Aghaji v. Bank of America

Filed 5/31/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
TIMOTHY AGHAJI et al., B261971
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC498852 (lead
v. case); and related cases BC498850,
BC498978, BC521834, BC521835,
BANK OF AMERICA, N.A., et al., GC050583, BC522150, BC522158,
BC525203, BC531302, BC531535,
Defendants and Respondents. BC531639, BC531713, BC531836,
BC534708, BC538607, BC539499,
BC541862, BC545528, BC545529,
BC545705, BC548293)
APPEAL from a judgment of the Superior Court for Los Angeles County,
Amy D. Hogue, Judge. Affirmed.
Real Estate Law Center, Erikson M. Davis; and Ronald D. Tym for Plaintiffs
and Appellants.
Bryan Cave, Robert E. Boone, Nafiz Cekirge, and Douglas E. Winter for
Defendants and Respondents Bank of America, N.A. (for itself and as successor by
merger to BAC Home Loans Servicing LP and Countrywide Bank FSB);
Countrywide Financial Corporation; and Countrywide Home Loans, Inc.
Katten Muchin Rosenman, Gregory S. Korman, Tami Kameda Sims and
Stuart M. Richter for Defendants and Respondents HSBC Mortgage Services Inc.
and HSBC Bank USA, N.A.
Wright Finlay & Zak, Jonathan D. Fink and Magdalena D. Kozinska for
Defendants and Respondents Ocwen Financial Corporation and Ocwen Loan
Servicing, LLC.
Dykema Gossett, J. Kevin Snyder and Lukas Sosnicki; Bryan Cave,
Christopher L. Dueringer and Christina Rea Snider for Defendant and Respondent
CIT Bank, N.A. (formerly known as OneWest Bank, N.A.)
Dykema Gossett, J. Kevin Snyder, Lukas Sosnicki and James M. Golden for
Defendant and Respondent Nationstar Mortgage LLC.
Severson & Werson, Jan T. Chilton and Kerry W. Franich for Defendant and
Respondent Green Tree Servicing LLC.
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2
Two-hundred-twenty-two plaintiffs, in 22 related mass actions against
various financial institutions and mortgage loan servicers, appeal from an order
dismissing those actions after the trial court sustained without leave to amend
defendants‟ demurrers to an “omnibus” third amended complaint.1 Plaintiffs are
homeowners from all over the country. Each mass action involves numerous
plaintiffs whose loans originated with and/or were serviced by a single defendant
or related affiliates. For example, the defendants in the lead case (Ahgaji et al. v.
Bank of America, N.A., et al.) are Bank of America, N.A. (Bank of America) and
several of its subsidiaries or divisions (Countrywide Financial Corporation and
Countrywide Home Loans, Inc. (collectively, Countrywide)) and affiliates or
agents (BAC Home Loan Servicing, Recontrust Company, N.A., and CTC Real
1
The cases, which were related to the lead case, Aghaji et al. v. Bank of America,
N.A., et al. (L.A.S.C. Case No. BC498852) are as follows: Asmussen et al. v. Bank of
America, N.A., et al. (L.A.S.C. Case No. BC498850); Aguila et al. v. Bank of America,
N.A., et al. (L.A.S.C. Case No. BC498978); Abeyta et al. v. Ocwen Corp. et al. (L.A.S.C.
Case No. BC521834 [consolidated with McMullen et al. v. Ocwen Financial Corp. et al.
(L.A.S.C. Case No. BC521835)]; Allgoewer et al. v. IndyMac Federal Bank, FSB et al.
(L.A.S.C. Case No. GC050583); Andrews et al. v. OneWest Bank, FSB et al. (L.A.S.C.
Case No. BC522150); Aguayo et al. v. Bank of America, N.A., et al. (L.A.S.C. Case No.
BC522158); Alvarez et al. v. HSBC Mortgage Services, Inc. et al. (L.A.S.C. Case No.
BC525203); Abbott et al. v. Bank of America, N.A., et al. (L.A.S.C. Case No.
