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8 United States District Court 9 Central District of California
11 PAUL PHAT TRAN et al., Case № 5:19-cv-00242-ODW (SHKx)
12 Plaintiffs, ORDER GRANTING DEFENDANTS’ 13 v. MOTIONS TO DISMISS [40], [51] 14 BAYVIEW LOAN SERVICING, LLC et al., 15 Defendants. 16 17 18 I. INTRODUCTION 19 Plaintiffs Paul Phat Tran (“Mr. Tran”) and Tina Tran (“Ms. Tran”) (collectively 20 “Plaintiffs”) bring this action against Defendants Bayview Loan Servicing, LLC 21 (“Bayview”), JPMorgan Chase Bank, N.A. (“Chase”), and Trustee Corp. for various 22 claims based on an alleged attempt of an unlawful non-judicial foreclosure of 23 Plaintiffs’ real property located at 21274 Nisqually Road, Apple Valley, California 24 92308 (the “Property”). (Second Am. Compl. (“SAC”) ¶¶ 2, 10, ECF No. 33.) 25 Bayview and Chase, separately, move to dismiss Plaintiffs’ Second Amended 26 Complaint. (See Chase’s Mot. to Dismiss (“Chase Mot.”), ECF No. 40; Bayview’s 27 28 1 Mot. to Dismiss (“Bayview Mot.”), ECF No. 51.) For the reasons that follow, the 2 Court GRANTS Chase’s and Bayview’s Motions to Dismiss.1 3 II. FACTUAL BACKGROUND 4 Around November 19, 2010, Ms. Tran obtained a loan from Home Funding 5 Corp. secured by a deed of trust that encumbered the Property.2 (Req. for Judicial 6 Notice Ex. 1, ECF No. 53.) Around March 31, 2017, Ms. Tran transferred the 7 Property to Mr. Tran for no consideration. (SAC ¶ 8.) 8 Bayview is the current loan servicer, while Chase was the previous loan 9 servicer. (SAC ¶¶ 3–4.) Plaintiffs allege that, on August 21, 2018, Defendant Trustee 10 Corp. recorded a notice of default based on Ms. Tran’s failure to make her loan 11 payments. (SAC ¶ 9; Req. for Judicial Notice Ex. 5.) 12 As to Chase, Plaintiffs allege that Mr. Tran sent his payments to the lender 13 using his Chase checking account by way of direct withdrawal and that “Chase 14 wrongfully stopped sending his direct payments to the lender.” (SAC ¶¶ 21–22.) 15 As to Bayview, Plaintiffs allege that Bayview charged Plaintiffs for 16 homeowner’s insurance and unpaid property taxes despite Plaintiffs having 17 homeowner’s insurance and having paid their property taxes. (SAC ¶¶ 10–16.) 18 Purportedly, Bayview continued to “claim money for payments already received.” 19 (SAC ¶ 12.) 20 Plaintiffs identify five causes of action against all defendants: (1) breach of 21 contract; (2) negligent infliction of emotional distress; (3) breach of the covenant of 22
23 1 After carefully considering the papers filed in connection with the Motions, the Court deemed the matters appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. 24 2 Bayview requested judicial notice of certain public documents recorded with the San Bernardino 25 County Recorder’s Office. (See Req. for Judicial Notice, ECF No. 53.) Plaintiffs do not oppose or object. As such, the Court grants Bayview’s Request and takes judicial notice of the items 26 requested. See, e.g., Grant v. Aurora Loan Servs., Inc., 736 F. Supp. 2d 1257, 1264 (C.D. Cal. 2010) (collecting cases granting judicial notice of documents recorded by the County Recorder’s 27 Office). Although a court is generally limited to the pleadings in ruling on a Rule 12(b)(6) motion, it 28 may consider documents incorporated by reference in the complaint. Lee v. City of Los Angeles, 250 F.3d 668, 688–89 (9th Cir. 2001). The Court does that here. 1 good faith and fair dealing; (4) violation of California Business and Professions Code 2 sections 17200 and 17500; and (5) declaratory relief. (SAC ¶¶ 17–57.) 