbered “22” in the Complaint. To ensure the record is clear, the Court shall refer to the first paragraph as paragraph 22.a and the second as paragraph 22.b. 3 1 conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell 2 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citing Papasan v. Allain, 478 U.S. 265, 286 3 (1986)). Pursuant to Twombly, a plaintiff must not merely allege conduct that is conceivable but 4 must allege “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. “A 5 claim has facial plausibility when the Plaintiff pleads factual content that allows the court to draw 6 the reasonable inference that the Defendant is liable for the misconduct alleged.” Ashcroft v. 7 Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). 8 9 As a general rule, “a district court may not consider material beyond the pleadings in ruling on a Rule 12(b)(6) motion.” Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994), overruled on other grounds, Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002) (citation 11 United States District Court Northern District of California 10 omitted). However, documents subject to judicial notice may be considered on a motion to 12 dismiss. In doing so, the Court does not convert a motion to dismiss to one for summary 13 judgment. See Mack v. South Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986), overruled 14 on other grounds by Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104 (1991). For 15 example, the Court can take judicial notice of the existence of public records or court documents, 16 but it may not take judicial notice of disputed facts in those documents. See, e.g., Lee v. City of 17 Los Angeles, 250 F.3d 668, 689-90 (9th Cir. 2001); Hotel Employees and Restaurant Employees 18 Local 2 v. Vista Inn Management Co., 393 F. Supp. 2d 972, 978 (N.D. Cal. 2005); Fed. R. Evid. 19 201. In addition, the incorporation by reference doctrine “permits a district court to consider 20 documents whose contents are alleged in a complaint and whose authenticity no party questions, 21 but which are not physically attached to the [plaintiff’s] pleading.” In re Silicon Graphics Inc. 22 Sec. Litig., 183 F.3d 970, 986 (9th Cir. 1999) (internal quotations and citation omitted); see also 23 Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010). 24 If the allegations are insufficient to state a claim, a court should grant leave to amend, 25 unless amendment would be futile. See, e.g. Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th 26 Cir. 1990); Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv., Inc., 911 F.2d 242, 246-47 (9th 27 Cir. 1990). 28 4 1 B. The Court Grants Defendants’ Motion to Dismiss. 1. 2 Wrongful Foreclosure. In order to state a claim for wrongful foreclosure Plaintiff must allege that “(1) the trustee 3 or mortgagee caused an illegal, fraudulent, or willfully oppressive sale of real property pursuant to 4 a power of sale in a mortgage or deed of trust; (2) she was prejudiced or harmed; and (3) she 5 tendered the amount of the secured indebtedness or was excused from tendering.”2 Simmons v. 6 Aurora Bank FSB, No. 13-cv-00482-HRL, 2016 WL 192571, at *7 (N.D. Cal. Jan. 15, 2016) 7 (citing Lona v. Citibank, N.A., 202 Cal. App. 4th 89, 104 (2011)). In the context of non-judicial 8 foreclosure proceedings, “only the current beneficiary” of a deed of trust “may direct the trustee to 9 undertake the nonjudicial foreclosure process.” Yvanova v. New Century Mortgage, 62 Cal. 4th 10 919, 927-28 (2016). “A foreclosure initiated by one with no authority to do so is wrongful for 11 United States District Court Northern District of California purposes of” a wrongful foreclosure action. Id. at 929. 12 a. 13 Late Assignment in Violation of Pooling and Service Agreement. Plaintiff’s primary theory of liability on the wrongful foreclosure claim is that the 14 assignment of her loan to the ARLP 2014-2 Trust occurred after closing date set forth in the 15 Pooling and Servicing Agreement (“PSA”). Plaintiff alleges “upon information and belief the 16 ARLP 2014-2 Trust was formed under New York trust law.” (Compl. ¶ 35.) Plaintiff further 17 alleges that the attempt to transfer the interest in her Deed of Trust after the closing date “was in 18 contravention of the express terms of the Trust and, as such, was void.” (Id. ¶ 36.) In support of 19 this theory of liability, Plaintiff relies on Yvanova and Glaski v. Bank of America, 218 Cal. App. 20 4th 1079 (2013).3 21 22 23 24 25 2 Defendants argue that Plaintiff fails to state a claim, because she fails to allege she can tender the amount due. The Court finds that Plaintiff has alleged facts showing that tender should be excused, because the foreclosure sale has not yet occurred. See Chavez v. IndiMac Mortgage Services, 219 Cal. App. 4th 1052, 1062 (2013); Pfeifer v. Countrywide Home Loans, Inc., 211 Cal. App. 4th 1250, 1280-81 (2012). Therefore, it DENIES, IN PART, Defendants’ motion to dismiss on this basis. 