BC531302); Holmes et al. v. Bank of America, N.A., et al. (L.A.S.C. Case No.
BC531535); Penn et al. v. Bank of America, N.A., et al. (L.A.S.C. Case No. BC531639);
Marino et al. v. Bank of America, N.A., et al. (L.A.S.C. Case No. BC531713); Simons et
al. v. Bank of America, N.A., et al. (L.A.S.C. Case No. BC531836); Amador et al. v.
Nationstar Mortgage, LLC (L.A.S.C. Case No. BC534708); Carlisle et al. v. Ocwen
Financial Corp. et al. (L.A.S.C. Case No. BC538607); Anderson et al. v. Nationstar
Mortgage, LLC (L.A.S.C. Case No. BC539499); Foster et al. v. Ocwen Financial Corp.
et al. (L.A.S.C. Case No. BC541862); Allisan et al. v. Ocwen Financial Corp. et al.
(L.A.S.C. Case No. BC545528); Baker et al. v. Nationstar Mortgage, LLC (L.A.S.C.
Case No. BC545529); Adams et al. v. Green Tree Servicing LLC (L.A.S.C. Case No.
BC545705); Butler et al. v. Nationstar Mortgage, LLC (L.A.S.C. Case No. BC548293).
Each case has between 12 and 70 named plaintiffs, and between one and six named
defendants.
3
Estate Services); all 62 of the plaintiffs had home loans that were originated by
Bank of America or Countrywide, and those loans were serviced by BAC Home
Loan Servicing, Recontrust Company, N.A., or CTC Real Estate Services.
The omnibus complaint asserted seven causes of action (for fraud,
conspiracy to commit fraud, conversion, conspiracy to convert, violation of the
Rosenthal Fair Debt Collection Practices Act (Civ. Code, § 1788, et seq.), unfair
business practices (Bus. & Prof. Code, § 17200, et seq.), and unjust enrichment),
based almost entirely on allegations that defendants lacked the authority to enforce
or service plaintiffs‟ loans due to the purported failed negotiation of plaintiffs‟
promissory notes. On appeal, plaintiffs challenge only the trial court‟s denial of
their request for leave to amend their unfair business practices cause of action (the
UCL claim) to add factual allegations to support an entirely different theory that
was suggested in seven sentences of the 29-page complaint. Plaintiffs fail,
however, to show that their proposed additional facts are sufficient to state a UCL
claim. Moreover, even if their proposed additional facts were sufficient, they
clearly demonstrate that the claim could not be prosecuted as a mass action
because the 222 plaintiffs‟ claims do not arise out of the same transaction or
occurrence, as required by Code of Civil Procedure section 378. Therefore, we
conclude the trial court did not abuse its discretion by denying plaintiffs leave to
amend their complaint.
BACKGROUND
The securitization of home mortgage loans – which helped to fuel the
housing bubble in the late 1990s and early 2000s2 – was largely ignored by the
2
See Levitin & Wachter, Explaining the Housing Bubble (2012) 100 Geo. L.J.
1177, 1182.
4
general public until the housing bubble collapsed in 2008. Since that collapse,
which resulted in a massive wave of loan defaults and home foreclosures, courts in
California (and nationwide) have been inundated with lawsuits by defaulting
homeowners seeking to avoid or challenge foreclosures by challenging the
assignments of promissory notes and deeds of trust during the securitization
process.3 In essence, the defaulting homeowners allege in those lawsuits that the
notes and deeds of trust were not validly assigned at some point in the process of
securitization, and therefore the foreclosing party did not have the authority to
foreclose.
