Ha v. Bank of America , N.A. et al, No. 5:2014cv00120 - Document 66 (N.D. Cal. 2014)

Court Description: ORDER GRANTING MOTION TO DISMISS, BANA thus is dismissed from the case. by Magistrate Judge Paul Singh Grewal granting 57 (psglc2, COURT STAFF) (Filed on 12/8/2014) Modified on 12/8/2014 (cv, COURT STAFF).

Download PDF
Ha v. Bank of America , N.A. et al Doc. 66 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 SAN JOSE DIVISION United States District Court For the Northern District of California 10 11 MINA HA, 12 Plaintiff, v. 13 14 BANK OF AMERICA, N.A., et al. Defendants. 15 16 17 ) ) ) ) ) ) ) ) ) Case No. 5:14-cv-00120-PSG ORDER GRANTING MOTION TO DISMISS (Re: Docket No. 57) For the third time, this court considers a motion to dismiss filed by Defendant Bank of America, N.A. This court has twice dismissed Plaintiff Mina Ha’s claims against BANA. 1 Once 18 again, Ha has failed to allege facts sufficient to support her claims of fraud and unfair business 19 20 21 practices. Once again, the court GRANTS BANA’s motion to dismiss, this time without leave to amend. I. 22 Over four complaints in the past year, Ha has asserted various claims against BANA, Bank 23 24 of New York Mellon and Resurgent Capital Service, L.P. 2 Because this court has previously set 25 26 1 27 2 28 See Docket Nos. 33, 55. Pursuant to the parties’ stipulation, the court stayed Ha’s claims against BNY Mellon and Resurgent pending a decision on Ha’s loan modification application. See Docket No. 24. 1 Case No. 5:14-cv-00120-PSG ORDER GRANTING MOTION TO DISMISS Dockets.Justia.com 1 out the facts of this case in substantial detail, 3 the court will proceed directly to the merits of the 2 motion. For the sake of clarity, the court charts the amended pleadings and asserted claims as 3 follows: 4 Date DN Complaint Original Complaint 1. 2. 3. 4. Violation of California Civil Code §§ 2924 and 2923.5 Violation of California Civil Code §§ 2923.6 and 2923.7 Breach of the Implied Covenant of Good Faith and Fair Dealing Unfair Competition First Amended Complaint 1. 2. 3. 4. California Civil Code §§ 2924 and 2923.5 California Civil Code §§ 2923.6 and 2923.7 Breach of the Implied Covenant of Good Faith and Fair Dealing Unfair Competition Second Amended Complaint 1. 2. 3. 4. 5. 6. 7. 8. Violation of California Civil Code § 2924 Violation of California Civil Code § 2923.5 Violation of California Civil Code § 2924g Violation of California Civil Code § 2923.7 Fraud Negligent Misrepresentation Breach of the Implied Covenant of Good Faith and Fair Dealing Unfair Competition Third Amended Complaint 1. 2. 3. 4. Violation of California Civil Code § 2924g Violation of California Civil Code § 2923.7 Fraud Unfair Competition 5 6 1.08.14 1 7 8 2.24.14 13 9 United States District Court For the Northern District of California 10 11 12 7.16.14 36 Claims Raised 13 14 15 8.05.14 56 16 17 II. 18 19 This court has subject matter jurisdiction over these claims pursuant to 28 U.S.C. §§ 1332. The court has supplemental jurisdiction over the pendant state law claims pursuant to 28 U.S.C. 20 § 1367. The parties further consented to the jurisdiction of the undersigned magistrate judge under 21 22 28 U.S.C. §636(c) and Fed. R. Civ. P. 72(a). As a preliminary matter, BANA requests judicial notice of several documents, including 23 24 various deeds of trust, notices of default, and notices of trustee’s sale. 4 The court may take judicial 25 notice of a “fact that is not subject to reasonable dispute because it is generally known” or “can be 26 3 See Docket No. 55 at 2-8. 4 See Docket No. 58. 27 28 2 Case No. 5:14-cv-00120-PSG ORDER GRANTING MOTION TO DISMISS 1 accurately and readily determined from sources whose accuracy cannot reasonably be 2 questioned.” 5 Because these documents are in the public record and are not subject to reasonable 3 dispute, the court takes judicial notice of them. 4 5 6 7 8 9 At this stage of the case, the court must accept all material allegations in the complaint as true and construe them in the light most favorable to the non-moving party. 6 The court’s review is limited to the face of the complaint, materials incorporated into the complaint by reference, and matters of which the court may take judicial notice. 