Perez v. Bank of America, N.A.

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 MARIA PEREZ, Case No. 21-cv-01977-BAS-AHG 11 Plaintiff, ORDER GRANTING: 12 v. (1) DEFENDANTS BANK OF 13 BANK OF AMERICA, N.A., et al., AMERICA, N.A. AND COUNTRYWIDE HOME 14 Defendants. LOANS INC.’S MOTION TO DISMISS (ECF No. 8); AND 15 (2) DEFENDANT OCWEN LOAN 16 SERVICING, LLC’S MOTION TO DISMISS (ECF No. 23) 17 18 Defendants Bank of America, N.A. (“BofA”) and Countrywide Home Loans, Inc. 19 (“AWL”)1 moved to dismiss Plaintiff Maria Perez’s complaint (Compl., ECF No. 1) for 20 claims arising out of her home financing. (BofA’s Mot., ECF No. 8.) Due to issues with 21 service of process, Defendant Ocwen Loan Servicing, LLC (“Ocwen”) later moved to 22 dismiss the complaint on substantially similar grounds. (Ocwen’s Mot., ECF No. 23.) 23 Plaintiff opposes both motions (Pl.’s Opp’n BofA’s Mot, ECF No. 11; Pl.’s Opp’n 24 Ocwen’s Mot., ECF No. 28), and Defendants reply (BofA’s Reply, ECF No. 12; Ocwen’s 25 Reply, ECF No 29). Finding these motions suitable for determination on the merits 26 submitted and without oral argument, see Civ. LR 7.1(d)(1), and for the reasons set forth 27 1 Countrywide Home Loans, Inc. previously did business as America’s Wholesale Lender. 28 (Compl. ¶ 39; Ex. 2 to BofA’s RJN, ECF No. 8-2.) Because Plaintiff’s complaint uses the abbreviation 1 below, the Court GRANTS both motions and DISMISSES Plaintiff’s claims as to 2 Defendants BofA, AWL, and Ocwen.2 3 I. BACKGROUND 4 Plaintiff owns a home located in Calexico, California. (Compl. ¶ 1.) In connection 5 with her home purchase, Defendant AWL issued Plaintiff two loans encumbered by two 6 deeds of trust. (Id. ¶ 3.) The first deed of trust (“First Deed”) was for $204,000.00 (First 7 Deed, Ex. 13), and the second deed of trust (“Second Deed”) was for $51,000.00 (Compl. 8 ¶ 7; Second Deed, Ex. 3). Both deeds were recorded on February 28, 2007 and identify 9 their lender as AWL,4 a New York corporation, and their trustees as ReconTrust 10 Company, N.A. (“ReconTrust”) and Mortgage Electronic Registration System 11 (“MERS”). (First Deed; Second Deed.) Plaintiff alleges that “somehow Defendant 12 [BofA] became the owner of her two loans and the chain of title is unclear,” and also that 13 BofA acquired Countrywide Home Loans, Inc. and that Countrywide Home Loans, Inc. 14 “claims to somehow own AWL.” (Compl. ¶ 10.) 15 In January 2009, Plaintiff stopped making monthly payments on the Second Deed, 16 and in March 2009, she stopped making payments on the First Deed. (Id. ¶ 12.) Nearly 17 two years later, in December 2011, Plaintiff filed for bankruptcy in the Southern District 18 of California. (Id. ¶ 13.) After her bankruptcy proceedings ended, BofA allegedly 19 transferred both of Plaintiff’s loans to Ocwen. (Id. ¶ 21.) Plaintiff pleads that BofA was 20 fully aware that Plaintiff had two deeds of trust encumbering her home as both deeds of 21 22 2 Defendants submitted requests for judicial notice of documents in support of both motions to dismiss. (ECF Nos. 8-2; 23-1.) The Court GRANTS IN PART Defendants’ request for judicial notice 23 (ECF No. 8-2) as to Exhibit 2, a Fictitious Business Name Statement Renewal for AWL recorded in Calabasas, CA. The Court DENIES AS MOOT the remaining requests for judicial notice (ECF Nos. 24 8-2; 23-1) because the Court did not rely on the documents therein in resolving the pending motions to dismiss. 25 3 Unless otherwise specified, the exhibits cited herein were incorporated by reference in the 26 complaint, and were filed concurrently by Plaintiff as attachments to her Ex Parte Application for Temporary Restraining Order (ECF No. 3). 27 4 According to Plaintiff, AWL is not—and has never been—a registered corporation in New York or elsewhere. (Compl. ¶ 6.) Plaintiff alleges that because Defendant AWL never registered itself 28 as a corporation, the First and Second Deeds are “void ab initio because AWL never legally existed and 1 trust were issued by AWL, which is somehow owned by BofA. (Id. ¶ 19.) Plaintiff 2 claims that in June of 2013, Ocwen modified both of her loans and told Plaintiff that she 3 now had a single loan, for the current market value of her home, $59,500.00. (Id. ¶ 22; 4 see Ex. 9.) Ocwen allegedly represented to Plaintiff that BofA owned her Second Deed 5 of Trust and that it had been written off, and that she no longer had to pay it. (Compl. ¶ 6 22.) For ten years, Plaintiff made payments consistent with the single modified loan. (Id. 7 ¶ 24.) 