In or around 2013, a law firm (Real Estate Law Center, PC) began filing a
series of “mass action” lawsuits (in Los Angeles Superior Court and, apparently, in
other superior courts in California) against various financial institutions or loan
servicers, with allegations similar to the wrongful foreclosure cases, but with one
critical difference: the homeowners in those lawsuits had not defaulted on their
loans and were not challenging foreclosures, but instead challenged the defendants‟
authority to collect payments on the loans. Initially, the cases filed in the Los
3
The securitization process typically involves a series of sales of the mortgage
loans. As one commentator has explained, although the process can “vary somewhat
depending on the type of entity undertaking the securitization, there is still a core
standard transaction. First, a financial institution (the „sponsor‟ or „seller‟) assembles a
pool of mortgage loans either made („originated‟) by an affiliate of the financial
institution or purchased from unaffiliated third-party originators. Second, the pool of
loans is sold by the sponsor to a special-purpose subsidiary (the „depositor‟) that has no
other assets or liabilities and is little more than a legal entity with a mailbox. This is done
to segregate the loans from the sponsor‟s assets and liabilities. Third, the depositor sells
the loans to a passive, specially created, single-purpose vehicle (SPV), typically a trust in
the case of residential-mortgage securitization. The trustee will then typically convey the
mortgage notes and security instruments to a document custodian for safekeeping. The
SPV issues certificated debt securities to raise the funds to pay for the loans. As these
debt securities are backed by the cash flow from the mortgages, they are called mortgage-
backed securities (MBS).” (Levitin, The Paper Chase: Securitization, Foreclosure, and
the Uncertainty of Mortgage Title (2013) 63 Duke L.J. 637, 671-672, fns. omitted.)
5
Angeles Superior Court were assigned to different judges, until the judge whose
ruling is at issue in this appeal ordered all of the then-pending cases in Los Angeles
(which had virtually identical allegations) related to the lead case here (Aghaji et
al. v. Bank of America, N.A., et al., L.A. Sup. Ct. Case No. BC498852). The trial
court then ordered the law firm to file a single “omnibus” complaint for the related
actions.
Plaintiffs‟ legal theories and alleged injuries had evolved over the many
iterations of the complaints in the various actions leading up to the omnibus
complaint. At first, the complaints included allegations of loan origination fraud,
predatory lending, attempts to disguise defendants‟ mortgage securitization
scheme, predatory loan modification, and fraudulent misuse of Troubled Asset
Relief Program (TARP) funds. After demurrers were sustained to the initial
complaints, plaintiffs amended the complaints and limited their scope to
allegations related to purported defects in the securitization process that they
alleged resulted in defendants‟ loss of ownership of and/or entitlement to service
plaintiffs‟ loans. After demurrers to those first amended complaints were
sustained, plaintiffs amended their complaints to add allegations that plaintiffs‟
promissory notes were not properly negotiated when they were sold as part of the
securitization process, and therefore defendants did not have authority to enforce
or service plaintiffs‟ loans. Finally, in the third amended complaint (the omnibus
complaint at issue in this appeal), plaintiffs stated what they were, and were not,
alleging: “11. Here, Plaintiffs do not dispute any entity‟s right to securitize the
original mortgages at issue herein, nor do Plaintiffs allege that the securitization
process itself renders a promissory note null and void or otherwise unenforceable.
Further, Plaintiffs are not attempting to „challenge‟ any act of securitization. [¶]
12. Plaintiffs simply allege that, as a result of the mass chaos resulting from
Plaintiffs‟ notes and trust deeds having changed hands multiple times since
6
origination, the true owner of each mortgage for each Plaintiff is unclear and very
much in dispute due to failed negotiation of the notes involved. As a result, at the
very least, Plaintiffs allege, they have been paying to Defendants loan payments
for years that Defendants are not legally or contractually entitled to or authorized
to be demanding or accepting.”
Like the previous complaints, the omnibus third amended complaint
included only generalized and conclusory allegations; there were no allegations
that were specific to any particular party (other than the description of the parties),4
nor were there any allegations identifying any specific facts that would support an
assertion of any improper negotiation. Although the vast majority of the
allegations of the 29-page complaint related to plaintiffs‟ failed negotiation theory,
there were seven sentences that alleged, again in general conclusory terms that did
not specifically relate to any plaintiff or defendant, that defendants had not
correctly or fully credited payments to the account of the plaintiff making the
payments and had charged improper fees and costs.
