Perez v. Bank of America, N.A.

• Court: District Court, S.D. California
• Decided: April 21, 2023
• Docket: 3:21-cv-01977
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA

11 MARIA PEREZ, Case No. 21-cv-01977-BAS-LR 12 Plaintiff, ORDER: 13 v. (1) EFFECTING PLAINTIFF’S 14 NOTICE OF DISMISSAL OF NON-ANSWERING 15 OCWEN LOAN SERVICING, et DEFENDANTS (ECF No. al., 58); 16 Defendants. (2) DENYING PLAINTIFF’S 17 MOTION TO DISMISS ANSWERING 18 DEFENDANTS (ECF No. 59); 19 (3) TERMINATING AS MOOT 20 DEFENDANT OCWEN LOAN SERVICING’S 21 MOTION TO DISMISS (ECF No. 37); AND 22 (4) GRANTING DEFENDANTS 23 STATEBRIDGE COMPANY, LLC, 24 WILMINGTON SAVINGS FUND SOCIETY, FSB, AND 25 ZBS LAW, LLP’S MOTION TO DISMISS (ECF No. 52) 26

27 Before the Court are four filings. Having considered the parties’ briefing, the 1 Court: (1) EFFECTS Plaintiff’s Notice of Voluntary Partial Dismissal against non- 2 answering Defendants (ECF No. 58); (2) DENIES Plaintiff’s Motion to Dismiss 3 without prejudice answering Defendants (ECF No. 59); (3) TERMINATES AS 4 MOOT Defendant Ocwen Loan Servicing’s Motion to Dismiss (ECF No. 37); 5 (4) GRANTS Defendants Statebridge Company, LLC, Wilmington Savings Fund 6 Society, FSB, and ZBS Law, LLP’s Motion to Dismiss (ECF No. 52). 7 8 I. BACKGROUND 9 A. Facts Plaintiff bought a home located in Calexico, California. (FAC ¶ 1, ECF No. 10 11 35.) In connection with the home purchase, terminated Defendant America’s 12 Wholesale Lender issued Plaintiff two loans encumbered by two deeds of trust. (Id. 13 ¶ 3.) In January 2009, Plaintiff stopped making monthly payments on the second 14 deed, and in March 2009, she stopped making payments on the first deed. (Id. ¶ 8.) 15 Nearly two years later, in December 2011, Plaintiff filed for bankruptcy in the 16 Southern District of California. (Id. ¶ 9.) After her bankruptcy proceedings ended, 17 terminated Defendant Bank of America, N.A. transferred both of Plaintiff’s loans to 18 Defendant Ocwen Loan Servicing (“Ocwen”). (Id. ¶ 17.) Plaintiff claims that in June 19 2013, Ocwen modified both of her loans and told Plaintiff that she now had a single 20 loan for the current market value of her home, $59,500.00. (Id. ¶ 18.) Ocwen 21 allegedly represented to Plaintiff that her second deed of trust had been written off, 22 and that she no longer had to pay it. (Id. ¶¶ 18–19.) For ten years, Plaintiff made 23 payments consistent with the single modified loan. (Id. ¶ 20.) 24 Then, in August 2021, Plaintiff received a letter from Defendant Statebridge 25 Company, LLC claiming that the loan relating to the second deed would mature in 26 March 2022, becoming due and payable at that time. (Id. ¶ 21.) Defendant 27 Wilmington Savings Fund Society seemingly was assigned the deed of trust from Wilmington Savings Society, FSB (id. ¶ 23). A foreclosure sale occurred on October 1 19, 2022. (ECF No. 40-1 at 2.) 2 B. Procedural Posture 3 Plaintiff commenced this action on November 22, 2021. (ECF No. 1.) On the 4 same day, Plaintiff filed ex parte her first Application for Temporary Restraining 5 Order (“TRO”). (ECF No. 3.) The Court denied the Application for TRO without 6 prejudice, because Plaintiff failed to provide notice to Defendants or demonstrate 7 why notice was impossible. (ECF No. 6.) On December 22, 2021, Defendants Bank 8 of America, N.A. and America’s Wholesale Lender filed a motion to dismiss for 9 failure to state a claim pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6). 