3 26 27 28 Plaintiff has argued, both in support of her motion for a temporary restraining order, and in opposition to the motion to dismiss, that the Court should follow Glaski. Accordingly, the Court accepts the allegation that the ALRP 2014-2 Trust was formed under New York law as true for purposes of resolving this motion. It has considered Plaintiff’s arguments at the hearing to determine whether Plaintiff should be granted leave to amend to allege that the ALRP 2014-2 Trust is governed by some other state law. 5 1 In Glaski, the court held that “a borrower can challenge an assignment of his or her note and deed of trust if the defect asserted would void the assignment.” Glaski, 218 Cal. App. 4th at 3 1095 (emphasis in original). In Yvanova, the California Supreme Court followed Glaski on the 4 limited issue of “whether a wrongful foreclosure plaintiff may challenge an assignment to the 5 foreclosing entity as void[,]” i.e. whether the borrower had “standing” to assert such a claim. 6 Yvanova, 62 Cal. 4th at 935; see also id. at 935-41. In this case, Plaintiff seeks to prevent the 7 foreclosure, which places this case in a different procedural posture than Yvanova and Glaski. 8 Some California courts have not “allow[ed] such preemptive suits” and have reasoned that it 9 ‘would result in the impermissible interjection of the courts into a nonjudicial scheme enacted by 10 the California Legislature.” Saterbak v. JPMorgan Chase Bank, N.A., 245 Cal. App. 4th 808, 814 11 United States District Court Northern District of California 2 (2016) (quoting Jenkins v. JP Morgan Chase Bank, N.A., 216 Cal. App. 4th 497, 513 (2013), 12 disapproved of on other grounds by Yvanova, 64 Cal. 4th at 939 n.13). 13 Indeed, in Yvanova, the California Supreme Court stated that its “ruling … is a narrow one. 14 We hold only that a borrower who has suffered a nonjudicial foreclosure does not lack standing to 15 sue for wrongful foreclosure merely because he or she was in default on the loan and was not a 16 party to the challenged assignment.” 62 Cal. 4th at 924. The Yvanova court did not “address the 17 distinct question of whether, or under what circumstances, a borrower may bring an action for 18 injunctive or declaratory relief to prevent a foreclosure sale from going forward.” Id. at 934-35. 19 Two of this Court’s colleagues recently predicted that the California Supreme Court would 20 be likely to limit a bar on pre-foreclosure suits only to plaintiffs who lack a specific factual basis 21 for asserting that the foreclosing party lacks authority to do so. See Powell v. Wells Fargo Home 22 Mortgage, No. 14-cv-04248-MEJ, 2016 WL 1718189, at *8 (N.D. Cal. Apr. 29, 2016); Lundy v. 23 Selene Finance, L.P., No. 15-cv-05676-JST, 2016 WL 1059423, at *13 (N.D. Cal. Mar. 17, 24 2016)). In the Powell case, the court found “Judge Tigar’s analysis of this issue and ultimate 25 conclusion well-reasoned[.]” Powell, 2016 WL 1718189, at *8. The Court will not repeat Judge 26 27 28 6 1 Tigar’s lengthy analysis of the issue, but it too finds it well-reasoned and persuasive.4 Therefore, 2 for the reasons articulated in Lundy, the Court rejects Defendants’ argument that a plaintiff does 3 not have standing to assert a claim for wrongful foreclosure based on alleged defects in the 4 assignment, simply because the trustee’s sale has not yet occurred. As Judge Tigar stated, to impose a bar on such claims “even if a plaintiff offers plausible 6 support for the claim that the entity foreclosing on her property lacks authority to do so,” would 7 lead to a situation where a plaintiff must “sit by idly until an allegedly improper foreclosure sale 8 was completed before bringing her otherwise valid challenge in court.” Lundy, 2016 WL 9 1059423, at *13. Rather, the Court will examine whether Plaintiff has alleged a specific factual 10 basis from which the Court could find the assignment to the ALRP 2014-2 Trust was void, such 11 United States District Court Northern District of California 5 that it lacked