Felipe Gonzalez v. J.P. Morgan Chase Bank

• Court: District Court, C.D. California
• Decided: January 9, 2020
• Docket: 2:17-cv-09310
• Status: Unknown

Opinion

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8 United States District Court 9 Central District of California

11 FELIPE GONZALEZ, Case № 2:17-CV-09310-ODW (ASx)

12 Plaintiff, ORDER GRANTING DEFENDANT 13 v. RUSHMORE LOAN 14 J.P. MORGAN CHASE BANK N.A., et MANAGEMENT SERVICES’ 15 al., MOTION TO DISMISS FIRST

Defendants. AMENDED COMPLAINT [82] 16

17 I. INTRODUCTION 18 This matter comes before the Court on Defendant Rushmore Loan Management 19 Services’ Motion to Dismiss Plaintiff’s First Amended Complaint (the “Motion”). 20 (ECF No. 82.) For the reasons that follow, the Court GRANTS Defendant’s Motion.1 21 II. FACTUAL BACKGROUND 22 The Court previously set forth the pertinent facts in its October 8, 2019 Order 23 (“October Order”), (ECF No. 85), granting motions to dismiss filed by Defendants 24 JPMorgan Chase Bank, N.A. (“Chase”), Federal National Mortgage Association’s 25 (“Fannie Mae”), and NDeX West LCC (“NDeX”); thus, the Court shall only repeat 26 27

28 1 Having carefully considered the papers filed in connection with the Motion, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. 1 the facts relevant to Defendant Rushmore Loan Management Services’ (“Rushmore” 2 or “Defendant”) Motion here. 3 On July 20, 2007, Plaintiff Felipe Gonzalez (“Gonzalez”) purchased the real 4 property located at 14229 Tiara Street, Los Angeles, California 91410 (“Property”) 5 and signed a deed of trust in the amount of $387,750.00 with Chase (“Loan”). (First 6 Amended Complaint (“FAC”) ¶ 11, ECF No. 60.) In September 2010, Chase sold the 7 Property to Fannie Mae in a foreclosure sale. (FAC ¶ 24.) In the summer of 2015, 8 Chase transferred its loan servicing duties of Gonzalez’s home mortgage loan to 9 Rushmore. (FAC ¶ 31.) Gonzalez alleges “Rushmore [then placed] a lock box on 10 [his] home” and informed him that the lockbox would remain since “[Rushmore] had 11 rights to the home” (“2015 lockbox incident”). (FAC ¶ 32.) Gonzalez further alleges 12 that it was unclear who was overseeing the Loan at the time because although 13 Rushmore began to service the Loan in 2015, Gonzalez also “continued to be solicited 14 for [loan] modifications from Chase.” (FAC ¶¶ 30–31.) 15 In February 2016, Fannie Mae assigned the deed of trust to a third party. (See 16 Defs.’ Req. for Judicial Notice (“RJN”), Ex. D Assignment of Deed of Trust (“2016 17 Assignment”), ECF No. 65-4; FAC ¶ 31.) Thereafter, in May 2016, Gonzalez alleges 18 that “two women appeared at the [P]roperty, claim[ing] to represent the bank,” and 19 demanded entry, which Gonzalez denied (“2016 bank representative incident”). (FAC 20 ¶ 33.) Gonzalez alleges the two individuals trespassed anyway and told Gonzalez “he 21 could not make changes to the [P]roperty.” (Id.) 22 On September 20, 2018, Gonzalez filed his First Amended Complaint (“FAC”) 23 against Defendants Chase, Fannie Mae, NDeX, and Rushmore. (See generally FAC.) 24 Gonzalez alleges that each of his thirteen cause of actions are tied to Defendants’ 25 mismanagement of his Loan and violations of his rights in the Property. (FAC ¶¶ 10- 26 13, 37–132.) On October 8, 2019, the Court granted motions to dismiss filed by 27 Chase, Fannie Mae, and NDeX on res judicata grounds and because Gonzalez failed 28 to plead sufficient facts to show Chase, Fannie Mae, or NDeX held a continued 1 interest in the Loan or the Property after 2015 and 2016. The Court now considers 2 Defendant Rushmore’s motion to dismiss. 