10 11 (ECF No. 8.) On June 1, 2022, Defendant Ocwen filed a Motion to Dismiss for 12 failure to state a claim pursuant to Rule 12(b)(6). (ECF No. 23.) The Court granted 13 both motions to dismiss and granted Plaintiff leave to amend her Complaint. (ECF 14 No. 34.) Subsequently, Plaintiff filed her First Amended Complaint, and Defendant 15 Ocwen responded with its second Motion to Dismiss for failure to state a claim under 16 Rule 12(b)(6) (ECF No. 37). 17 On October 14, 2022, before the motion to dismiss ripened, Plaintiff filed ex 18 parte a second Application for TRO to restrain a foreclosure sale scheduled for 19 October 19, 2022. (ECF No. 40.) The Court denied Plaintiff’s second Application 20 for TRO. (ECF No. 49.) 21 Defendants Statebridge Company, LLC, Wilmington Savings Fund Society, 22 FSB, and ZBS Law, LLP subsequently filed their Motion to Dismiss. (ECF No. 52.) 23 Plaintiff ultimately filed a Notice of Dismissal against non-answering Defendants 24 (ECF No. 58) and a Motion to Dismiss answering Defendants (ECF No. 59). 25 II. LEGAL STANDARD 26 A. Dismissal Under Rule 41(a) 27 Under Rule 41(a)(1)(A), there are two ways for a plaintiff to voluntarily before the opposing party serves either an answer or a motion for summary 1 judgment. Fed. R. Civ. P. 41(a)(1)(A)(i). Second, she may file a stipulation of 2 dismissal signed by all parties who have appeared. Id. 41(a)(1)(A)(ii). 3 A plaintiff may also move for dismissal by court order. Rule 41(a)(2) states, 4 “Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff’s 5 request only by court order, on terms that the court considers proper.” Id. 41(a)(2). 6 7 B. Dismissal Under Rule 12(b)(6) A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of 8 the claims asserted in the complaint. Navarro v. Block, 250 F.3d 729, 731 (9th Cir. 9 2001). “A Rule 12(b)(6) dismissal may be based on either a ‘lack of cognizable legal 10 11 theory’ or ‘the absence of sufficient facts alleged under a cognizable legal theory.’” 12 Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008) 13 (quoting Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)). 14 A complaint must plead sufficient factual allegations to “state a claim for 15 relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 16 (cleaned up). The court must accept all factual allegations pleaded in the complaint 17 as true and must construe them and draw all reasonable inferences in favor of the 18 nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 19 1996). The court, however, need not accept conclusory allegations as true. Rather, it 20 must “examine whether conclusory allegations follow from the description of facts 21 as alleged by the plaintiff.” Holden v. Hagopian, 978 F.2d 1115, 1121 (9th Cir. 22 1992) (citations omitted). “A claim has facial plausibility when the plaintiff pleads 23 factual content that allows the court to draw the reasonable inference that the 24 defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. 25 III. ANALYSIS 26 A. Plaintiff’s Notice of Dismissal Under Rule 41(a)(1)(A) 27 The Court first considers Plaintiff’s two filings. First, Plaintiff filed a Notice No. 58.) Under Rule 41(a)(1)(A)(i), a plaintiff can file a notice of dismissal before 1 the opposing party serves an answer or a motion for summary judgment. Fed. R. Civ. 2 P. 41(a)(1)(A). A motion to dismiss for failure to state a claim does not preclude 3 voluntary dismissal under Rule 41(a)(1)(A)(i). See Swedberg v. Marotzke, 339 F.3d 4 1139, 1146 (9th Cir. 2003). Under some circumstances, a court may construe a 5 motion to dismiss under Rule 12(b)(6) as a motion for summary judgment—thereby 6 foreclosing voluntary dismissal. Id. But unless and until the court takes some action 7 to convert the motion to dismiss to a motion for summary judgment, a court