8 Then, in August 2021, Plaintiff received a letter from Statebridge Company, LLC 9 (“Statebridge”) claiming that the loan relating to the Second Deed would mature on 10 March 2022, and become due and payable at that time. (Id. ¶ 25, see Ex. 13.) “Alarmed, 11 stressed, shocked, and incredulous,” Plaintiff called Shellpoint, the current servicer of her 12 modified loan who assured Plaintiff there was no second loan on her home. (Compl. ¶ 13 26.) Plaintiff also called Statebridge, but the representative could not tell her who owns 14 the loan, or how that entity acquired it. (Id.) In June 2021, the Wilmington Savings Fund 15 Society, FSB (“WSFS”) recorded a Notice of Default as to Plaintiff’s Second Deed. (Id. 16 ¶ 27; see Ex. 10.) In September 2021, Plaintiff received a Notice of Trustee sale 17 indicating intended foreclosure proceedings as to the Second Deed. (Compl. ¶ 28.) 18 Plaintiff alleges that Ocwen was the loan servicer “on behalf of the owner of the 19 First and Second [Deeds], BofA,” and that had she known the Second Deed was not part 20 of her loan modification—as she was told by Ocwen—she would have done something 21 to protect her interests. (Id. ¶ 33.) Plaintiff alleges that she did not receive a mortgage 22 statement on the Second Deed for ten years, which confirmed her belief that the loan on 23 the Second Deed was terminated, causing her to sit on her rights. (Id. ¶ 51.) 24 A. Records of Plaintiff’s Deeds of Trust 25 Plaintiff alleges that Defendant BofA filed a proof of claim on both deeds of trust 26 in her bankruptcy proceedings in December 2011, and she incorporated by reference the 27 filings in her complaint. (Id. ¶¶ 17–18; see Exs. 7, 8.) The filings show that “Bank of 28 America, N.A.” (Defendant BofA) filed a proof of claim as to the First Deed (Ex. 7), but 1 an entity called Real Time Resolutions, as agent for “BAC f/k/a Countrywide” filed the 2 proof of claim as to the Second Deed (Ex. 8). BAC f/k/a Countrywide merged into 3 Defendant BofA in June of 2011, prior to the bankruptcy proceedings. (Ex. 7.) 4 While Plaintiff’s documents support her assertion that BofA became the owner of 5 the First Deed prior to the loan modification by Ocwen in 2013, the documents are less 6 clear with respect to ownership of the Second Deed. (Compl. ¶ 10.) The public records 7 show that BAC f/k/a Countrywide—which later merged with BofA—was assigned the 8 beneficial interest in the First Deed in May of 2010 (Ex. 7), but there is no similar 9 assignment of the Second Deed. Although the proof of claim in Plaintiff’s bankruptcy 10 was filed on behalf of BAC f/k/a Countrywide, there is no record of an assignment to that 11 entity. And instead, there is a public record of an assignment of the Second Deed years 12 later in 2020 from its initial lender, AWL, and owners, MERS and ReconTrust, to 13 Wilmington Savings Fund Society, FSB, as trustee of BCMB1 Trust. (Ex. 15.) Thus, 14 the records suggest—contrary to Plaintiff’s allegations—that MERS and ReconTrust, 15 rather than BofA, owned the Second Deed at the time she received the offer from Ocwen 16 in 2013 to modify what she allegedly understood to be both of her loans.5 17 B. Procedural History 18 Plaintiff sued Defendants AWL, BofA, Ocwen, Shellpoint, MERS, Statebridge, 19 WSFS, and ZBS Law, LLP, asserting nine claims for violation of state and federal laws. 20 (See generally Compl.) The Court dismissed Defendants Shellpoint and MERS after 21 Plaintiff failed to obey court orders and prosecute her case against them. (ECF No. 27.) 22 Defendants Statebridge, WSFS, and ZBS Law answered the complaint. (ECF No. 20.) 23 24 25 5 Plaintiff pleads that the assignment of the Second Deed is void because AWL is not a corporation, and because “Plaintiff believes” that MERS did not assign it. (Compl. ¶¶ 29, 53, 59–60.) 