the authority to foreclose. The Court begins with the allegedly late assignment, and 12 it discusses her subsidiary theories in the following sections. Plaintiff contends that that the assignment to the ARLP 2014-2 Trust is void, because it 13 14 was made after the closing date set forth in the PSA. Plaintiff again relies on Glaski, in which the 15 court concluded that an attempt to transfer a loan after the trust’s closing date would be a void 16 transaction under New York law. Id. at 1096-97 (citing, inter alia, Wells Fargo Bank, N.A. v. 17 Erobobo, 39 Misc. 3d 1220(A), 2013 WL 1831799, slip. op. p. 8 (April 29, 2013)). The 18 California Supreme Court has not weighed in on this issue.5 However, in Saterbak, supra, the 19 court found that an assignment to a securitized trust that is made after the closing date is “merely 20 voidable.” Saterbak, 245 Cal. App. 4th at 815. In rejecting the Glaski court’s opinion on this 21 issue, the Saterbak court noted that the Erobobo case, on which the Glaski court relied had been 22 23 24 25 26 27 4 The California Supreme Court also granted review in two cases which address preforeclosure challenges to alleged deficiencies in an assignment of the deed of trust and stayed briefing pending its ruling in Yvanova. See Mendoza v. JPMorgan Chase Bank, 337 P.3d 493 (Cal. 2014); Keshtgar v. U.S. Bank, 334 P.3d 686 (Cal. 2014). On April 27, 2016, the California Supreme Court transferred the Mendoza and Keshtgar cases to the Courts of Appeal and directed those courts to vacate and reconsider their decisions in light of Yvanova. See Mendoza v. JPMorgan Chase Bank, 368 P.3d 921 (Cal. 2016); Keshtgar v. U.S. Bank, 368 P.3d 921 (Cal. 2016). 5 28 The Yvanova court expressly stated that it expressed no opinion on that issue. Id. at 940- 41. 7 1 overturned. Id. at 815 n.5. 2 The Second Circuit also criticized the Erobobo case, and it stated that the “weight of New 3 York authority is contrary to plaintiff’s contention that any failure to comply with the terms of the 4 PSAs rendered defendant’s acquisition of plaintiffs’ loans and mortgages void as a matter of trust 5 law.” Rajamin v. Deutsche Bank Nat. Trust Co., 757 F.3d 79, 88 (2nd Cir. 2014). The Ninth 6 Circuit recently followed Rajamin and held that “an act in violation of a trust agreement is 7 voidable – not void – under New York law[.].” Morgan v. Aurora Loan Services, LLC, -- Fed. 8 Appx. --, 2016 WL 1179733, at *2 (9th Cir. Mar. 28, 2016) (citing Rajamin, 757 F.3d at 87-90). 9 In light of the Ninth Circuit’s opinion in Morgan, the Court concludes that Plaintiff fails to state a claim based on the allegedly late assignment. Cf. Hills v. Mortgage Electronic Registration 11 United States District Court Northern District of California 10 System, Inc., No. 15-cv-05108-EMC, 2016 WL 454093, at *6 (N.D. Cal. Feb. 5, 2016) (noting 12 general rule that there is no preemptive right to determine standing to foreclose, and finding 13 plaintiff did not allege a specific factual basis to avoid that rule, where plaintiff alleged assignment 14 was made after closing date of trust, because plaintiff only alleged a “technical” defect and did not 15 allege facts demonstrating that “the foreclosing party was not the real owner of the note”). 16 The Court has considered Plaintiff’s responses to the Court’s questions and her argument 17 at the hearing. It also has considered her request for judicial notice, filed on June 2, 2016, to 18 determine whether it should grant leave to amend. The Court concludes that Plaintiff could not 19 amend this aspect of her wrongful foreclosure claim without contradicting earlier allegations or 20 running afoul of her obligations under Federal Rule of Civil Procedure Rule 11. 21 22 23 24 Accordingly, the Court grants, in part, Defendants’ motion to dismiss on this basis, and it finds it would be futile to grant Plaintiff leave to amend. b. Robo-Signing. Plaintiff also alleges that the ARLP 2014-2 Trust lacked authority to foreclose, because 25 Mr. Kamyabi was a robo-signer who lacked legal authority to make the assignment of the Deed of 26 Trust, because he was not an agent of MERS. (Compl. ¶ 17.) Although there are no facts in the 27 Complaint to support that allegation, Plaintiff relies on the Property Report, which includes a 28 document that suggests that Mr. Kamyabi worked for BAC, not MERS. However, that document 8 1 also does not contain any facts to support its assertions. The Court finds that these allegations are 2 too conclusory to