Lansdown v. Bayview Loan Servicing, LLC

• Court: District Court, N.D. California
• Decided: September 13, 2022
• Docket: 3:22-cv-00763
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MELISSA LANSDOWN, Case No. 22-cv-00763-TSH 8 Plaintiff, ORDER RE: DEFENDANTS’ 9 v. MOTIONS TO DISMISS 10 BAYVIEW LOAN SERVICING, LLC, et Re: Dkt. Nos. 18, 31 al., 11 Defendants. 12 13 I. INTRODUCTION 14 Pending before the Court are a Motion to Dismiss, filed by Defendants Bayview Loan 15 Servicing, LLC (“Bayview”) and NewRez LLC dba Shellpoint Mortgage Servicing (“Shellpoint”) 16 and a Motion to Dismiss, filed by Defendant Bank of America, N.A. (“BANA”). ECF Nos. 18, 17 31. For the reasons stated below, the Court GRANTS IN PART AND DENIES IN PART the 18 Motion to Dismiss by Bayview and Shellpoint, and GRANTS BANA’s Motion to Dismiss.1 19 II. BACKGROUND 20 A. Factual Background2 21 On April 25, 2001, Lansdown and Ellis Greenberg signed a promissory note and deed of 22 1 The parties have consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c). ECF 23 Nos. 7, 13, 25, and 30. 24 2 On May 12, 2022, Lansdown filed an amendment to first amended complaint stating Lansdown discovered Defendants’ names and seeking leave to amend the complaint to add defendants 25 BANA and New York Bank Mellon to the complaint. ECF No. 20. Defendants did not file an opposition to Lansdown’s amendment and the Court has not issued a pretrial scheduling order 26 addressing the deadline to add additional defendants. See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992) (“Once the district court had filed a pretrial scheduling order 27 pursuant to Federal Rule of Civil Procedure 16 which established a timetable for amending 1 trust for real property (“Property”). ECF No. 21 ¶¶ 19-20. In 2003, Greenberg executed a quit 2 claim deed of his interest to Lansdown. Id. ¶¶ 21-22; 21-2, Exhibit 2 (Quitclaim Deed). On 3 November 1, 2009, Lansdown fell behind on her mortgage payments because BANA allegedly 4 told her that she needed to fall behind in payments to qualify for a loan modification. Id. ¶¶ 24- 5 26. On February 18, 2010, a Notice of Default was recorded against the Property with Bank of 6 New York Mellon named as the creditor. Id. ¶ 27. 7 Lansdown filed a lawsuit in Sonoma County Superior Court against Bayview and BANA. 8 Id. ¶ 28. On December 19, 2018, Lansdown and BANA signed a Memorandum of Understanding 9 Re Settlement. Id. ¶ 28; 21-3, Exhibit 3 (Memorandum of Understanding). On January 28, 2019, 10 Bayview sent Lansdown a Settlement Agreement and Loan Modification Agreement. Id. ¶ 29; 21- 11 4, Exhibit 4. On April 3, 2019 Lansdown signed the Settlement Agreement. Id. ¶ 32; 21-6, 12 Exhibit 6 (Settlement Agreement). On May 13, 2019, Lansdown executed the Loan Modification 13 Agreement. Id. ¶ 34; 21-8, Exhibit 8 (Loan Modification Agreement). Between February 2019 14 and August 2019, Lansdown made seven payments towards the Property. Id. ¶¶ 34-35. However, 15 Bayview refused some of Lansdown’s payments and attempted to foreclose on the Property. Id. ¶ 16 36. 17 On January 8, 2020, Lansdown obtained a Temporary Restraining Order and prevented 18 foreclosure on the Property. Id. ¶ 37. Bayview transferred servicing of Lansdown’s loan to 19 Shellpoint on January 23, 2020. Id. ¶ 38. On July 29, 2020, Lansdown’s Motion for Preliminary 20 Injunction was granted. Id. ¶ 39. Bayview and Shellpoint attempted to foreclose the Property on 21 September 16, 2020. Id. ¶ 40. On September 21, 2020, Bayview cancelled the foreclosure sale. 22 Id. ¶ 41. 