3 On December 10, 2019, Ms. Tran filed a notice of voluntary dismissal of all her 4 claims without prejudice, which the Court granted. (ECF Nos. 48, 50.) Accordingly, 5 the Court addresses the present motions as to Mr. Tran’s claims. 6 III. LEGAL STANDARD 7 A court may dismiss a complaint under Rule 12(b)(6) for lack of a cognizable 8 legal theory or insufficient facts pleaded to support an otherwise cognizable legal 9 theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). To 10 survive a dismissal motion, a complaint need only satisfy the minimal notice pleading 11 requirements of Rule 8(a)(2)—a short and plain statement of the claim. Porter v. 12 Jones, 319 F.3d 483, 494 (9th Cir. 2003). The factual “allegations must be enough to 13 raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 14 U.S. 544, 555 (2007). That is, the complaint must “contain sufficient factual matter, 15 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. 16 Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). 17 The determination of whether a complaint satisfies the plausibility standard is a 18 “context-specific task that requires the reviewing court to draw on its judicial 19 experience and common sense.” Id. at 679. A court must construe all “factual 20 allegations set forth in the complaint . . . as true and . . . in the light most favorable” to 21 the plaintiff. Lee, 250 F.3d at 679. However, a court need not blindly accept 22 conclusory allegations, unwarranted deductions of fact, and unreasonable inferences. 23 Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). Pro se 24 pleadings are to be construed liberally, but a plaintiff must still present factual 25 allegations sufficient to state a plausible claim for relief. See Hebbe v. Pliler, 627 26 F.3d 338, 341 (9th Cir. 2010). A court may not “supply essential elements of the 27 claim that were not initially pled.” Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 28 1 1992). A liberal reading cannot cure the absence of such facts. Ivey v. Bd. of Regents 2 of Univ. Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 3 Where a district court grants a motion to dismiss, it should generally provide 4 leave to amend unless it is clear the complaint could not be saved by any amendment. 5 See Fed. R. Civ. P. 15(a); Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 6 1025, 1031 (9th Cir. 2008). Leave to amend may be denied when “the court 7 determines that the allegation of other facts consistent with the challenged pleading 8 could not possibly cure the deficiency.” Schreiber Distrib. Co. v. Serv-Well Furniture 9 Co., 806 F.2d 1393, 1401 (9th Cir. 1986). Thus, leave to amend “is properly 10 denied . . . if amendment would be futile.” Carrico v. City and Cty. of San Francisco, 11 656 F.3d 1002, 1008 (9th Cir. 2011). 12 IV. DISCUSSION 13 As a preliminary matter, the Court notes that Plaintiffs filed the same 14 oppositions to both Bayview and Chase’s motions, with the exception of two 15 additional sections in opposition to Chase’s Motion addressing the breach of contract 16 and negligent infliction of emotional distress. (Compare Opp’n to Chase Mot., ECF 17 No. 43, with Opp’n to Bayview Mot., ECF No. 57.) 18 A. Standing 19 Bayview moves to dismiss Mr.