All of the defendants filed and/or joined in demurrers to the omnibus
complaint and each cause of action. The trial court issued a tentative ruling
sustaining the demurrers without leave to amend on the ground that plaintiffs
lacked standing to challenge the transactions by which the notes and deeds of trust
4
In describing the parties, the omnibus complaint incorporated by reference the
party descriptions in the prior complaints. With regard to plaintiffs, all of the prior
complaints except one used generic descriptions for each plaintiff, alleging, for example:
“Plaintiff [name] is an individual who resides in [place], and this Plaintiff‟s subject
mortgage is secured by the real property located at [address]. During some period of time
relevant to this litigation, Defendants have claimed to be the servicers and/or agents of
the owners of this home loan, and they have designated it as Loan No. [number]”; or, in
the case of later-filed complaints, “Plaintiff [name] is a competent adult. During some
period of time relevant to this action, Defendants acted as loan servicer or in some other
control capacity regarding this Plaintiff‟s mortgage loan that Defendants have designated
as Loan No. [number].”
7
were transferred. Before the hearing on the demurrers, plaintiffs‟ counsel filed a
declaration in response to the tentative ruling. In addition to challenging some of
the trial court‟s factual statements, counsel responded to the court‟s finding that the
complaint‟s allegations that defendants failed to properly credit payments and
charged improper fees were vague and conclusory. Counsel submitted “examples”
of how plaintiffs could amend the complaint to support those allegations, providing
some specific facts for 20 plaintiffs (out of more than 850 named plaintiffs) from
13 of the 22 cases at issue in the demurrers, and five plaintiffs from other cases that
were related to the lead case but were not included in the demurrer.5
At the hearing on the demurrers, the trial court sought to determine which
cases would be included in its ruling. The court asked plaintiffs‟ counsel if he
would object to including all of the cases that had been related up to the time of the
hearing. Counsel stated that he did object to including any case for which no
demurrer (or joinder in a demurrer) had been filed before he had filed plaintiffs‟
opposition. He explained that he had assumed that he would be allowed to file a
new omnibus complaint for the remaining cases. Although the court expressed
concern about the burden on the court, it agreed to limit its ruling to the cases in
which demurrers or joinders in demurrers had been filed before plaintiffs filed their
opposition, and to allow plaintiffs leave to amend to file another omnibus
complaint for the remaining cases.6
Following the hearing, the trial court issued its written ruling. As in its
tentative ruling, the court found that plaintiffs did not have standing to challenge
5
As of April 24, 2015, there were 39 cases in Los Angeles Superior Court that were
related to the lead case, but 17 of them were not related in time to be included in the
demurrers and thus remain pending in the trial court.
6
The omnibus complaint at issue here listed 15 cases. The trial court added seven
more cases, for a total of 22 cases that were part of its ruling.
8
alleged defective assignments of their loans. Addressing plaintiffs‟ allegation that
defendants charged improper fees and failed to credit plaintiffs‟ loan payments, the
court found that, even if it considered the proposed additional facts plaintiffs‟
counsel proffered, plaintiffs failed to state any cause of action. With regard to the
UCL claim, the court found that plaintiffs failed to show how defendants‟ actions
constitute unfair competition under Business and Professions Code section 17200
because plaintiffs did not cite to any particular law, statute, or regulation they
contend defendants violated, and did not show what misrepresentations they relied
upon or how members of the public would likely be deceived by defendants‟
conduct. Finally, the court found that, after four failed attempts to allege a
justiciable action, there was no reasonable possibility that additional amendment
would cure the defects, and therefore sustained the demurrers without leave to
amend and dismissed all 22 cases at issue. A timely notice of appeal was filed on
behalf of 242 plaintiffs.7
DISCUSSION
We begin with an observation. At the hearing on the demurrers, when
discussing which cases would be included in its order and what would be done
with the remaining cases, the trial court noted that a ruling by this court would help
to determine how the remaining cases would proceed. It is surprising, then, that
plaintiffs have not raised on appeal any challenge to the trial court‟s ruling
sustaining the demurrers, and limit their challenge to the trial court‟s denial of
leave to amend their UCL claim to assert a claim that is unrelated to the
7
We note that the appellants opening brief lists only 226 plaintiffs. After the brief
was filed, we received a request for dismissal of the appeal as to five plaintiffs; one of
those plaintiffs, however, had not been listed in the brief. Therefore, there are 222
plaintiffs who are appearing as appellants here.