support a theory that Mr. Kamyabi was a robo-signer.6 Even if the allegations were sufficient, the Court would still dismiss the claim. Prior to the 3 4 California Supreme Court’s ruling in Yvanova, courts consistently found that a plaintiff lacks 5 standing to contest the assignment based on allegations of robo-signing. See, e.g., Pratap v. Wells 6 Fargo Bank, N.A., 63 F. Supp. 3d 1101, 1109 (N.D. Cal. 2014); Maynard v. Wells Fargo Bank, 7 N.A., No. 12-cv-1435-AJB, 2013 WL 4883202, at *9 (S.D. Cal. Sept. 11, 2013); Carollo v. 8 Vericrest Financial, Inc., No. 11-cv-4767-YGR, 2012 WL 4343816, at *3 (N.D. Cal. Sept. 21, 9 2012). To the extent those cases have been undermined by Yvanova on the issue of standing, the alleged defect would only render the assignment voidable, rather than void. See Pratap, 63 F. 11 United States District Court Northern District of California 10 Supp. 3d at 1109. Accordingly, the Court grants, in part, Defendants’ motion to dismiss on this basis. In 12 13 addition, the Court concludes that it would be futile to grant Plaintiff leave to amend to the extent 14 the wrongful foreclosure claim is premised on the allegations of robo-signing. 15 c. Improper Substitution of Trustee. Plaintiff also supports her claim for wrongful foreclosure on the theory that Western 16 17 Progressive had not been substituted in as Trustee at the time it recorded the Notice of Default in 18 October 2015. (Compl. ¶¶ 24-25.) In opposition to the motion for a temporary restraining order, 19 Defendants submitted a Substitution of Trustee. Defendants requested, and were granted leave to 20 incorporate the document and argument on its effect into the motion to dismiss. (Docket No. 24, 21 Motion to Dismiss at 1:16-22.) That document shows Western Progressive was substituted as 22 Trustee on April 16, 2015. The document was recorded on June 12, 2015, well before the Notice 23 of Default was recorded. (Docket No. 15-1.)7 24 6 25 26 27 To the extent Plaintiff seeks to allege a violation of California’s Homeowners Bill of Rights (“HBOR”), which includes provisions that prohibit the practice of robo-signing, HBOR’s provisions did not go into effect until January 1, 2013. See Cal. Civ. Code § 2924.17. Courts have found that the statute does not apply retroactively. See, e.g., Powell, 2016 WL 1718189, at *9. Thus, any attempt to amend to include such a claim would be futile. 7 28 Defendants ask the Court to take judicial notice of that document. That request is GRANTED. 9 Accordingly, the Court grants, in part, Defendant’s motion to dismiss on this basis. In 1 2 addition, the Court finds that it would be futile to grant Plaintiff leave to amend the wrongful 3 foreclosure claim to the extent it is premised on these allegations. 4 d. Gap in Chain of Title. Plaintiff also premises her claims for wrongful foreclosure on the theory that there is a gap 5 6 in the chain of title because there was never an assignment from the ALRP Trust 3 to the ARLP 7 Trust 4. (See Compl. ¶¶ 15-22.) Plaintiff has attached a number of documents to her Complaint. 8 Those documents include a letter from Ocwen to Plaintiff which states that a corrective 9 assignment of the Deed of Trust was executed whereby BofA transferred its interest in the Deed of Trust to Christiana Trust as trustee of ALRP Trust 4. (Id. ¶ 23, Ex. H at ECF pp 37-39.) In 11 United States District Court Northern District of California 10 addition, the Property Report also makes reference to an assignment to ALRP Trust 4. (Property 12 Report at p. 35.) These documents, contradict Plaintiff’s allegations that there is a gap in the chain 13 of title. 14 Accordingly, the Court grants, in part, Defendant’s motion to dismiss the wrongful 15 foreclosure claim to the extent it is based on the allegations of a gap in the chain of title. In 16 addition, the Court finds that it would be futile to grant Plaintiff leave to amend the wrongful 17 foreclosure claim to the extent it is premised on these allegations. 18 2. 19 In order to state a claim for slander of title, Plaintiff must allege: “(1) a publication, (2) Slander of Title. 20 which is without privilege or justification, (3) which is false, and (4) which causes direct and 21 immediate pecuniary loss.” Manhattan Loft, LLC v. Mercury Liquors, Inc., 173 Cal. App. 4th 22 1040, 1051 (2009). Plaintiff bases this claim on the same allegations and theories that support her 23 claim for wrongful foreclosure. For each of the reasons set forth above, and assuming for the sake 24 of argument, that Plaintiff set forth sufficient facts to show that Mr. Kamyabi was a “robo-signer,” 25 the Court dismisses the slander of title claim. 