26 On a motion to dismiss, however the Court is not compelled to accept the legal conclusion that an instrument is void. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Here, a recorded instrument— 27 incorporated by reference into the complaint—indicates that the Second Deed was assigned to WSFS in 2020, and Plaintiff has not pled any facts that plausibly cast doubt on this public record. See Steckman 28 v. Hart Brewing, Inc., 143 F.3d 1293, 1295–96 (9th Cir. 1998) (holding that the court is “not required to 1 Defendants AWL, BofA, and Ocwen moved to dismiss Plaintiff’s claims for: (1) 2 fraud; (2) negligence; (3) negligent infliction of emotional distress; (4) breach of contract; 3 (5) violation of the Real Estate Settlement Procedures Act (“RESPA”); (6) violation of 4 the Fair Debt Collection Practices Act (“FDCPA”) and California’s Rosenthal Fair Debt 5 Collection Practices Act (“RFDCPA”); (7) violation of California Business and 6 Professions Code § 17200 (“UCL”); and (8) quiet title.6 (BofA’s Mot.; Ocwen’s Mot.) 7 II. LEGAL STANDARD 8 A complaint must plead sufficient factual allegations to “state a claim to relief that 9 is plausible on its face.” Iqbal, 556 U.S. at 678 (internal quotation marks and citations 10 omitted). “A claim has facial plausibility when the plaintiff pleads factual content that 11 allows the court to draw the reasonable inference that the defendant is liable for the 12 misconduct alleged.” Id. 13 A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the 14 claims asserted in the complaint. Fed. R. Civ. P. 12(b)(6); Navarro v. Block, 250 F.3d 15 729, 731 (9th Cir. 2001). The court must accept all factual allegations pled in the 16 complaint as true and must construe them and draw all reasonable inferences therefrom 17 in favor of the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337–38 18 (9th Cir. 1996). To avoid a Rule 12(b)(6) dismissal, a complaint need not contain detailed 19 factual allegations; rather, it must plead “enough facts to state a claim to relief that is 20 plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “[A] 21 formulaic recitation of a cause of action’s elements will not do.” Id. at 545. 22 Generally, “when the legal sufficiency of a complaint’s allegations is tested by a 23 motion under Rule 12(b)(6), ‘[r]eview is limited to the complaint.’” Lee v. City of Los 24 Angeles, 250 F. 3d 668, 688 (9th Cir. 2001) (quoting Cervantes v. City of San Diego, 5 25 F.3d 1273, 1274 (9th Cir. 1993)). However, a court may also “consider certain 26 27 6 Plaintiff’s RESPA claim is alleged against BofA and Ocwen, but not AWL (Compl. ¶¶ 95– 104), while her FDCPA and RFDCPA claims are alleged against AWL and BofA, but not Ocwen (id. 28 ¶¶ 105–09). Additionally, Plaintiff’s complaint asserts a claim under California’s Homeowner’s Bill 1 materials—documents attached to the complaint, documents incorporated by reference in 2 the complaint, or matters of judicial notice—without converting the motion to dismiss 3 into a motion for summary judgment.” United States v. Ritchie, 342 F.3d 903, 908 (9th 4 Cir. 2003). 5 III. ANALYSIS 6 A. Fraud Against BofA, Ocwen, and AWL 7 In California, the elements necessary to establish fraud are (1) a misrepresentation 8 of a material fact (false representation, concealment, or nondisclosure); (2) knowledge of 9 falsity; (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) 10 resulting damage. Collins v. eMachines, Inc., 202 Cal. App. 4th 249, 259 (2011). Federal 11 Rule of Civil Procedure 9(b) requires that, “[i]n alleging fraud or mistake, a party must 12 state with particularity the circumstances constituting fraud or mistake.” Rule 9(b) 13 applies to state-law fraud causes of action brought in federal court. Vess v. Ciba-Geigy 14 Corp. USA, 317 F.3d 1097, 1103 (9th Cir. 2003). Rule 9(b) “demands that the 15 circumstances constituting the alleged fraud be specific enough to give defendants notice 16 of the particular misconduct so that they can defend against the charge and not just deny 17 that they have done anything wrong.” Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 18 (9th Cir. 2009) (internal quotations and alterations omitted) (quoting Bly–Magee v. 19 California, 236 F.3d 1014, 1019 (9th Cir. 2001)). “Averments of fraud must be 20 accompanied by ‘the who, what, when, where, and how’ of the misconduct charged.” 21 Vess, 317 F.3d at 1106 (quoting Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir. 1997)). 22 Where multiple defendants are alleged to have engaged in a fraudulent scheme, the 23 complaint need not identify false statements “made by each and every defendant.” Swartz 24 v. KPMG LLP, 476 F.3d 756, 764 (9th Cir. 2007). However, the complaint cannot 25 “merely lump multiple defendants together.” Id. Rather, the plaintiff must “differentiate 26 [her] allegations when suing more than one defendant and inform each defendant 27 separately of the allegations surrounding his alleged participation in the fraud.” Id. at 28 764–65 (internal quotations and alterations omitted) (quoting Haskin v. R.J. Reynolds 1 Tobacco Co., 995 F. Supp. 1437, 1439 (M.D. Fla. 1998)). Thus, where fraud allegations 2 against a defendant depend upon an alter-ego theory or agency relationship, the plaintiff 3 must plead with particularity the facts establishing that relationship. See RPost Holdings, 4 Inc. v. Trustifi Corp., No. CV 11-2118 PSG SHX, 2011 WL 4802372, at *4 (C.D. Cal. 5 Oct. 11, 2011) (holding that facts supporting alleged agency must be pled with 6 particularity where fraud allegations against defendant hinge on agency relationship). 7 1. BofA and Ocwen 8 Plaintiff’s fraud claims against BofA and Ocwen are based on Ocwen’s allegedly 9 false representation that Plaintiff’s loan modification encompassed both of her loans, 10 when instead, it modified only the loan secured by the First Deed. (Compl. ¶¶ 22, 33.) 11 Plaintiff’s allegations are insufficient to establish fraud because she did not identify 12 the purported Ocwen employee who made the representation or that person’s authority to 13 speak. See Celebrity Chefs Tour, LLC v. Macy’s, Inc., 16 F. Supp. 3d 1123, 1134 (S.D. 14 Cal. Apr. 25, 2014) (reasoning that “merely attributing misrepresentation to a corporate 15 entity is inadequate; a specific person must be named, or at least identified”). 16 Additionally, Plaintiff fails to adequately allege that she justifiably relied on the 17 representation that her Second Deed would be forgiven. See Reeder v. Specialized Loan 18 Servicing LLC, 52 Cal. App. 5th 795, 804 (2020) (affirming demurrer based on a lack of 19 justifiable reliance). Under California law an agreement to modify or forgive a secured 20 loan must be in a signed writing. Cal. Civ. Code § 1624. Plaintiff’s allegations fail to 21 demonstrate that her reliance on Ocwen’s oral representation was justifiable, despite that 22 it needed to be in writing to have effect. See Diep v. Wells Fargo Bank NA, No. CV 11- 23 4447-VBF(CWX), 2011 WL 13220472, at *2 (C.D. Cal. Aug. 15, 2011) (dismissing 24 fraud claim in part because “any such representations would necessarily have to be in 25 writing, as an oral modification agreement would be barred under the statute of frauds”). 26 Absent facts to suggest justifiable reliance, Plaintiff’s fraud claim against Ocwen fails. 27 With respect to BofA, Plaintiff does not allege independent fraudulent conduct, 28 rather her claim against BofA depends on her legal conclusion that Ocwen acted as 1 BofA’s agent. (Compl. ¶¶ 47, 51.) Plaintiff offers no facts to support her contention that 2 an agency relationship exists between BofA and Ocwen, yet she attributes the 3 misrepresentation about the Second Deed by Ocwen to BofA and uses the entities 4 interchangeably. (See, e.g., Compl. ¶ 57 (“This representation by BofA . . . that the loans 5 on her home were modified. . . .”) (emphasis added).) Since Plaintiff’s claim against 6 BofA is based on her claim against Ocwen and her claim fails as to Ocwen, it similarly 7 fails as to BofA. 8 Thus, the Court DISMISSES Plaintiff’s fraud claim as to Defendants Ocwen and 9 BofA for failure to state a claim. 