9
securitization process upon which all of the previous complaints (and the
complaints in the related cases that remained) have focused. Even more surprising
is plaintiffs‟ failure to seek leave to file additional briefing in this court to address a
Supreme Court opinion that was issued the day plaintiffs filed their reply brief, in
which the Supreme Court disapproved the cases the trial court relied upon in
finding that plaintiffs had no standing to challenge the purportedly defective
assignment of their mortgage loans – the sole ground on which the trial court relied
in sustaining the demurrers to the failed negotiation claims. (See Yvanova v. New
Century Mortgage Corp. (2016) 62 Cal. 4th 919, 939, fn. 13 [disapproving Jenkins
v. JPMorgan Chase Bank, N.A. (2013) 216 Cal. App. 4th 497; Siliga v. Mortgage
Electronic Registration Systems, Inc. (2013) 219 Cal. App. 4th 75; Fontenot v. Wells
Fargo Bank, N.A. (2011) 198 Cal. App. 4th 256; and Herrera v. Federal National
Mortgage Assn. (2012) 205 Cal. App. 4th 1495].) By limiting its appeal to the
denial of leave to amend, plaintiffs have limited our ability to give the trial court
(as well as courts in other counties in which plaintiffs‟ counsel have filed similar
mass actions) the guidance it sought.8
A. The Trial Court did not Abuse its Discretion by Denying Leave to Amend
As noted, plaintiffs contend on appeal that the trial court abused its
discretion in denying leave to amend their UCL claim. They argue they could cure
the defect the trial court identified – the failure to cite to any law, statute, or
regulation – by alleging that defendants failed to fully credit payments received
from plaintiffs and charged improper fees and costs in violation of Regulation X
8
Defendants Ocwen Financial Corporation and Ocwen Loan Servicing, LLC moved
for sanctions against plaintiffs‟ counsel, arguing that this appeal was filed solely to delay
the disposition of plaintiffs‟ claims and prolong counsel‟s income stream. We deny the
motion.
10
(12 C.F.R. §§ 1024.35(b), 1024.35(e)) and Regulation Z (12 C.F.R. § 226.36(c)).
Plaintiffs‟ argument falls short, however, in two respects. First, the additional facts
that plaintiffs‟ counsel provided in his declaration are insufficient to state a cause
of action on behalf of the few plaintiffs counsel addressed in the declaration, and
there have been no facts proffered at all for the vast majority of plaintiffs who are
parties to this appeal. Second, even if plaintiffs could provide sufficient facts for
each of the 222 plaintiffs in this appeal, plaintiffs‟ claims are misjoined because
they do not “arise[] out of the same transaction, occurrence, or series of
transactions or occurrences.” (Code Civ. Proc., § 378, subd. (a)(1).)
1. Standard of Review
When a demurrer is sustained, “the plaintiff must be given leave to amend
his or her complaint when there is a reasonable possibility that the defect can be
cured by amendment. [Citations.] „The burden of proving such reasonable
possibility is squarely on the plaintiff.‟ [Citation.] [¶] „To satisfy that burden on
appeal, a plaintiff “must show in what manner he can amend his complaint and
how that amendment will change the legal effect of his pleading.” [Citation.] The
assertion of an abstract right to amend does not satisfy this burden.‟ [Citation.]