23 B. Procedural Background 24 On February 6, 2022, Lansdown filed the instant action against Defendants Bayview, 25 Shellpoint, and DOES 1-10. ECF No. 1. On April 25, 2022, Lansdown filed a First Amended 26 should freely give leave when justice so requires.”). Therefore, pursuant to Federal Rule of Civil 27 Procedure 15, the Court GRANTS leave for Lansdown to file an amended complaint. The Court 1 Complaint. ECF No. 17. On May 13, 2022, Lansdown filed another First Amended Complaint 2 (“FAC”) naming Defendants Bayview, Shellpoint, BANA, and New York Bank Mellon. ECF No. 3 21. The FAC alleges the following causes of action: 1) violation of Federal Debt Collection 4 Protection Act (against Bayview), 2) violation of Rosenthal Act (against Bayview), 3) intentional 5 infliction of emotional distress (“IIED”) (against Bayview), 4) breach of contract (against 6 Bayview), 5) violation of Federal Debt Collection Protection Act (against Shellpoint), 6) violation 7 of Rosenthal Act (against Shellpoint), 7) IIED (against Shellpoint), 8) breach of contract (against 8 Shellpoint), and 9) Rescission (against all defendants). ECF No. 21 ¶¶ 19-126. Lansdown seeks 9 rescission of the Memorandum of Understanding, Settlement Agreement, and Loan Modification 10 Agreement based on Bayview’s repudiation of Lansdown’s payments and attempted foreclosure of 11 the Property. Id. ¶ 125. 12 On May 9, 2022, Bayview and Shellpoint filed a Motion to Dismiss pursuant to Federal 13 Rules of Civil Procedure 12(b)(7) and 12(b)(6). ECF No. 18. On May 23, 2022, Lansdown filed 14 an opposition. ECF No. 26. On May 31, 2022, Bayview and Shellpoint filed a reply. ECF No. 15 28. 16 On June 6, 2022, BANA filed a Motion to Dismiss pursuant to Federal Rule of Civil 17 Procedure 12(b)(6), ECF No. 31, and a request for judicial notice, ECF No. 32. On June 20, 2022, 18 Lansdown filed an opposition. ECF No. 33. On June 27, 2022, BANA filed a reply. ECF No. 34. 19 On August 21, 2022, the Court ordered the parties to submit supplemental briefing 20 addressing whether Cal. R. Ct. App. I Emergency Rule 9 extends the statute of limitations on a 21 FDCPA claim. ECF No. 36. The parties submitted supplemental briefings on September 7, 2022. 22 ECF Nos. 37-38. 23 III. LEGAL STANDARD 24 A. 12(b)(7) 25 Rule 12(b)(7) permits a party to raise the defense of “failure to join a party under Rule 19.” 26 If an absent party is necessary and can be joined, “the court must order that the person be made a 27 party.” Fed. R. Civ. P. 19(a)(2). Rule 19 “provides a three-step process for determining whether 1 States v. Bowen, 172 F.3d 682, 688 (9th Cir. 1999). First, the Court determines whether the absent 2 party is “necessary” under Rule 19(a)(1). E.E.O.C. v. Peabody Western Coal Co., 400 F.3d 774, 3 779 (9th Cir. 2005). “If an absentee is a necessary party under Rule 19(a), the second stage is for 4 the court to determine whether it is feasible to order that the absentee be joined.” Id. “Finally, if 5 joinder is not feasible, the court must determine at the third stage whether the case can proceed 6 without the absentee, or whether the absentee is an “indispensable party” such that the action must 7 be dismissed.” Id. 8 B. 12(b)(6) 9 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the legal 10 sufficiency of a claim.” Cook v. Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011) (citations and 11 quotations omitted). Rule 8 provides that a complaint must contain a “short and plain statement of 12 the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Thus, a complaint 13 must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. 