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2 3 4 5 6 7
8 United States District Court 9 Central District of California
11 PAUL PHAT TRAN et al., Case № 5:19-cv-00242-ODW (SHKx)
12 Plaintiffs, ORDER GRANTING DEFENDANTS’ 13 v. MOTIONS TO DISMISS [40], [51] 14 BAYVIEW LOAN SERVICING, LLC et al., 15 Defendants. 16 17 18 I. INTRODUCTION 19 Plaintiffs Paul Phat Tran (“Mr. Tran”) and Tina Tran (“Ms. Tran”) (collectively 20 “Plaintiffs”) bring this action against Defendants Bayview Loan Servicing, LLC 21 (“Bayview”), JPMorgan Chase Bank, N.A. (“Chase”), and Trustee Corp. for various 22 claims based on an alleged attempt of an unlawful non-judicial foreclosure of 23 Plaintiffs’ real property located at 21274 Nisqually Road, Apple Valley, California 24 92308 (the “Property”). (Second Am. Compl. (“SAC”) ¶¶ 2, 10, ECF No. 33.) 25 Bayview and Chase, separately, move to dismiss Plaintiffs’ Second Amended 26 Complaint. (See Chase’s Mot. to Dismiss (“Chase Mot.”), ECF No. 40; Bayview’s 27 28 1 Mot. to Dismiss (“Bayview Mot.”), ECF No. 51.) For the reasons that follow, the 2 Court GRANTS Chase’s and Bayview’s Motions to Dismiss.1 3 II. FACTUAL BACKGROUND 4 Around November 19, 2010, Ms. Tran obtained a loan from Home Funding 5 Corp. secured by a deed of trust that encumbered the Property.2 (Req. for Judicial 6 Notice Ex. 1, ECF No. 53.) Around March 31, 2017, Ms. Tran transferred the 7 Property to Mr. Tran for no consideration. (SAC ¶ 8.) 8 Bayview is the current loan servicer, while Chase was the previous loan 9 servicer. (SAC ¶¶ 3–4.) Plaintiffs allege that, on August 21, 2018, Defendant Trustee 10 Corp. recorded a notice of default based on Ms. Tran’s failure to make her loan 11 payments. (SAC ¶ 9; Req. for Judicial Notice Ex. 5.) 12 As to Chase, Plaintiffs allege that Mr. Tran sent his payments to the lender 13 using his Chase checking account by way of direct withdrawal and that “Chase 14 wrongfully stopped sending his direct payments to the lender.” (SAC ¶¶ 21–22.) 15 As to Bayview, Plaintiffs allege that Bayview charged Plaintiffs for 16 homeowner’s insurance and unpaid property taxes despite Plaintiffs having 17 homeowner’s insurance and having paid their property taxes. (SAC ¶¶ 10–16.) 18 Purportedly, Bayview continued to “claim money for payments already received.” 19 (SAC ¶ 12.) 20 Plaintiffs identify five causes of action against all defendants: (1) breach of 21 contract; (2) negligent infliction of emotional distress; (3) breach of the covenant of 22
23 1 After carefully considering the papers filed in connection with the Motions, the Court deemed the matters appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. 24 2 Bayview requested judicial notice of certain public documents recorded with the San Bernardino 25 County Recorder’s Office. (See Req. for Judicial Notice, ECF No. 53.) Plaintiffs do not oppose or object. As such, the Court grants Bayview’s Request and takes judicial notice of the items 26 requested. See, e.g., Grant v. Aurora Loan Servs., Inc., 736 F. Supp. 2d 1257, 1264 (C.D. Cal. 2010) (collecting cases granting judicial notice of documents recorded by the County Recorder’s 27 Office). Although a court is generally limited to the pleadings in ruling on a Rule 12(b)(6) motion, it 28 may consider documents incorporated by reference in the complaint. Lee v. City of Los Angeles, 250 F.3d 668, 688–89 (9th Cir. 2001). The Court does that here. 1 good faith and fair dealing; (4) violation of California Business and Professions Code 2 sections 17200 and 17500; and (5) declaratory relief. (SAC ¶¶ 17–57.) 3 On December 10, 2019, Ms. Tran filed a notice of voluntary dismissal of all her 4 claims without prejudice, which the Court granted. (ECF Nos. 48, 50.) Accordingly, 5 the Court addresses the present motions as to Mr. Tran’s claims. 