The plaintiff must clearly and specifically state „the legal basis for amendment, i.e.,
the elements of the cause of action,‟ as well as the „factual allegations that
sufficiently state all required elements of that cause of action.‟ [Citation.]”
(Maxton v. Western States Metals (2012) 203 Cal. App. 4th 81, 95.)
2. Plaintiffs Have Not Met Their Burden
In their opening brief, plaintiffs focus entirely on the regulations they assert
defendants violated, and do not address the adequacy of the facts they provided to
show such violations. In their reply brief, plaintiffs respond to several defendants‟
11
assertion that plaintiffs‟ proffered facts were insufficient because they were
conclusory by arguing that “the allegations that (1) Defendants/Respondents had
not been crediting loan payments from Plaintiffs/Appellants correctly or fully to
the account of each specific Plaintiff/Appellant involved; and (2) Defendants/
Respondents had been charging improper fees, costs and charges to
Plaintiffs/Appellants . . . are sufficient ultimate facts to support an allegation of
violation of Regulation X and Regulation Z, which in turn is a predicate to the
UCL claim based upon the unlawful prong.” We disagree.
As Bank of America explained in its respondents‟ brief, Regulation X,
which regulates the manner in which loan servicers must resolve certain errors, is
violated only when a servicer receives a “written notice from the borrower that
asserts an error and that includes the name of the borrower, information that
enables the servicer to identify the borrower‟s mortgage loan account, and the error
the borrower believes has occurred.” (12 C.F.R. 1024.35(a).) Thus, at the very
least, plaintiffs must allege facts to show that they gave the requisite notices and
that defendants failed to properly respond in order to allege violations of
Regulation X. Regulation Z, on the other hand, is a regulation under the Truth in
Lending Act (15 U.S.C. § 1601, et seq.), which applies only to creditors and their
assignees, and expressly exempts loan servicers that have no past or present
ownership in the loan at issue. (15 U.S.C. §§ 1602(g), 1641(e); Marais v. Chase
Home Finance LLC (6th Cir. 2013) 736 F.3d 711, 715-716.) Therefore, to the
extent plaintiffs allege any violation of Regulation Z, they must allege facts to
show that the defendant at issue is a present or past owner of the home loan at
issue.
In addition to alleging facts sufficient to show violations of Regulation X
and Regulation Z, plaintiffs who are not California residents must also allege facts
to show that the alleged violations occurred within California, because California‟s
12
unfair competition law does not apply extraterritorially. (See Sullivan v. Oracle
Corp. (2011) 51 Cal. 4th 1191, 1207; Northwest Mortgage, Inc. v. Superior Court
(1999) 72 Cal. App. 4th 214, 222-227.) Plaintiffs assert in their appellants‟ reply
brief that “although many of the Defendant servicers are entities formed in states
other than California and have their headquarters outside of California, they have
processing facilities and personnel in California and, upon information and belief,
that is where the misapplied payments were received or that is from where the
improper charges or improper crediting of payments occurred with respect to out
of state Plaintiffs/Appellants.” But plaintiffs‟ assertion is insufficient for two
reasons. First, plaintiffs state that many – not all – defendant servicers have
facilities and personnel in California, and therefore appear to concede that at least
some of the defendants do not. Second, plaintiffs do not disclose what information
they have that leads them to believe that the alleged violations occurred in those
California facilities. (See Gomes v. Countrywide Home Loans, Inc. (2011) 192
Cal. App. 4th 1149, 1158-1159 [“a pleading made on information and belief is
insufficient if it „merely assert[s] the facts so alleged without alleging such
information that “lead[s] [the plaintiff] to believe that the allegations are true”‟”].)
In short, plaintiffs have not shown that they can truthfully allege facts
necessary to allege a violation of Regulation X or Regulation Z in California as to
any plaintiff, let alone all plaintiffs. In fact, of the 25 plaintiffs for whom
plaintiffs‟ counsel submitted his declaration of additional facts, only eight are
parties to this appeal (two additional plaintiffs from the declaration were listed on
the notice of appeal, but are not listed in the appellants‟ opening brief). There is no
reason to believe that each of the remaining 214 plaintiffs has experienced failures
to fully credit their mortgage payments and/or purportedly improper fees or
charges, especially given that, until the trial court issued its tentative ruling on the
demurrers, the focus of all of these mass actions from the beginning has been on
13
asserted defects in the securitization process rather than improper crediting or
charges.