14 Twombly, 550 U.S. 544, 570 (2007). Plausibility does not mean probability, but it requires “more 15 than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 16 687 (2009). A complaint must therefore provide a defendant with “fair notice” of the claims 17 against it and the grounds for relief. Twombly, 550 U.S. at 555 (quotations and citation omitted). 18 In considering a motion to dismiss, the Court accepts factual allegations in the complaint as 19 true and construes the pleadings in the light most favorable to the nonmoving party. Manzarek v. 20 St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008); Erickson v. Pardus, 551 21 U.S. 89, 93-94 (2007). However, “the tenet that a court must accept a complaint’s allegations as 22 true is inapplicable to threadbare recitals of a cause of action’s elements, supported by mere 23 conclusory statements.” Iqbal, 556 U.S. at 678. Therefore, the Court is not required to “accept as 24 true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable 25 inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). 26 If a Rule 12(b)(6) motion is granted, the “court should grant leave to amend even if no 27 request to amend the pleading was made, unless it determines that the pleading could not possibly 1 (citations and quotations omitted). 2 IV. DISCUSSION 3 A. Motion to Dismiss by Bayview and Shellpoint 4 Bayview and Shellpoint (collectively “Defendants”) move to dismiss the FAC under 5 Federal Rules of Civil Procedure 12(b)(7) and 12(b)(6). ECF No. 18. 6 1. 12(b)(7) 7 Defendants argue Ellis Greenberg is a necessary party to the action because he is a 8 signatory of the Deed of Trust, a co-borrower of the promissory note, and a co-borrower named on 9 the Loan Modification Agreement. ECF Nos. 18 at 4-5; 28 at 4. 10 A party is necessary if: (a) complete relief cannot be granted in the party’s absence; or (b) 11 the Court determines that “the absent party’s participation is necessary to protect its legally 12 cognizable interests or to protect other parties from a substantial risk of incurring multiple or 13 inconsistent obligations because of those interests.” Disabled Rights Action Comm. v. Las Vegas 14 Events, Inc., 375 F.3d 861, 880 (9th Cir. 2004) (quoting Fed.R.Civ.P. 19(a)). “There is no precise 15 formula for determining whether a particular nonparty should be joined under Rule 19(a) . . . . 16 The determination is heavily influenced by the facts and circumstances of each case.” Peabody W. 17 Coal Co., 610 F.3d at 1078 (quoting N. Alaska Env’t Ctr. v. Hodel, 803 F.2d 466, 468 (9th Cir. 18 1986)). 19 a. Whether Complete Relief Can be Granted 20 Defendants argue that the Court cannot grant complete relief among the existing parties in 21 Greenberg’s absence because Greenberg is a signatory to the 2001 Deed of Trust and Bayview’s 22 loan. ECF No. 18 at 5. Lansdown argues Greenberg is not a signatory of the contracts at issue in 23 this case. ECF No. 26 at 6. 24 The issue of whether complete relief may be afforded is “concerned with consummate 25 rather than partial or hollow relief as to those already parties, and with precluding multiple 26 lawsuits on the same cause of action.” Northrop Corp. v. McDonnell Douglas Corp., 705 F.2d 27 1030, 1043 (9th Cir. 1983). The concern regards “relief as between the persons already parties, 1 N. Cal. Counties Joint Apprenticeship and Training Comm., 662 F.2d 534, 537 (9th Cir. 1981) 2 (internal citation and quotations omitted). The Court considers whether the nonparty’s absence 3 “would preclude the district court from fashioning meaningful relief as between the parties.” 