3 III. LEGAL STANDARD 4 A court may dismiss a complaint under Rule 12(b)(6) for lack of a cognizable 5 legal theory or insufficient facts pleaded to support an otherwise cognizable legal 6 theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). To 7 survive a dismissal motion, a complaint need only satisfy the minimal notice pleading 8 requirements of Rule 8(a)(2)—a short and plain statement of the claim. Porter v. 9 Jones, 319 F.3d 483, 494 (9th Cir. 2003). The factual “allegations must be enough to 10 raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 11 U.S. 544, 555 (2007). That is, the complaint must “contain sufficient factual matter, 12 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. 13 Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). 14 The determination of whether a complaint satisfies the plausibility standard is a 15 “context-specific task that requires the reviewing court to draw on its judicial 16 experience and common sense.” Id. at 679. A court is generally limited to the 17 pleadings and must construe all “factual allegations set forth in the complaint . . . as 18 true and . . . in the light most favorable” to the plaintiff. Lee v. City of Los Angeles, 19 250 F.3d 668, 679 (9th Cir. 2001). However, a court need not blindly accept 20 conclusory allegations, unwarranted deductions of fact, and unreasonable inferences. 21 Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). 22 Where a district court grants a motion to dismiss, it should generally provide 23 leave to amend unless it is clear the complaint could not be saved by any amendment. 24 See Fed. R. Civ. P. 15(a); Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 25 1025, 1031 (9th Cir. 2008). Leave to amend may be denied when “the court 26 determines that the allegation of other facts consistent with the challenged pleading 27 could not possibly cure the deficiency.” Schreiber Distrib. Co. v. Serv-Well Furniture 28 Co., 806 F.2d 1393, 1401 (9th Cir. 1986). Thus, leave to amend “is properly 1 denied . . . if amendment would be futile.” Carrico v. City and Cty. of San Francisco, 2 656 F.3d 1002, 1008 (9th Cir. 2011). 3 IV. DISCUSSION 4 As the Court discussed in its October Order, while Gonzalez’s claims arising 5 from alleged incidents dating between 2007 and 2010 involving the Loan and the 6 Property are barred by res judicata, Gonzalez’s claims arising from the 2015 lockbox 7 incident and the 2016 bank representative incident are not similarly barred. Still, as 8 the Court previously determined, Gonzalez fails to sufficiently allege that Rushmore 9 acted as an agent of Chase and Fannie Mae. See Swartz v. KPMG LLP, 476 F.3d 756, 10 765 (9th Cir. 2007) (affirming dismissal where complaint merely asserted that one 11 defendant was agent of another defendant without any stated factual basis). 12 Therefore, in order to maintain an action against Rushmore, Gonzalez must 13 allege sufficient facts to hold Rushmore directly liable for his alleged injuries. 14 Rushmore moves to dismiss Gonzalez’s nine claims against it, primarily arguing 15 Gonzalez’s allegations lack facial plausibility because they depend on unsupported 16 facts and unfounded legal conclusions. For the reasons that follow, the Court agrees 17 that Gonzalez’s FAC fails to allege a cognizable legal theory based on the 2015 and 18 2016 incidents. Accordingly, the Court dismisses all claims against Rushmore. 19 A. Quiet Title and Slander of Title (Sixth Cause of Action) 20 Gonzalez’s sixth cause of action seeks quiet title, alleging that no Defendant 21 holds any proper interest in the Property. (FAC ¶¶ 93-97.) 22 A complaint to quiet title must be verified and include: (1) a description of the 23 property; (2) the title of the plaintiff and the basis of the title; (3) the adverse claims to 24 the title; (4) the date as of which the determination is sought; and (5) a prayer for the 25 determination of the title of the plaintiff. California Code of Civil Procedure (“Cal. 26 Civ. Proc. Code”) § 761.020. A verified complaint is a signed complaint with the 27 plaintiff’s oath or affidavit stating that, to the best of his or her knowledge, all 28 information in the complaint is true and correct. Waldrop v. Wells Fargo Bank, N.A., 1 No. ED 16-cv-413-DMG (SPx), 2016 WL 7626145, at *9 (C.D. Cal. Oct. 11, 2016). 