7 However, the court need not accept as true allegations that are conclusory, unwarranted deductions of fact, or unreasonable inferences. 8 III. United States District Court For the Northern District of California 10 Under Fed. R. Civ. P. 12(b)(6), “dismissal can be based on the lack of a cognizable legal 11 12 theory or the absence of sufficient facts alleged under a cognizable legal theory.” 9 If a plaintiff 13 fails to proffer “enough facts to state a claim to relief that is plausible on its face,” the complaint 14 may be dismissed for failure to state a claim upon which relief may be granted. 10 A claim is 15 facially plausible “when the pleaded factual content allows the court to draw the reasonable 16 17 18 inference that the defendant is liable for the misconduct alleged.” 11 Against these standards, neither of Ha’s two claims against BANA—fraud and unfair business practices—pass muster. First, Ha renews her fraud claim against BANA. She claims that “beginning in or around 19 20 September 2008 and continuing through February 2012, [BANA] made several misrepresentations 21 5 Fed. R. Evid. 201(b). 22 6 See Metzler Inv. GMBH v. Corinthian Colls., Inc., 540 F.3d 1049, 1061 (9th Cir. 2008). 23 7 See id. 24 8 25 See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001); see also Twombly, 550 U.S. at 561 (“a wholly conclusory statement of [a] claim” will not survive a motion to dismiss). 9 26 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 10 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). 11 Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). 27 28 3 Case No. 5:14-cv-00120-PSG ORDER GRANTING MOTION TO DISMISS 1 through various representatives, including, but not limited to, an individual who identified herself, 2 in-person, only as Alise and who identified herself as a [BANA] employee with the Customer 3 Assistance Center in August 2011.” 12 4 5 6 7 8 9 Ha’s fraud claim appears to have a statute of limitations problem. Fraud claims are subject to a three-year statute of limitations.13 While it may not have been clear to Ha that she had the makings of a lawsuit beginning in 2008, at the very least, she would have been on notice by May 1, 2009 when BANA recorded a notice of default against her property. 14 Even calculating from that later date, Ha would have had to bring her fraud claim by April 30, 2012 in order for her claim to United States District Court For the Northern District of California 10 be timely. She instead filed this case on January 8, 2014 and brought her fraud claim for the first 11 time on April 29, 2014, missing the mark by nearly two years. 12 13 But even if Ha’s fraud claim had been brought in a timely manner, her claim would still not pass muster under Rule 9(b)’s heightened pleading standard. “Under California law, the 14 indispensable elements of a fraud claim include a false representation, knowledge of its falsity, 15 16 intent to defraud, justifiable reliance, and damages.” 15 The Ninth Circuit requires that “the pleader 17 . . . state the time, place, and specific content of the false representations as well as the identities of 18 the parties to the misrepresentation” in order to allege a claim. 16 Even though the court held Ha’s 19 fraud allegations insufficiently pleaded in her SAC, she does not appear to have remedied the 20 21 22 12 See Docket No. 56 at ¶ 47. 13 See Cal. Code Civ. Proc. § 338(d). 14 See Docket No. 58 at Exh. B. 23 24 25 15 26 Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1105 (9th Cir. 2003) (layered quotations and citations omitted). 27 16 28 Schreiber Distrib. Co. v. Serv-Well Furniture Co., Inc., 806 F.2d 1393, 1401 (9th Cir. 1986) (citing Semegen v. Weidner, 780 F.2d 727, 731 (9th Cir. 1985)). 4 Case No. 5:14-cv-00120-PSG ORDER GRANTING MOTION TO DISMISS 1 problem. Ha has stated what she alleges the false representation to be, 17 but she has failed to allege 2 with any particularity that these various employees knew that their representation was false or that 3 they intended to mislead her. And as to justifiable reliance, Ha claims that she relied on Alise’s 4 statements counseling her to continue defaulting on her loans, but in fact, Ha had defaulted on her 5 payments long before Alise or any other BANA representative advised her against reinstating her 6 loan. 18 7 But all else aside, Ha has failed to allege any tangible damages to satisfy a fraud claim. 