4 Disabled Rights Action Comm., 375 F.3d at 879. 5 Here, Lansdown seeks damages and rescission of the Memorandum of Understanding, 6 Settlement Agreement, and Loan Modification Agreement. FAC ¶ 125. The FAC sufficiently 7 pleads Greenberg is not a signatory of these contracts. See ECF Nos. 21-3 (Memorandum of 8 Understanding); 21-6 (Settlement Agreement); and 21-8 (Loan Modification Agreement). 9 Because Greenberg is not a signatory, the Court may grant Lansdown’s request for rescission. See 10 Zhu v. Li, Case No. 19-cv-2534-JSW, 2021 WL 6200504, at *2 (N.D. Cal. Nov. 24, 2021) (“[T]he 11 absence of Mr. Li will not preclude relief to either party. . . . Mr. Li is not a signatory to the Sale 12 Agreement.”); Royal Primo Corp. v. Whitewater West Industries, Ltd., Case No. 15-cv-4391-JCS, 13 2016 WL 4080177, at *5 (N.D. Cal. July 29, 2016) (“[T]he SAC alleges that only Plaintiffs and 14 Whitewater were parties to the oral contract and Plaintiffs’ claims for fraud, quasi contract and 15 unfair business practices do not involve CDM. Thus, the Court can ‘accord complete relief among 16 existing parties’ in CDM's absence . . .). Moreover, if Lansdown prevails on damages, Defendants 17 would be able to pay damages without the presence of Greenberg. See Zhu, 2021 WL 6200504 at 18 *2 (“If Plaintiff were to prevail, Defendants would be required to pay damages and comply with 19 any required accounting, which they would be able to do without the presence of Mr. Li.”). 20 Finally, although Greenberg signed the Property’s deed of trust, the FAC adequately pleads that 21 Greenberg executed a Quit Claim Deed and transferred his interest to Lansdown. ECF No. 21 ¶ 22 20. The Court finds complete relief can be granted in Greenberg’s absence. 23 b. Whether Greenberg has Legally Cognizable Interests 24 Defendants argue that Greenberg has an interest in the Loan Modification Agreement. 25 ECF No. 18 at 5. Lansdown argues Greenberg has no interest because he is not a signatory of the 26 Loan Modification Agreement. ECF No. 26 at 6. 27 Rule 19(a)(1)(B) requires the absent party “claim a legally protected interest relating to the 1 (9th Cir. 1983). “If a legally protected interest exists, the court must further determine whether 2 that interest will be impaired or impeded by the suit.” Makah Indian Tribe v. Verity, 910 F.2d 3 555, 559 (9th Cir. 1990). 4 According to the FAC, Greenberg signed the Bayview promissory note and remains a co- 5 borrower on the Bayview loan. ECF Nos. 21 at ¶¶ 19-20; 21-12, Exhibit 12 at 9. Therefore, 6 Greenberg has an interest in Bayview loan, and this interest is related to Lansdown’s claims 7 because the Bayview loan is the subject of the Loan Modification Agreement. However, “an 8 interest that arises from terms in bargained contracts may be protected” if the interest is 9 “substantial.” Cachil Dehe Band of Wintun Indians of the Colusa Indian Community v. 10 California, 547 F.3d 962, 970 (9th Cir. 2008). The FAC does not allege that Greenberg is 11 involved in the alleged breach of the Loan Modification Agreement and Defendants have failed to 12 demonstrate how Greenberg’s interest is substantial. See Jamul Action Comm. v. Simermeyer, 974 13 F.3d 984, 996 (9th Cir. 2020) (“To come within the bounds of Rule 19(a)(1)(B)(i), the interest of 14 the absent party must be a legally protected interest and not merely some stake in the outcome of 15 the litigation.”); Disabled Rights Action Comm., 375 F.3d at 880-883 (“[A] financial stake in the 16 outcome of the litigation is not a legally protected interest giving rise to § 19(a)(2) necessity.”). 