2 In California, “a mortgagor cannot quiet his title against the mortgagee without paying 3 the debt secured.” Briosos v. Wells Fargo Bank, 737 F. Supp. 2d 1018, 1032 (N.D. 4 Cal. 2010) (internal citation and quotation marks omitted). “Thus, to maintain a quiet 5 title claim, a plaintiff is required to allege tender of the proceeds of the loan at the 6 pleading stage.” Id. (alteration, internal citation, and quotation marks omitted). “The 7 cloud upon [a borrower’s] title persists until the debt is paid.” Aguilar v. Bocci, 39 8 Cal. App. 3d 475, 477 (1974). 9 Here, Gonzalez did not file a verified complaint, nor did Gonzalez allege that he 10 has tendered, or offered to tender, the full amount he has borrowed. Omissions such 11 as these are fatal to a quiet title claim. See Hamilton v. Bank of Blue Valley, 746 F. 12 Supp. 2d 1160, 1177 (E.D. Cal. 2010) (“[A] quiet title claim is doomed in the absence 13 of [plaintiff’s] tender of amounts owed.”). Thus, the Court dismisses Gonzalez’s quiet 14 title claim without leave to amend. 15 Gonzalez also asserts a slander of title claim, alleging “Chase’s original filings 16 and continued filings regarding the [P]roperty, in addition to the public records created 17 for the [Notice of Default (“NOD”) and Notice of Sale (“NOS”)] have slandered title.” 18 (FAC ¶ 95.) Gonzalez further alleges that “[w]hen Rushmore took over servicing they 19 believed he was post foreclosure as they put a lock box on the home to allow investors 20 to enter the [P]roperty.” (FAC ¶ 97.) 21 Under California law, a claim for slander of title contains the following 22 elements: “there must be a publication; the publication must be without privilege or 23 justification and thus with malice, express or implied; it must be false, either 24 knowingly so or made without regard to its truthfulness; and it must cause direct and 25 immediate pecuniary loss.” Howard v. Schaniel, 113 Cal. App. 3d 256, 263 (1980); 26 see Manhattan Loft, LLC v. Mercury Liquors, Inc., 173 Cal. App. 4th 1040, 1051 27 (2009). 28 Here, Gonzalez provides no specific facts tying Rushmore to any published 1 documents resulting in monetary damages. Instead, Gonzalez vaguely argues that 2 “[a]ny actions [Rushmore has] taken to cause the publication of information 3 suggesting that plaintiff is in default on his loan or that his [P]roperty is subject to 4 foreclosure constitutes a slander on plaintiff’s title.” (See Gonzalez’s Opp’n to 5 Rushmore’s Motion 6 (“Opp’n”), ECF No. 83.) With no factual support, the FAC’s 6 allegations are conclusory and fail to state a cognizable claim. Accordingly, 7 Gonzalez’s slander of title claim is dismissed without leave to amend. 8 B. Violation of TILA, RESPA, and HOEPA (Seventh Cause of Action) 9 The Truth in Lending Act (“TILA”) “requires creditors . . . to provide borrowers 10 with clear and accurate disclosures of [the] terms [of their loan, including] . . . finance 11 charges, annual percentage rates of interest, and the borrower’s rights.” Beach v. 12 Ocwen Fed. Bank, 523 U.S. 410, 412 (1998) (citing 15 U.S.C. §§ 1631, 1632, 1635, 13 1638). The Home Ownership and Equity Protection Act (“HOEPA”) is an amendment 14 of TILA and similarly prohibits creditors from “extending credit to consumers under 15 mortgages referred to in section [1602(aa)] based on the consumers’ collateral without 16 regard to the consumers’ repayment ability, including the consumers’ current and 17 expected income, current obligations, and employment.” 15 U.S.C. § 1639(h). 18 Although section 1602(aa) covers consumer credit transactions secured by a 19 consumer’s principal dwelling, it expressly excludes from HOEPA coverage of a 20 “residential mortgage transaction.” 15 U.S.C. § 1602(aa); 12 C.F.R. § 226.23(f)(1). 21 Residential mortgage transactions are defined by statute as “a transaction in which a 22 mortgage, deed of trust, purchase money security interest arising under an installment 23 sales contract, or equivalent consensual security interest is created or retained against 24 the consumer’s dwelling to finance the acquisition or initial construction of such 25 dwelling.” 