6 III. LEGAL STANDARD 7 A court may dismiss a complaint under Rule 12(b)(6) for lack of a cognizable 8 legal theory or insufficient facts pleaded to support an otherwise cognizable legal 9 theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). To 10 survive a dismissal motion, a complaint need only satisfy the minimal notice pleading 11 requirements of Rule 8(a)(2)—a short and plain statement of the claim. Porter v. 12 Jones, 319 F.3d 483, 494 (9th Cir. 2003). The factual “allegations must be enough to 13 raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 14 U.S. 544, 555 (2007). That is, the complaint must “contain sufficient factual matter, 15 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. 16 Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). 17 The determination of whether a complaint satisfies the plausibility standard is a 18 “context-specific task that requires the reviewing court to draw on its judicial 19 experience and common sense.” Id. at 679. A court must construe all “factual 20 allegations set forth in the complaint . . . as true and . . . in the light most favorable” to 21 the plaintiff. Lee, 250 F.3d at 679. However, a court need not blindly accept 22 conclusory allegations, unwarranted deductions of fact, and unreasonable inferences. 23 Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). Pro se 24 pleadings are to be construed liberally, but a plaintiff must still present factual 25 allegations sufficient to state a plausible claim for relief. See Hebbe v. Pliler, 627 26 F.3d 338, 341 (9th Cir. 2010). A court may not “supply essential elements of the 27 claim that were not initially pled.” Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 28 1 1992). A liberal reading cannot cure the absence of such facts. Ivey v. Bd. of Regents 2 of Univ. Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 3 Where a district court grants a motion to dismiss, it should generally provide 4 leave to amend unless it is clear the complaint could not be saved by any amendment. 5 See Fed. R. Civ. P. 15(a); Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 6 1025, 1031 (9th Cir. 2008). Leave to amend may be denied when “the court 7 determines that the allegation of other facts consistent with the challenged pleading 8 could not possibly cure the deficiency.” Schreiber Distrib. Co. v. Serv-Well Furniture 9 Co., 806 F.2d 1393, 1401 (9th Cir. 1986). Thus, leave to amend “is properly 10 denied . . . if amendment would be futile.” Carrico v. City and Cty. of San Francisco, 11 656 F.3d 1002, 1008 (9th Cir. 2011). 12 IV. DISCUSSION 13 As a preliminary matter, the Court notes that Plaintiffs filed the same 14 oppositions to both Bayview and Chase’s motions, with the exception of two 15 additional sections in opposition to Chase’s Motion addressing the breach of contract 16 and negligent infliction of emotional distress. (Compare Opp’n to Chase Mot., ECF 17 No. 43, with Opp’n to Bayview Mot., ECF No. 57.) 18 A. Standing 19 Bayview moves to dismiss Mr. Tran as a plaintiff in this case because he is not 20 the real party in interest. Mr. Tran does not oppose this position. Only a borrower or 21 her assignee may bring a claim based on the underlying mortgage. See Pena v. Ocwen 22 Loan Servicing, LLC, No. CV 17-2437 FMO (GJSx), 2018 WL 5857983, at *4 (C.D. 23 Cal. Apr. 23, 2018) (finding that the plaintiff lacked standing to bring claims regarding 24 the loan handling and property foreclosure because he was neither the borrower nor 25 the owner of the property); Shetty v. ARLP Securitization Tr. Series 2014-2, No. CV- 26 16-05467-BRO (GJSx), 2016 WL 10999324, at *6 (C.D. Cal. Oct. 28, 2016) 27 (dismissing claims because the plaintiff was not the borrower or assignee). 