17 Because Greenberg did not sign the Loan Modification Agreement, “Defendants cannot at the 18 pleading stage rely on the [Loan Modification Agreement] to establish the existence of a 19 contractual relationship” between Greenberg and the parties to this action. Gross Belsky Alonso 20 LLP v. Henry Edelson, Case No. 08-cv-4666-SBA, 2009 WL 1505284, at *5 (N.D. Cal. May 27, 21 2009). 22 Accordingly, the Court DENIES Defendants’ 12(b)(7) motion to dismiss. See Sirna 23 Therapeutics, Inc. v. Protiva Biotherapeutics, Inc., Case No. 06-cv-1361-MMC, 2006 WL 24 3491027, at *3 (N.D. Cal. Dec. 1, 2006) (Protiva USA is not a party to the Agreement and . . . 25 does not claim any ownership interest in the intellectual property rights at issue therein. That 26 Protiva USA ultimately may benefit financially . . . does not suffice to demonstrate that it has an 27 interest.”). 1 2. 12(b)(6) 2 a. First and Fifth Causes of Action: FDCPA 3 Defendants argue Lansdown’s FDCPA claims are time-barred. ECF No. 18 at 6-7. 4 Defendants also argue that neither Cal. R. App. I Emergency Rule 9 nor equitable tolling apply to 5 Lansdown’s FDCPA claims. ECF No. 38. Lansdown argues Emergency Rule 9 applies to her 6 FDCPA claims, and that the COVID-19 pandemic warrants equitable tolling. ECF No. 37. 7 “The FDCPA prohibits debt collectors from using any ‘unfair or unconscionable means to 8 collect or attempt to collect any debt.’” Kaiser v. Cascade Capital, 989 F.3d 1127, 1133 (9th Cir. 9 2021) (citing 15 U.S.C. § 1692). “[A]ctions to enforce liability for violations of the Act may be 10 brought ‘within one year from the date on which the violation occurs.’” Naas v. Stolman, 130 11 F.3d 892, 893 (9th Cir. 1997) (citing 15 U.S.C. § 1692k(d)). “Absent the application of an 12 equitable doctrine, [the FDCPA’s] statute of limitations begins to run when the alleged FDCPA 13 violation occurs, not when the violation is discovered.” Rotkiske v. Klemm, 140 S. Ct. 355, 357 14 (2019). 15 The Court joins other courts in California in finding Emergency Rule 9 does not extend the 16 statute of limitations on federal claims. See Shubin v. Universal Vacation Club, Case No. 22-cv- 17 2748-RSWL-AGRx, 2022 WL 3577247, at *3 (C.D. Cal. Aug. 18, 2022) (“California federal 18 courts have been hesitant to apply Emergency Rule 9, at least in cases exercising federal question 19 jurisdiction . . . This hesitancy in part stems from the fact that Emergency Rule 9 was issued by 20 the California Judicial Council, and not any federal court or body.”); Sholes v. Cates, Case No. 21- 21 cv-1006-DAD-HBK, 2021 WL 5567381, at *5 (E.D. Cal. Nov. 29, 2021) (“[T]he the ‘Emergency 22 Rule’ tolling of statutes of limitations for civil causes of action pending in California state court is 23 not applicable to Sholes’ federal habeas claim.”); Goerss v. Pacific Gas & Electric Co., Case No. 24 21-cv-4485-EMC, 2021 WL 4932134, at *6 (N.D. Cal. October 8, 2021) (“Ms. Goerss cannot rely 25 on the California-issued emergency rule referenced above to get relief because she is not in state 26 court.”). Regarding equitable tolling, Lansdown fails to argue how the facts as pled in the FAC 27 establish the application of equitable tolling to her FDCPA claims. See Goerrs, 2021 WL 1 impediment to her, she would have to explain how the pandemic could justify her not filing until 2 July 2021. She has not done so. Indeed, as indicated above, Ms. Goerss must show that she has 3 acted with due diligence, and conditions in the Bay Area had certainly improved by the spring of 4 2021.”); Faircloth v. AR Resources, Case No. 19-cv-5830-JCS, 2020 WL 820307, at *8 (N.D. Cal. 5 Feb. 19, 2020) (“Because the FAC does not plead facts showing that he pursued his rights 6 diligently, Plaintiff is not entitled to the benefit of equitable tolling, and Defendant's motion to 7 dismiss is GRANTED.”). 