15 U.S.C. § 1602(x). Gonzalez does not specify if he is requesting 26 damages, rescission or both under TILA and HOEPA. 27 Here, the TILA disclosure requirement was triggered in 2007 when Gonzalez 28 first obtained his mortgage. Once a mortgage contract has been signed, there are only 1 three circumstances that require new TILA disclosures: refinance, assumption, or 2 variable interest rate adjustment. Gonzalez does not allege that one of these three 3 circumstances applies here; rather, Gonzalez argues that “Rushmore may be liable for 4 Chase’s actions as a successor in interest to Chase.” (Opp’n 6.) But the case 5 Gonzalez relies on to support his theory of successor liability—Daniell v. Riverside 6 Partners I, L.P.—clearly stands for the opposite proposition. Daniell, 206 Cal. App. 7 4th 1292, 1300 (2012) (citations omitted) (“The general rule of successor nonliability 8 provides that where a corporation purchases, or otherwise acquires by transfer, the 9 assets of another corporation, the acquiring corporation does not assume the selling 10 corporation’s debts and liabilities.”) And Gonzalez offers no argument that an 11 exceptional circumstance requires the Court to impose successor liability on 12 Rushmore. Additionally, Gonzalez’s HOEPA claim fails on the merits because he 13 obtained a mortgage from Chase to finance his purchase of the Property. (FAC ¶ 11.) 14 The Loan was a transaction upon which a deed of trust was recorded, which qualifies 15 as a “residential mortgage transaction,” as defined by § 1602(x), and is exempt from 16 HOEPA. See 15 U.S.C. § 1602(aa); 12 C.F.R. § 226.23(f)(1); Kennedy v. World Sav. 17 Bank, FSB, No. 14-cv-05516-JSC, 2015 WL 1814634, at *11 (N.D. Cal. Apr. 21, 18 2015). Therefore, Gonzalez’s TILA and HOEPA claims must be dismissed without 19 leave to amend. 20 Moreover, the Real Estate Settlement Procedures Act (“RESPA”) requires 21 lenders and servicers to make certain communications to consumers during the 22 mortgage lending and modification process. See 12 U.S.C. § 2601 et seq. This 23 includes providing consumers with “notice of transfer for any assignment, sale, or 24 transfer of the servicing of the mortgage loan,” 12 C.F.R. § 1024.33(b)(1), and “notice 25 in writing” of the “servicer’s determination of which loss mitigation options . . . it will 26 offer to the borrower. . . .” 12 C.F.R. § 1024.41(c). Loan servicers are also required to 27 provide written responses to a borrower’s Qualified Written Request (“QWR”) for 28 information including the identity or contact information of the owner of the loan. See 1 12 U.S.C. § 2605(k)(1)(D). 2 Here, Gonzalez alleges that “[i]n 2014, and 2015 [he] continued to be solicited 3 for modifications from Chase . . . [which] were filled out and denied.” (FAC ¶ 30.) 4 Gonzalez further alleges in opposition to the Motion that Rushmore violated RESPA 5 by proceeding “with foreclosure activities in 2015” although “his modification 6 application was still pending in 2015.” (Opp’n 6.) However, such conclusory 7 allegations do not suffice. Gonzalez provides no specific facts regarding Rushmore’s 8 alleged RESPA violation making it unclear from the FAC whether Gonzalez’s 9 RESPA claim is based on Rushmore’s supposed failure to notify him of the mortgage 10 transfer, to process a complete loan modification application, or to respond to a 11 written request for information. Gonzalez also fails to allege any actual damages 12 stemming from Rushmore’s alleged RESPA violation. Accordingly, the Court 13 dismisses Gonzalez’s RESPA claim without leave to amend. 