Randall v. Ditech Fin., LLC

233 Cal. Rptr. 3d 271, 23 Cal. App. 5th 804
CourtCalifornia Court of Appeal, 5th District
DecidedMay 24, 2018
DocketD072142
StatusPublished
Cited by2 cases

This text of 233 Cal. Rptr. 3d 271 (Randall v. Ditech Fin., LLC) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Randall v. Ditech Fin., LLC, 233 Cal. Rptr. 3d 271, 23 Cal. App. 5th 804 (Cal. Ct. App. 2018).

Opinion

McCONNELL, P.J.

*806I

INTRODUCTION

D.C. Randall, Jr., appeals from a judgment dismissing his operative second amended complaint (complaint) against Ditech Financial, LLC (Ditech) after *807the trial court sustained Ditech's demurrer to the *274complaint without leave to amend. Randall contends the court erred in its ruling as to his causes of action for violation of the federal Fair Debt Collection Practices Act (FDCPA; 15 U.S.C. § 1692 et seq. )1 and for violation of the state unfair competition law (UCL; Bus. & Prof. Code, § 17200 et seq. ) because these causes of action stated or can be amended to state viable claims.

We conclude the complaint stated a claim under section 1692f(1) of the FDCPA and can be amended to state a claim under section 1692f(6). Consequently, the complaint can also be amended to state a claim under the UCL. We therefore reverse the judgment and remand the matter to the court with directions to conduct further proceedings consistent with this decision.

II

BACKGROUND

A

According to the allegations in the complaint, which we must accept as true for purposes of this appeal ( Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924, 199 Cal.Rptr.3d 66, 365 P.3d 845 ), Ditech is a loan servicer and attempts to collect debts on behalf of itself and others in the regular and ordinary course of its business. Ditech services a loan secured by a deed of trust on Randall's home. Ditech began servicing the loan after Randall had defaulted on the loan.

Following Randall's default, the trustee recorded a notice of default with intent to sell. Approximately two years later, the trustee recorded a notice of trustee's sale, scheduling Randall's home for public auction 21 days later. Randall subsequently received notice the foreclosure sale was postponed for 37 days.

Meanwhile, Ditech advised Randall of the necessary payments to reinstate his mortgage, which included improper fees and charges. Thirty-nine days prior to the foreclosure sale, Randall paid Ditech $20,664.36 in three installments. Ditech accepted the payments, but did not cancel the foreclosure sale.

Randall contacted Ditech multiple times about the foreclosure sale and his mortgage reinstatement. He also enlisted the help of a real estate agent, who *808called Ditech eight times in the month preceding the foreclosure sale. Two weeks before the foreclosure sale, the real estate agent sent Ditech a written "notice of error" regarding Ditech's failure to cancel the sale. Ditech never replied to the notice.

During a phone call one week before the foreclosure sale, a Ditech representative stated Randall should be current on his mortgage and the foreclosure sale should be cancelled. Although the representative stated Randall would receive a return phone call later that day regarding the foreclosure sale, the phone call never came.

The next business day, Randall contacted Ditech again. The representative he spoke with stated she had no knowledge of the foreclosure sale and could not confirm its cancellation. The representative also refused to provide Randall with his current loan balance. She told him his account needed to be audited before she could provide him with the information. The same day, the trustee informed Randall that Ditech had neither cancelled the foreclosure sale nor communicated anything to *275the trustee about the reinstatement of Randall's loan.

Three days later and one day before the foreclosure sale, Randall filed the instant action. The next day-the day of the scheduled foreclosure sale and 39 days after Randall reinstated his loan-Ditech rescinded the notice of default and cancelled the foreclosure sale.

B

The complaint asserted causes of action for negligence and for violating the Americans with Disabilities Act ( 42 U.S.C. § 12101 et seq. ), the Unruh Civil Rights Act ( Civ. Code, § 51 et seq. ), the Elder and Dependent Adult Civil Protection Act ( Welf. & Inst. Code, § 15600 et seq. ), California foreclosure law, the FDCPA, the Rosenthal Fair Debt Collection Practices Act ( Civ. Code, § 1788 et seq. ), and the UCL. Ditech demurred to the complaint, arguing the complaint did not state sufficient facts to constitute any viable causes of action.

The court found deficiencies in each cause of action and sustained Ditech's demurrer without leave to amend.2 As relevant to this appeal, the court found the FDCPA cause of action was incurably deficient because the code section *809referenced in it, section 1692f(1), does not apply to nonjudicial foreclosure activity and Randall's allegations of overpaying to reinstate his loan were not sufficiently specific. The court found the UCL cause of action was incurably deficient because "there is no underlying wrongdoing alleged."

III

DISCUSSION

"The standards for reviewing a judgment of dismissal following the sustaining of a demurrer without leave to amend are well settled. ' " 'We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.' [Citation.] Further, we give the [complaint] a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the [complaint] states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff." ' " ( Finch Aerospace Corp. v. City of San Diego (2017) 8 Cal.App.5th 1248, 1251-1252, 214 Cal.Rptr.3d 628.)

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Jackson v. Specialized Loan Servicing CA4/2
California Court of Appeal, 2021

Cite This Page — Counsel Stack

Bluebook (online)
233 Cal. Rptr. 3d 271, 23 Cal. App. 5th 804, Counsel Stack Legal Research, https://law.counselstack.com/opinion/randall-v-ditech-fin-llc-calctapp5d-2018.