8 Thus, construing the pleadings in the light most favorable to Lansdown, the last possible 9 date a FDCPA violation occurred was September 21, 2020.3 FAC ¶ 41. Lansdown filed the 10 instant action on February 6, 2022—well over the one-year deadline of September 21, 2021. See 11 Hernandez v. Specialized Loan Servicing LLC, 836 Fed.Appx. 480, 482 (9th Cir. 2020) (“The 12 FDCPA requires that a plaintiff bring his action within one year of the date on which the alleged 13 violation occurred.”). Because the facts as pled in the FAC show that the federal claims are 14 untimely, the Court GRANTS Defendants’ Motion to Dismiss. In case Lansdown “could allege 15 facts supporting this or some other tolling doctrine,” the Court GRANTS Lansdown leave to 16 amend. See Faircloth, 2020 WL 820307, at *8. 17 b. Second and Sixth Causes of Action: Violation of Rosenthal Act 18 Defendants argue Lansdown’s Rosenthal Act claims are time-barred. ECF No. 18 at 6. 19 “Both the FDCPA and Rosenthal Act have a one-year statute of limitations from the date of the 20 violation.” Aliff et al. v. Vervent Inc. et al., Case No. 20-cv-697-DMS-AHG, 2022 WL 3588322, 21 at *10 (S.D. Cal. Aug. 22, 2022) (citing Cal. Civ. Code § 1788.30(f)). Because the Rosenthal Act 22 is a state law, the Court assumes that Emergency Rule 9 applies. Nonetheless, as discussed above 23 in footnote 3, even with the application of Emergency Rule 9, Lansdown still filed her claims too 24

25 3 Even if Emergency Rule 9 applied to Lansdown’s FDCPA claims, Lansdown’s claims would still be time-barred. Emergency Rule 9 tolled the statute of limitations from April 6, 2020 to 26 October 1, 2020. See Cal. Rules of Court, Emergency Rule 9. If the last FDCPA violation occurred on September 21, 2020, Emergency Rule 9 would extend the statute of limitations for 27 Lansdown’s FDCPA claims from September 2021 to October 2021. Lansdown’s filing of the 1 late. The Court GRANTS Defendants’ Motion to Dismiss Lansdown’s Rosenthal Act claims. 2 The Court GRANTS Lansdown leave to amend. 3 c. Third and Seventh Causes of Action: IIED 4 Defendants argue Lansdown’s IIED claims fail because the Property did not foreclose and 5 an IIED claim may not arise from a breach of contract claim. ECF No. 18 at 7-8. Lansdown 6 argues Defendants’ actions were intentional and the FAC adequately alleges her emotional 7 distress. ECF No. 26 at 11. 8 A claim for IIED requires (1) extreme and outrageous conduct by the defendant with the 9 intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the 10 plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation 11 of the emotional distress by the defendant’s outrageous conduct. Lawler v. Montblanc N. Am., 12 LLC, 704 F.3d 1235, 1245 (9th Cir. 2013) (citing Hugh v. Pair, 46 Cal.4th 1035, 1050-51 (2009)). 13 For conduct to be outrageous, “[t]he conduct must be so extreme as to exceed the bounds of what 14 is “usually tolerated in civilized community.” Hughes, 46 Cal.4th at 1050. 15 The FAC alleges Lansdown “suffered personal humiliation, embarrassment, mental 16 anguish, and emotional distress” caused by the last-minute cancellation of foreclosure sales. ECF 17 No. 21 ¶¶ 43, 82. The FAC also alleges “Defendants conduct was intentional and malicious” and 18 “done with the knowledge that [Lansdown’s] emotional and physical distress.” Id. ¶¶ 63, 105. 