14 C. Intentional Infliction of Emotional Distress (Eighth Cause of Action) and 15 Negligent Infliction of Emotional Distress (Ninth Cause of Action) 16 Rushmore argues, and the Court agrees, that Gonzalez’s claims for intentional 17 infliction of emotional distress (“IIED”) or negligent infliction of emotional distress 18 (“NIED”) are time barred. (Mot. 18–19.) As a preliminary matter, these claims are 19 subject to a two-year statute of limitations under Cal. Civ. Proc. Code § 335.1. As 20 mentioned above, Gonzalez alleges the lockbox incident occurred in the summer of 21 2015 but he filed this suit on December 31, 2017—more than two years after the 22 lockbox incident allegedly occurred. (FAC ¶ 32.) Thus, any IIED or NIED claims 23 based on the lockbox incident are time-barred. See Cal. Civ. Proc. Code § 335.1 24 Therefore, the Motion is granted without leave to amend as to Gonzalez’s claim 25 for IIED or NIED. 26 D. Violation of HBOR (Tenth Cause of Action) 27 The California Homeowner Bill of Rights (“HBOR”) requires that a mortgage 28 servicer satisfy certain requirements before recording a notice of default. See Cal. 1 Civ. Proc. Code § 2923.5. These requirements include contacting the borrower in 2 person or by telephone to assess the borrower’s financial situation and to explore 3 alternatives to foreclosure. A notice of default recorded under section 2923.5 must 4 include a declaration that the mortgage servicer “has contacted the borrower, has tried 5 with due diligence to contact the borrower . . . or that no contact was required because 6 the individual did not meet the definition of ‘borrower.’” Cal. Civ. Proc. Code § 7 2923.5(b). 8 Gonzalez argues that “[D]efendants, including Rushmore, failed to comply with 9 section 2923.5 by not contacting him or sending him information as required by law, 10 prior to recording the NOD and the [Notice of Trustee Sale (“NOTS”)].” (Opp’n 7:8- 11 11.) Gonzalez alleges that Chase recorded a Notice of Default on January 13, 2009, a 12 Notice of Trustee’s Sale on August 9, 2010, a Notice of Sale on September 27, 2010, 13 and an additional Notice of Sale on October 6, 2010. (FAC ¶¶ 23, 27, 29, 44.) 14 However, Rushmore began servicing Gonzalez’s loan in 2015—long after these 15 documents were recorded—and thus cannot be held liable for failing to communicate 16 with Gonzalez regarding foreclosure alternatives prior to their recording. Gonzalez 17 vaguely alleges that “Rushmore may have filed a NOD” but Gonzalez is “unaware as 18 he has not been noticed nor has his counsel.” (FAC ¶ 36.) Mere conjecture cannot 19 save Gonzalez’s HBOR claim based on section 2923.5 to survive dismissal. 20 Gonzalez also argues Rushmore violated HBOR by engaging in dual-tracking 21 (i.e., simultaneously pushing the home through foreclosure while Gonzalez’s loan 22 modification application was pending), (Opp’n 6.), but Gonzalez’s dual-tracking claim 23 is factually deficient as well. 24 HBOR provides: “If a borrower submits a complete application for a first lien 25 loan modification offered by, or through, the borrower’s mortgage servicer, a 26 mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent shall not 27 record a notice of default or notice of sale, or conduct a trustee’s sale, while the 28 complete first lien loan modification application is pending.” Cal. Civ. Proc. Code § 1 2923.6(c). If a complete application has been submitted, a trustee may not conduct a 2 trustee’s sale until one of the following occurs: “(1) The mortgage servicer makes a 3 written determination that the borrower is not eligible for a first lien loan modification 4 . . . (2) The borrower does not accept an offered first lien loan modification within 14 5 days of the offer. (3) The borrower accepts a written first lien loan modification, but 6 defaults on, or otherwise breaches the borrower’s obligations under, the first lien loan 7 modification.” Cal. Civ. Proc. Code § 2923.6(c)(1)–(3). 