must 8 give effect to a notice of voluntary dismissal under Rule 41(a)(1)(A)(i). Id. 9 In this case, all non-terminated Defendants have filed an answer except 10 11 Defendant Ocwen. (ECF No. 20.) Defendant Ocwen has filed two motions to 12 dismiss, but the Court has not taken action to convert either to a motion for summary 13 judgment. (ECF No. 23; ECF No 37.) Therefore, the Court GIVES EFFECT to 14 Plaintiff’s Notice of Voluntary Dismissal against Defendant Ocwen.1 Accordingly, 15 the Court also TERMINATES AS MOOT Defendant Ocwen’s Motion to Dismiss. 16 (ECF No. 37.) 17 B. Plaintiff’s Motion to Dismiss Under Rule 41(a)(2) 18 Plaintiff also filed a Motion to Dismiss answering Defendants pursuant to 19 Rule 41(a)(2).2 (ECF No. 59.) Rule 41(a)(2) allows a plaintiff to request a dismissal 20 “by court order, on terms that the court considers proper.” Fed. R. Civ. P. 41(a)(2). 21 The Court does not consider dismissal proper at this time. The parties and the Court 22 have expended significant resources during this litigation. Two motions to dismiss 23

24 1 The Ninth Circuit has acknowledged that this Rule could allow for forum-shopping but determined that argument “is one for the Rules Committee” and not for the courts. Swedberg, 339 25 F.3d at 1145. 2 The caption of Plaintiff’s Motion to Dismiss refers to Rule 41(a)(1)(A), but the argument 26 focuses on Rule 41(a)(2). (ECF No. 59.) Rule 41(a)(1)(A) does not provide for dismissal of 27 answering defendants without a stipulation signed by all parties. Fed. R. Civ. P. 41(a)(1)(A). Plaintiff’s Motion to Dismiss is signed only by Plaintiff’s counsel. Therefore, the Court cannot with prejudice have been fully briefed, and the Court has already granted a previous 1 Motion to Dismiss and denied an Application for TRO. As a result, the Court does 2 not find a dismissal without prejudice pursuant to Rule 41(a)(2) to be proper. 3 Plaintiff’s Motion to Dismiss is DENIED. (ECF No. 59.) 4 5 C. Defendants’ Motion to Dismiss Under Rule 12(b)(6) Defendants Statebridge Company, LLC, Wilmington Savings Fund Society, 6 FSB, and ZBS Law, LLP move to dismiss all claims against them. (ECF No. 52.) In 7 her First Amended Complaint, Plaintiff alleges (1) fraud, (2) violations of Section 8 17200 of California’s Business and Professions Code (“UCL”), (3) breach of 9 contract, (4) violations of the Real Estate Settlement Procedures Act (“RESPA”), 10 11 (5) violations of California’s Rosenthal Fair Debt Collection Practices Act 12 (“RFDCPA”) and the Fair Debt Collection Practices Act (“FDCPA”), and 13 (6) violations of the California Homeowner Bill of Rights. (FAC ¶¶ 38–87.) 14 1. Fraud 15 Plaintiff has failed to plausibly state a fraud claim. To allege a claim for fraud, 16 a plaintiff must “state with particularity the circumstances constituting fraud.” Fed. 17 R. Civ. P. 9(b). These allegations “must be accompanied by ‘the who, what, when, 18 where, and how’ of the misconduct charged.” Vess v. Ciba-Geigy Corp. USA, 317 19 F.3d 1097, 1106 (9th Cir. 2003) (quoting Cooper v. Pickett, 137 F.3d 616, 627 (9th 20 Cir. 1997)). 21 This Court previously dismissed Plaintiff’s fraud claim because the initial 22 Complaint failed to plead with requisite particularity under Rule 9(b). (ECF No. 34.) 