19 The Court finds these allegations to be conclusory and insufficient to plead an IIED claim. 20 Compare Faulks v. Wells Fargo & Co., Case No. 13-cv-2871-MEJ, 2015 WL 4914986, at *6 21 (N.D. Cal. Aug. 17, 2015) (finding IIED claim sufficient where defendant’s “actions went beyond 22 the typically emotionally-fraught foreclosure process” and “engaged in a scheme to make it 23 extremely difficult for him to ensure that all requested information was timely submitted and that a 24 proper modification review could take place.”) with Kennedy v. World Savings Bank, FSB, Case 25 No. 14-cv-5516-JCS, 2015 WL 1814634, at *9 (N.D. Cal. Apr. 21, 2015) (finding IIED claim not 26 sufficient where foreclosure “lost [plaintiff] his property and ultimately led him to suffer severe 27 emotional distress” and plaintiff did “not allege any facts as to how the foreclosure was intended 1 foreclosure proceedings conducted without threat or insult . . . do not give rise to an IIED claim.” 2 Gustafson v. SunTrust Mortgage, Inc., 752 Fed.Appx. 495, 497 (9th Cir. 2019); see Chang v. 3 Wachovia Mortg., FSB, Case No. 11-cv-1951, 2011 WL 5552899, at *8 (N.D. Cal. Nov. 15, 2011) 4 (“Plaintiff has merely pled that, on multiple occasions, Defendants communicated the possibility 5 of a loan modification or other loss mitigation options. The fact that Defendants ultimately found 6 Plaintiff ineligible for a modification and exercised their legal right to sell the property does not 7 render this conduct outrageous.”). 8 Accordingly, the Court GRANTS Defendants’ Motion to Dismiss as to Lansdown’s IIED 9 claims. The Court GRANTS Lansdown leave to amend. 10 d. Fourth and Eighth Causes of Action: Breach of Contract 11 Defendants argue the FAC fails to sufficiently allege Lansdown performed under the 12 Memorandum of Understanding. ECF No. 18 at 9-10. Lansdown argues the FAC alleges the 13 existence of the deed of trust, her performance of the Memorandum of Understanding, and breach 14 of contract. ECF No. 26 at 14-15. 15 The elements of a cause of action for breach of contract are: 1) the existence of the 16 contract; 2) performance by the plaintiff or excuse for nonperformance; 3) breach by the 17 defendant; and 4) damages. First Commercial Mortgage Co. v. Reece, 89 Cal.App.4th 731, 745 18 (2001). Federal Rule of Civil Procedure 9(c) states “[i]n pleading conditions precedent, it suffices 19 to allege generally that all conditions precedent have occurred or been performed.” 20 Here, the FAC alleges Lansdown “has been performing the Memorandum of 21 Understanding,” “is not in default under legal obligations,” and “offered to cure the alleged missed 22 payments.” ECF No. 21 ¶¶ 72, 74, 109, 111. Under the liberal pleadings standards of FRCP 9(c), 23 the Court finds the FAC sufficiently alleges Lansdown’s performance. See Kiernan v. Zurich 24 Companies, 150 F.3d 1120, 1124 (9th Cir. 1998) (finding allegation that incident occurred “while 25 the policy was in full force and effect” sufficient to plead plaintiff satisfied conditions precedent); 26 Archer Western Contractors, Ltd. V. Liberty Mutual Ins. Co., Case No. 14-cv-3041-DMG 27 (MANx), 2014 WL 12607699, at *4 (C.D. Cal. Aug. 13, 2014) (“[U]nder Rule 9(c)'s liberal 1 under the National Union Policy’ is sufficient to survive a motion to dismiss.”); Textainer Equip. 