8 In support of his dual-tracking claim, Gonzalez makes the conclusory assertion 9 that Rushmore proceeded “with foreclosure activities in 2015” although “his 10 modification application was still pending in 2015.” (Opp’n 6.) This simply 11 paraphrases the language of the statute; it provides no facts at all as to the specific 12 loan modification application that Gonzalez may have submitted to Rushmore or an 13 attempted foreclosure sale, and thus does not show how Rushmore violated section 14 2923.6. 15 For these reasons, the Court dismisses Gonzalez’s HBOR claims without leave 16 to amend. 17 E. Constitutional Violations (Eleventh Cause of Action) 18 Gonzalez’s eleventh cause of action alleges that Rushmore violated his right to 19 due process and equal protection under the Fourth and Fourteenth Amendments by 20 offering him a “subpar loan” based on “his ethnicity and disability,” and attempting to 21 foreclose on the Property without legal cause to do so. (FAC ¶¶ 32, 33, 120–125.) 22 The Court liberally construes these claims under 42 U.S.C. § 1983, which allows 23 individuals to sue government officials who violate their civil rights while acting 24 “under color of any statute, ordinance, regulation, custom, or usage, of any State.” 42 25 U.S.C. § 1983. To maintain a claim pursuant to § 1983, a plaintiff must establish: (1) 26 the deprivation of any rights, privileges or immunities secured by the Constitution or 27 federal law, (2) by a person acting under the color of state law. See West v. Atkins, 28 487 U.S. 42, 48 (1988); Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir. 2009). 1 Rushmore argues that Gonzalez fails to state cognizable constitutional claims 2 because he does not allege any state action. The Court agrees. Purely private conduct, 3 no matter how wrongful, is not covered under § 1983. See Ouzts v. Maryland Nat’l 4 Ins. Co., 505 F.2d 547, 559 (9th Cir. 1974). Gonzalez claims that Rushmore—a 5 private entity—proceeded with foreclosure activities in 2015 and 2016 by placing a 6 lockbox on the Property and declaring that the Property no longer belonged to him. 7 (FAC ¶¶ 32, 33.) The Ninth Circuit has held that there is no state action in 8 circumstances, like here, where there is no “overt official involvement.” Apao v. Bank 9 of N.Y., 324 F.3d 1091, 1094-95 (9th Cir. 2002) (holding that with respect to non- 10 judicial foreclosure procedures, there is no state action in either the availability of 11 such private remedies or their enforcement). Further, Gonzalez presents no facts 12 alleging Rushmore offered him subpar lending terms at any point since it began 13 servicing the Loan in 2015. 14 In sum, Gonzalez’s constitutional claims against Rushmore are inadequately 15 pled and are therefore subject to dismissal without leave to amend. 16 F. Violation of ADA (Twelfth Cause of Action) 17 Gonzalez states that he was “not disabled” when he purchased the Property but 18 somehow, he became “disabled and [now] needs surgery on his back.” (FAC ¶¶ 106, 19 128.) He alleges that his disability entitles him to some unspecified protections under 20 the Americans with Disabilities Act (ADA), which he claims Rushmore has never 21 “honored or considered” in servicing his Loan. (FAC ¶ 127.) These bare allegations 22 are clearly insufficient to state a viable ADA claim. In addition, Gonzalez does not 23 oppose Rushmore’s Motion on this issue. Thus, the Court will deem this claim 24 abandoned and dismisses it without leave to amend. See, e.g., Wooten v. Countrywide 25 Home Loans Inc., No. CIV S-11-1791 MCE DAD PS, 2012 WL 3463460, at *5 (E.D. 26 Cal. Feb. 1, 2012) (“[P]laintiff’s original complaint contains claims which plaintiff did 27 not address in responding to defendants’ motions . . . . A failure to oppose a 28 dispositive motion may be construed as abandoning the subject claims.”). 1 G. Violation of FDCPA (Thirteenth Cause of Action) 2 Gonzalez alleges that Rushmore violated the Fair Debt Collection Practices Act 3 (“FDCPA”) through its alleged foreclosure activities on the Property, including the 4 2015 lockbox incident and the 2016 bank representative incident. Rushmore argues 5 that Gonzalez’s FDCPA claim fails because the FDCPA does not apply to foreclosure 6 activities. 