3. Plaintiffs’ Claims are Misjoined
While plaintiffs‟ counsel‟s declaration failed to show that plaintiffs could
allege facts sufficient to state a UCL claim, it provided indisputable proof that
plaintiffs‟ claims are misjoined, which presents further support for the denial of
leave to amend.9
Under Code of Civil Procedure section 378 (section 378), plaintiffs may join
in one action if “[t]hey assert any right to relief jointly, severally, or in the
alternative, in respect of or arising out of the same transaction, occurrence, or
series of transactions or occurrences and if any question of law or fact common to
all these persons will arise in the action.” (§ 378, subd. (a)(1).) Defendants have
argued since the start of these cases that plaintiffs were improperly joined because
each plaintiff‟s claims arose out a distinct loan transaction, secured by a distinct
property, that went through a distinct securitization process. At that time, the trial
court declined to find improper joinder because it did not believe it had a reason to
suspect that the transactions were very different from one another. (But see
Visendi v. Bank of America, N.A. (9th Cir. 2013) 733 F.3d 863, 870 [finding
misjoinder under Fed. R. Civ. P. 20 in case involving allegations of invalid
assignment of mortgages, noting that “Plaintiffs own separate and unrelated
properties across the country, they entered into separate loan transactions, and their
9
The issue of misjoinder was raised by several of the defendants in their demurrers,
but the trial court did not sustain the demurrers on that basis. Those defendants also
raised the issue in their respondents‟ brief. In their reply brief, plaintiffs argue that
defendants waived the issue by not filing a cross-appeal. Plaintiffs are mistaken.
Misjoinder is relevant to the question whether plaintiffs can amend the complaint to state
a cause of action; if, as we conclude, plaintiffs‟ claims are improperly joined, then the
answer to that question is that they cannot.
14
dealings with Defendants were necessarily varied. Nothing unites all of these
Plaintiffs but the superficial similarity of their allegations and their common choice
of counsel. Further, the three claims that Plaintiffs now assert – invalid
assignment, mistake, and negligence – each require particularized factual analysis.
Plaintiffs merely allege that Defendants violated the same laws in comparable
ways. Rule 20(a) requires more”].)
Even if it was unclear at the early stages of these cases that plaintiffs‟ claims
arose from distinct transactions presenting different issues of fact, plaintiffs‟
counsel‟s declaration removes any doubt. Each of the plaintiffs counsel addressed
had unique transactions or experiences giving rise to their alleged claims. For
example, plaintiff Isabel Felix alleged that Bank of America added fees, interest,
and other charges to her principal balance when it acted as servicer of her loan,
while plaintiff Clifton Hunter alleged that Ocwen sent him a letter stating that it
was sending a representative to his rental property to change the locks and
winterize the property, charged him for additional insurance on the property when
it was not needed, and sent a man to break into the property when no one was
there. Plaintiff Joseph Rankin, on the other hand, alleged that Bank of America
issued mortgage interest statements that under-reported the amount of mortgage he
paid, and plaintiff Fernando Burgos alleged that Nationstar charged him more than
was agreed to in a loan modification agreement. Each of these claims clearly
arises from a different transaction or occurrence and presents distinct questions of
law or fact. Therefore, even if plaintiffs presented sufficient facts to state valid
UCL claims (which they did not), they could not be presented in a joint action
under section 378.
15
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on
appeal.
CERTIFIED FOR PUBLICATION
WILLHITE, Acting P. J.
We concur:
MANELLA, J.
BOREN, J.*
*Associate Justice of the Court of Appeal, Second Appellate District, Division Two,
assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
16