2 Mgmt. (U.S.) Ltd. v. TRS Inc., Case No. 07-cv-01519 WHA, 2007 WL 1795695, at *2 (N.D. Cal. 3 June 20, 2007) (“[P]laintiff pleads that it ‘has performed all obligations under the Lease 4 Agreement due and owing to defendants and/or Lessee, except for those which Plaintiff was 5 prevented or excused from performing’ . . . [Plaintiff] has pleaded all the necessary elements . . . 6 More detail is not necessary at this time.”). The Court DENIES Defendants’ Motion to Dismiss 7 Lansdown’s breach of contract claims. 8 e. Ninth Cause of Action: Rescission 9 Defendants argue the FAC fails to state a cause of action for rescission because Lansdown 10 failed to provide notice of intent to rescind and failed to restore items of value. ECF No. 18 at 10- 11 11. Lansdown argues she provided notice through service in the instant action, and restoration is 12 not currently required because delay would not prejudice Defendants. ECF No. 26 at 16. 13 The Court agrees with Lansdown. “When notice of rescission . . . under the contract has 14 not otherwise been made, the service of a pleading in an action or proceeding that seeks relief 15 based on rescission shall be deemed to be such notice or offer or both.” Wong v. Stoler, 237 Cal. 16 App. 4th 1375, 1385-86 (2015). Regarding restoration, Defendants fail to respond to Lansdown’s 17 argument concerning prejudice of delay under California Civil Code § 1693. See Cal.Civ.Code § 18 1693 (“A party who has received benefits by reason of a contract that is subject to rescission . . . 19 shall not be denied relief because of a delay in restoring or in tendering restoration of such benefits 20 before judgment unless such delay has been substantially prejudicial to the other party . . . .”); In 21 re Consolidated Pretrial Proceedings in Air West Securities Litig., 436 F. Supp. 1281, 1290 (N.D. 22 Cal. 1977) (“Promptness in seeking rescission of an act induced by duress is not a prerequisite 23 plaintiff must establish; rather, it is the defendant who must assert that he is prejudiced by 24 plaintiff's unreasonable delay.”). Accordingly, the Court must DENY Defendants’ Motion to 25 Dismiss Lansdown’s rescission claim. 26 27 1 || B. Motion to Dismiss by BANA4 2 BANA argues there is no standalone cause of action for rescission and the FAC fails to 3 sufficiently plead the basis for rescission. ECF No. 31 at 5-6. Lansdown fails to respond to any of 4 || BANA’s arguments and seeks leave to amend. ECF No. 33 at 8-11. 5 The Court GRANTS BANA’s Motion to Dismiss Lansdown’s Rescission Claims. See 6 Jozinovich v. JP Morgan Chase Bank, N.A., Case No. 09-cv-3326, 2010 WL 234895, at *7 (N.D. 7 Cal. Jan. 14, 2010) (“Plaintiff’s tenth cause of action is for rescission. Rescission is not an 8 independent cause of action, but rather a remedy.”). 9 V. CONCLUSION 10 For the reasons stated above, the Court GRANTS IN PART AND DENIES IN PART the 11 Motion to Dismiss by Bayview and Shellpoint, and GRANTS BANA’s Motion to Dismiss. The 12 || Court GRANTS Lansdown leave to amend. Lansdown shall file a Second Amended Complaint 13 within 30 days of the date of this order. IT IS SO ORDERED.

a 16 Dated: September 13, 2022 □ LAA. THOMAS S. HIXSON Z 18 United States Magistrate Judge 19 20 21 22 23 24 25 26 + BANA requests the Court take judicial notice of Lansdown’s complaint in Sonoma County 07 Superior Court. ECF No. 32. Lansdown did not file an objection to BANA’s request. The Court GRANTS BANA’s request for judicial notice. See Reyn’s Pasta Bella, LLC v. Visa USA, Inc., ag || 442 F.3d 741, 746 n.6 (9th Cir. 2006) (“We may take judicial notice of court filings and other matters of public record.”).