7 While certain sections of the FDCPA do not apply to foreclosure activities, 8 there can be no question that section 1692f(6) applies. That section provides that a 9 violation occurs by “[t]aking or threatening to take any nonjudicial action to effect 10 dispossession of disablement of property if . . . there is no present right to possession 11 of the property claimed as collateral through an enforceable security interest.” 15 12 U.S.C. § 1692f(6). Indeed, the Ninth Circuit has held that for purposes of section 13 1692f(6), a debt collector includes “a person enforcing a security interest.” Dowers v. 14 Nationstar Mortgage, LLC, 852 F.3d 964, 971 (9th Cir. 2017). Therefore, section 15 1692f(6) could, in theory, apply to Rushmore’s actions involving the alleged 16 foreclosure attempt. 17 However, even if section 1692f(6) applies to foreclosure activities, Gonzalez 18 fails to sufficiently state a claim that Rushmore did not have a legal right to possession 19 of the Property. In the FAC, Gonzalez merely alleges that he was “subjected to 20 collection calls; solicitations for bank products; has had a lock box placed on his home 21 to force him to pay.” (FAC ¶ 132.) Such conclusory allegations cannot survive a 22 motion to dismiss. See Golden State Warriors, 266 F.3d at 988. 23 For these reasons, the Court dismisses Gonzalez’s FDCPA claim without leave 24 to amend the FAC to cure the deficiencies described above. 25 H. Unfair Competition (Fourth Cause of Action) 26 Gonzalez’s Unfair Competition Law (“UCL”) claim is predicated on his other 27 allegations regarding Rushmore’s attempted foreclosure activities. To state a valid 28 claim under the UCL, Gonzalez must allege that Rushmore engaged in an “unlawful, 1 unfair or fraudulent business act or practice.” Bernardo v. Planned Parenthood Fed’n 2 of Am., 115 Cal. App. 4th 322, 351 (2004). Because the Court finds that Gonzalez has 3 not sufficiently stated a claim regarding the underlying violations related to the 4 foreclosure activities, Gonzalez’s UCL claim necessarily fails as well. Pantoja v. 5 Countrywide Home Loans, Inc., 640 F. Supp. 2d 1177, 1190-91 (N.D. Cal. 2009). 6 Therefore, the Court GRANTS Rushmore’s Motion to Dismiss Gonzalez’s UCL claim 7 without leave to amend. 8 I. Leave to Amend 9 In general, a court should liberally allow a party leave to amend its pleading. 10 See Fed. R. Civ. P. 15(a). However, the Court may deny leave to amend where 11 amendment would be futile. Gardner v. Martino, 563 F.3d 981, 990 (9th Cir. 2009). 12 When “any amendment would be futile, there is no need to prolong the litigation by 13 permitting further amendment.” Chaset v. Fleer/Skybox Int’l, LP, 300 F.3d 1083, 14 1088 (9th Cir. 2002) (affirming the trial court’s denial of leave to amend where 15 plaintiffs could not cure a basic flaw). 16 The Court dismisses Gonzalez’s fourth, sixth, seventh, eighth, ninth, tenth, 17 eleventh, twelfth, thirteenth causes of action against Rushmore with prejudice. The 18 Court denies leave to amend these claims as the Court has concluded further 19 amendments would not cure the fatal deficiencies discussed above. 20 21 22 23 24 25 26 27 28 1 V. CONCLUSION 2 For the foregoing reasons, the Court GRANTS Defendant Rushmore’s Motion 3 || to Dismiss Plaintiff's First Amended Complaint (ECF No. 82) as follows: 4 5 1. The Motion is GRANTED with PREJUDICE as to Gonzalez’s claims 6 against Rushmore for: (1) quiet title and slander of title; (2) TILA, 7 HOEPA, and RESPA violations; (3) intentional infliction of emotional 8 distress; (4) negligent infliction of emotional distress; (5) constitutional 9 violations; and (6) ADA violations; (7) HBOR violations; (8) FDCPA 10 violations; and (9) UCL violations. 1] 12 The Court will issue Judgment. 13 14 IT IS SO ORDERED. 15 16 January 9, 2020 NY 17 NF “ gf

19 OTIS D. WRIGHT, II 50 UNITED STATES DISTRICT JUDGE

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