26 In addition, the Court concludes that Plaintiff has failed to allege facts to satisfy the second 27 28 10 1 element of the claim. A publication is privileged when it is made “[i]n a communication, without 2 malice, to a person interested therein … by one who is also interested.” Cal. Civ. Code § 47(c)(1). 3 Non-judicial foreclosure documents fall within the scope of this privilege. See Cal. Civ. Code § 4 2924(d); see also Ogilvie v. Select Portfolio Serv’g, No. 12-cv-01654-DMR, 2012 WL 3010986, 5 at *3 (N.D. Cal. July 23, 2012) (collecting cases). Plaintiff concedes that point in her opposition 6 to the motion to dismiss, but she contends that she has sufficiently alleged that Defendants acted in 7 reckless disregard of the truth. The Court disagrees. Plaintiff has done no more than parrot the 8 statutory language defining the term malice. This is no more than a bare legal conclusion, 9 couched as fact, and is insufficient under Twombly to state a claim. Cf. Simmons, 2016 WL 10 192517, at *7 (concluding plaintiff’s allegations of malice were conclusory). Accordingly, the Court concludes that Plaintiff has not stated a claim for slander of title. United States District Court Northern District of California 11 12 For the reasons articulated in connection with the wrongful foreclosure claim, the Court also 13 concludes that that it would be futile to grant Plaintiff leave to amend this claim. 14 3. 15 In order to state a claim under RESPA, a plaintiff must allege facts showing a defendant 16 violated a provision of RESPA and that the plaintiff suffered “actual damages . . . as a result” of 17 the defendant’s failure to comply with that provision.8 12 U.S.C. § 2605(f); see also Rosenfeld v. 18 JPMorgan Chase Bank, 732 F. Supp. 2d 952, 967 (N.D. Cal. 2010). Plaintiff’s RESPA claim is 19 not a model of clarity. For example, Plaintiff seems to premise this claim on the fact that the 20 assignment of her loan was made after the closing date of the ALRP 2014-2 Trust. (Compl. ¶¶ 65- 21 66; Opp. Br. at 18:3-6.) To the extent this claim is premised on that theory, the Court dismisses it 22 for the same reasons it has dismissed the wrongful foreclosure and slander of title claims. The RESPA Claim. 23 Plaintiff also refers to responses to “qualified written requests.” (Compl. ¶ 67.) However, 24 those responses are alleged to have been provided by an entity that is not a defendant, and Plaintiff 25 26 27 28 8 Although Section 2605(f) “does not explicitly set this out as a pleading standard, a number of courts have read the statute as requiring a showing of pecuniary damages in order to state a claim,” and they have construed that requirement liberally. Allen v. United Fin. Mortgage Corp., 660 F. Supp. 2d 1089, 1097 (N.D. Cal. 2009); see also Lal v. American Home Servicing, Inc., 680 F. Supp. 2d 1218, 1223 (E.D. Cal. 2010). 11 1 has not alleged that she has made a qua s d s alified writte request to one of the e en o existing defe endants. 2 Pla aintiff does allege that, when Ocwen took over s ervicing her loan in 2012, it failed to timely a w n r o 3 not her of th fact.9 (Co tify hat ompl. ¶¶ 23, 69.) Howe , ever, the statu of limita ute ations for a R RESPA 4 cla is three years, and Pl aim y laintiff has not alleged th the statut of limitati n hat te ions is subject to tolling. 5 12 U.S.C. § 26 614. The Cou conclude Plaintiff fa to allege facts to sta claim for alleged urt es fails e ate 6 vio olations of RESPA. R Accord dingly, the Court grants, in part, Defe endant’s mot tion to dism miss. At the h hearing on 7 8 the motion to dismiss, Plain stated that she does not intend t pursue the RESPA cla e d ntiff t s to e aim. 9 Ac ccordingly, th Court dismisses that claim withou leave to a he c ut amend. CONCLU USION 10 United States District Court Northern District of California 11 For the foregoing re easons, the Court GRAN Defend C NTS dants’ motion to dismiss, without n 12 lea to amend In light of this ruling, the Court D ave d. f DENIES, AS MOOT, Pla aintiff’s mot tion for a 13 tem mporary restr raining order The Cour shall issue a separate judgment, an the Clerk shall close r. rt e nd 14 the file. e IT IS SO ORDER S RED. 15 16 Da ated: June 3, 2016 17 18 JE EFFREY S. W WHITE Un nited States D District Judg ge 19 20 21 22 23 24 25 26 27 9 28 See 12 U.S.C. § 260 05(c)(1)-(2). . 12 2