28 1 Although the SAC states that Mr. Tran is the current owner of the Property 2 (SAC ¶ 8), Plaintiffs failed to sufficiently allege that Mr. Tran is the proper party to 3 bring claims for breach of contract; negligent infliction of emotional distress; breach 4 of covenant of good faith and fair dealing; violation of California Business and 5 Professions Code sections 17200 and 17500; and declaratory relief. See Green v. 6 Central Mortg. Co., No. 14-cv-04281-LC, 2015 WL 5157479, at *4 (N.D. Cal. Sept. 7 2, 2015) (“Courts thus have dismissed foreclosure-based claims—like [Plaintiff’s] 8 negligent misrepresentation, fraud, wrongful foreclosure, UCL, cancellation of deed, 9 and declaratory relief claims—by persons who were not parties to mortgage loans.). 10 Mr. Tran is not a party to the loan, and Plaintiffs have not alleged that Mr. Tran 11 assumed the obligations of the loan via the transfer of property. Thus, Mr. Tran lacks 12 standing and his claims are dismissed. 13 B. Failure to State a Claim 14 Chase and Bayview also move to dismiss the Second Amended Complaint 15 (“SAC”) based on Plaintiffs’ failure to sufficiently allege each claim. (See generally 16 Chase Mot.; see generally Bayview Mot.) After reviewing the SAC, the Court finds 17 that Mr. Tran failed to cure any of the deficiencies raised in the Court’s previous 18 Order regarding the sufficiency of the allegations. 19 Again, the SAC does not identify the contract that Defendants allegedly 20 breached, as required for a breach of contract and breach of covenant claims. Though 21 Mr. Tran asserts that Chase violated the terms of the promissory note, he was not a 22 party to that agreement. (Opp’n to Chase Mot. 5.) Thus, Mr. Tran fails to state a 23 claim for breach of contract or breach of covenant. See Otworth v. S. Pac. Trans. Co., 24 166 Cal. App. 3d 452, 459 (1985) (dismissing claim for breach of contract for 25 plaintiff’s failure to identify the contract or the alleged contract’s terms); see also 26 Fireman’s Fund Ins. Co. v. Maryland Cas. Co., 21 Cal. App. 4th 1586, 1599 (1994) 27 (“Without a contractual underpinning, there is no independent claim for breach of the 28 implied covenant.”). 1 Next, Mr. Tran does not refute Chase’s and Bayview’s argument that they do 2 not owe Plaintiffs a duty of care, as required for negligent infliction of emotional 3 distress. (Chase Mot. 6–7; Bayview Mot. 6–7); see also Aguinaldo v. Ocwen Loan 4 Servicing, No. 5:12-cv-01393-EJD, 2012 WL 3835080, at *8 (N.D. Cal. Sept. 4, 5 2012) (finding that the defendant owed no duty to the plaintiff “against emotional 6 distress when acting in the regular course of business as their loan servicer”). He 7 summarily asserts that Chase and Bayview owe him a duty without expounding on 8 what gives rise to the duty. (Opp’n to Chase Mot. 5.) 9 Finally, Mr. Tran asserts that he “alleged and prove[d] multiple violations of the 10 [Homeowner’s Bill of Rights].” (Opp’n to Chase Mot. 8.) However, the SAC makes 11 no mention of the Homeowner’s Bill of Rights and the one-sentence argument in his 12 opposition fails to provide legal authority or any basis for the violation. (Reply in 13 Supp. of Chase Mot., ECF No. 45; see Opp’n to Chase Mot. 8.) 14 Plaintiffs’ failure to provide a single citation to their SAC illustrates its 15 deficient nature. Plaintiffs failed to sufficiently plead any of their claims, again. The 16 Court dismissed Plaintiffs’ first amended complaint with leave to amend; however, 17 Plaintiffs failed to cure any of the defects the Court identified in its prior Order and for 18 the most part realleged identical allegations. Thus, the Court does not believe that the 19 complaint can be saved by any amendment 20 Accordingly, Mr. Tran’s claims are dismissed without leave to amend. 21 22 23 24 25 26 27 28 1 V. CONCLUSION 2 For the reasons discussed above, the Court GRANTS Chase’s Motion to 3 || Dismiss (ECF No. 40) and Bayview’s Motion to Dismiss (ECF No. 51). The Court 4] will enter Judgment. 5 6 IT IS SO ORDERED. 7 8 March 2, 2020 9 ‘ \ Gud dai 11 OTIS D. WRIGHT, II b UNITED STATES DISTRICT JUDGE
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