23 Plaintiff’s First Amended Complaint ignores the Court’s admonishment to 24 “differentiate” her allegations against each defendant and “inform each defendant 25 separately of the allegations surround his alleged participation in the fraud.” (ECF 26 No. 34 (quoting Swartz v. KPMG LLP, 476 F.3d 756, 764–65 (9th Cir. 2007).) It 27 contains no new allegations regarding the puported fraud. (FAC; ECF No. 48.) Application for TRO that the First Amended Complaint does not cure the initial 1 Complaint’s deficiencies with respect to particularity. (ECF No. 47.) Thus, for the 2 reasoning included in the Court’s Order granting Defendants’ motions to dismiss 3 (ECF No. 34), the Court GRANTS Defendants’ present Motion to Dismiss with 4 respect to Plaintiff’s fraud claim. 5 6 2. California’s Unfair Competition Law Plaintiff’s claim under the UCL is predicated on her fraud claim. (FAC ¶ 81.) 7 Because Plaintiff’s fraud claim fails, so too does her UCL claim. See Krantz v. BT 8 Visual Images, L.L.C., 89 Cal. App. 4th 164, 178 (2001), as modified (May 22, 2001) 9 (holding California UCL claims “stand or fall depending on the fate of the antecedent 10 11 substantive causes of action”). Thus, the Court GRANTS Defendants’ Motion to 12 Dismiss with respect to Plaintiff’s UCL claim. 13 3. Breach of Contract and Real Estate Settlement Procedures 14 Act 15 Plaintiff’s breach of contract and Real Estate Settlement Procedures Act 16 claims are alleged only against Defendant Ocwen. (FAC ¶¶ 54, 62.) The Court 17 dismissed all claims against Defendant Ocwen supra and, therefore, these claims are 18 dismissed in their entirety without prejudice. 19 4. Violations of the California Homeowner Bill of Rights 20 Plaintiff’s California Homeowner Bill of Rights claim fails on the law. The 21 California Homeowner Bill of Rights does not apply to junior loans. See Cal. Civ. 22 Code § 2924.15. The loan at issue in this case is a junior loan. (FAC ¶¶ 3–4, 26, 46– 23 53.) Indeed, Plaintiff’s counsel conceded as much at oral argument on Plaintiff’s 24 Application for TRO. (ECF No. 47.) Therefore, the California Homeowner Bill of 25 Rights does not apply, and the Court GRANTS Defendants’ Motion to Dismiss with 26 respect to this claim as well. 27 In her opposition, Plaintiff does not refute the law on junior loans but instead 1 Cause of action which do apply to second position liens.” (ECF No. 53 at 6.) Plaintiff 7 || does not indicate which statutes might apply to junior loans and has already had the 3 Opportunity to amend her pleadings. The Court denies Plaintiff's request for leave 4 ||to amend. 5 5. Fair Debt Collection Practices Act and California’s 6 Rosenthal Fair Debt Collection Practices Act 7 Plaintiff's allegations are too vague to plausibly state an FDOCPA or RFDCPA g |{claim. This Court previously dismissed Plaintiff's FDCPA and RFDCPA claims g ||because the initial Complaint failed to “plausibly plead, beyond a conclusory 19 allegation, that Defendants are ‘debt collectors’ within the meaning of the FDCPA 11 ||and RFDCPA.” (ECF No. 34.) The First Amended Complaint added no additional 12 |{ allegations on this issue. (FAC; ECF No. 48.) Accordingly, for the reasons stated in 13 ||the Court’s previous order, Plaintiff has failed to plausibly state a claim under the 14 || FDCPA or the RFDCPA. 15 IV. CONCLUSION 16 For the foregoing reasons, the Court gives effect to Plaintiff's Notice of 17 || Voluntary Dismissal (ECF No. 58) and ORDERS the Clerk of Court to DISMISS 18 || WITHOUT PREJUDICE claims against Defendant Ocwen. The Court GRANTS 19 ||Defendants Statebridge Company, LLC, Wilmington Savings Fund Society, FSB, 20 ||and ZBS Law, LLP’s Motion to Dismiss. (ECF No. 52.) Accordingly, the Court 21 || DISMISSES WITH PREJUDICE the claims against Defendants Statebridge 22 ||Company, LLC, Wilmington Savings Fund Society, FSB, and ZBS Law, LLP. The 23 Clerk of Court is directed to close the case. 24 IT IS SO ORDERED. 25 26 || DATED: April 21, 2023 Cyillg (Mohan 6 27 United Mtates Bitrict Judge 28