19 In 8 9 her complaint, she alleges “damage to her credit, excessive late fees and charges, loss of a United States District Court For the Northern District of California 10 permanent loan modification and the imminent loss of her Property.” 20 The damage to Ha’s credit 11 is speculative at best. As pleaded, any late fees and charges were incurred as a result of her own 12 failure to make mortgage payments—not as a result of any fraudulent behavior on the part of 13 14 BANA. Similarly, the loss of a loan modification cannot be alleged as fraud-based damages because BANA is not required to approve a loan modification. 21 The imminent loss of her 15 16 property also is not a tangible harm. In fact, while a sale date was previously set, it was postponed 17 indefinitely, and there is no indication that BANA intends to reinstate the sale. Ha still alleges that 18 she is the owner of her property. 22 She cannot simultaneously allege that she owns it and that its 19 imminent loss has damaged her. 20 21 22 23 24 17 “[I]t was [BANA’s] policy not to initiate foreclosure proceedings against any borrowers as long as they were in the process of applying for a loan modification or were being reviewed for a loan modification.” Docket No. 56 at ¶ 47. 18 Ha defaulted on her payments beginning on June 1, 2008, several months before she contacted BANA (September 2008). See Docket No. 58 at Exh. B. 19 See Cal. Civ. Code § 1709; Fladeboe v. Am. Isuzu Motors, Inc., 150 Cal. App. 4th 42, 66 (2007). 20 Docket No. 56 at ¶ 51. 21 See Mabry v. Superior Court, 185 Cal. App. 4th 208, 214 (2010). 22 See Docket No. 56 at ¶ 4. 25 26 27 28 5 Case No. 5:14-cv-00120-PSG ORDER GRANTING MOTION TO DISMISS Second, Ha brings an unfair business practices claim under California’s unfair competition 1 2 law. Ha alleges that BANA’s “inducement of [her] detrimental reliance through false promises 3 constitutes unlawful business practices under [the UCL].” 23 In order for a plaintiff to establish 4 standing under the UCL, she must allege an “injury in fact” and that she has “lost money or 5 property as a result of such unfair competitions.” 24 As discussed above, Ha has failed to establish 6 sufficient injury in her complaint. While she alleges damages in the form of “attorneys’ fees and 7 8 9 costs to save her home, the loss of her home if it is sold, a loss of reputation and goodwill, destruction of credit, severe emotional distress, loss of appetite, frustration, fear, anger, United States District Court For the Northern District of California 10 helplessness, nervousness, anxiety, sleeplessness, sadness, and depression,” 25 none of these 11 constitute damages under the UCL. 26 She has not lost her property and she fails to particularize 12 any monetary loss to render it more than mere speculation. 13 But even if Ha could establish standing, she has failed to allege any unlawful, unfair or 14 fraudulent predicate acts upon which a claim might be grounded. The UCL prohibits unfair 15 16 competition, including, inter alia, “any unlawful, unfair or fraudulent business act.” 27 The only 17 predicate claim that Ha has alleged—her fraud claim—has already failed, dooming her UCL claim 18 as well. 19 20 21 23 See id. at ¶ 59. 22 24 Bus. & Prof. Code § 17204. 23 25 Docket No. 56 at ¶ 60. 24 26 25 26 27 See Cordon v. Wachovia Mortg., 776 F. Supp. 2d 1029, 1039 (N.D. Cal. 2011) (finding that incurring attorney’s fees is insufficient to substantiate a UCL claim because otherwise “a private plaintiff bringing a UCL claim automatically would have standing merely by filing suit”); see also Jenkins v. JPMorgan Chase Bank, N.A., 216 Cal. App. 4th 497, 523 (2013) (finding lack of standing under UCL where a plaintiff cannot attribute alleged harm to the wrongful actions of a defendant). 27 28 Cal. Bus. & Prof. Code § 17200. 6 Case No. 5:14-cv-00120-PSG ORDER GRANTING MOTION TO DISMISS

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.