10 2. AWL 11 Plaintiff’s briefing asserts that AWL’s misrepresentation of itself as a New York 12 Corporation in the First and Second Deeds constitutes “fraud in itself” and renders the 13 deeds void. (Pl.’s Opp’n BofA Mot. at 3–4.) The assertion that Plaintiff’s loans are void 14 because AWL never legally existed is untenable, however, since she received loan funds 15 from AWL and was able to purchase a home and reside there for over ten years. (Compl. 16 ¶¶ 2–3.) 17 Additionally, Plaintiff does not plead with particularity any of the essential 18 elements of her fraud claim against AWL. Rosal v. First Fed. Bank of California, 671 F. 19 Supp. 2d 1111, 1131 (N.D. Cal. 2009) (dismissing fraud claim where a borrower failed 20 to satisfy the heightened pleading requirements of Rule 9(b)). For example, Plaintiff did 21 not allege that she relied on AWL’s representation that it was a New York corporation in 22 any meaningful way, nor that she suffered harm because of the alleged misrepresentation. 23 Additionally, the complaint does not demonstrate that AWL’s status as a corporation 24 versus a d/b/a of a corporation was material to Plaintiff or was intended to induce Plaintiff 25 to accept loans from AWL that she otherwise would not have taken on. See Collins, 202 26 Cal. App. 4th at 259 (stating that elements necessary to establish fraud include 27 misrepresentation of a material fact and intent to induce reliance). Thus, the Court 28 DISMISSES Plaintiff’s claim of fraud as to Defendant AWL for failure to state a claim. 1 B. Negligence Against BofA, Ocwen, and AWL 2 To state a claim for negligence under California law, a plaintiff must allege (1) the 3 defendant owed the plaintiff a duty of care, (2) the defendant breached that duty, and (3) 4 the breach proximately caused the plaintiff’s damages or injuries. Lueras v. BAC Home 5 Loans Servicing, LP, 221 Cal. App. 4th 49, 62 (2013). Whether a duty of care exists is a 6 question of law to be determined on a case-by-case basis. Id. 7 Plaintiff alleges that both Ocwen and BofA engaged in negligent loan processing. 8 (Compl. ¶ 68.) In particular, she pleads that Defendants owed her a duty to exercise 9 reasonable care in processing and reviewing her loan modification, including ensuring 10 that her loan modification encompassed the First and Second Deeds and that the Second 11 Deed was written off and not assigned to WSFS. (Id. ¶ 69.) Relying on several California 12 Court of Appeal cases, Plaintiff argues that a duty of reasonable care exists in processing 13 a loan modification application when a lender has voluntarily undertaken to renegotiate 14 the loan modification. (Pl.’s Opp’n BofA Mot. 4 (citing Weimer v. Nationstar Mortg., 15 LLC, 47 Cal. App. 5th 341 (2020); Rossetta v. CitiMortgage, Inc., 18 Cal. App. 5th 628 16 (2017); Alvarez v. BAC Home Loans Servicing, L.P., 228 Cal. App. 4th 941 (2014)).) 17 The California Supreme Court, however, expressly disapproved of each of these 18 cases in Sheen v. Wells Fargo Bank, N.A., 12 Cal. 5th 905, 948 n.12 (2022). In Sheen, 19 the Supreme Court declined “to create a judicial rule imposing a duty on lenders to 20 exercise due care in processing, reviewing, and responding to loan modification 21 applications” and held that “a lender owes no tort duty sounding in general negligence 22 principles to ‘process, review, and respond carefully and completely to’ the borrower’s 23 application.” Id. at 948. Since Plaintiff has failed to allege that Defendants breached a 24 duty of care that is cognizable under California law, her negligence claim fails. 25 Thus, the Court DISMISSES Plaintiff’s negligence claim as to Defendants Ocwen 26 and BofA. Although asserted against Defendant AWL, Plaintiff’s claim for negligence 27 does not mention AWL, nor allege any negligent conduct by AWL. (Compl. ¶¶ 67–73.) 28 As such, the Court DISMISSES this claim against AWL as well. 1 C. Negligent Infliction of Emotional Distress Against BofA, Ocwen, and AWL 2 3 The Court similarly DISMISSES Plaintiff’s claim for negligent infliction of 4 emotional distress against Ocwen, BofA, and AWL because Plaintiff’s negligence claim 5 fails, and California law does not recognize an independent tort of negligent infliction of 6 emotional distress. Delfino v. Agilent Techs., Inc., 145 Cal. App. 4th 790, 818 (2006); 7 see also Belen v. Ryan Seacrest Prods., LLC, 65 Cal. App. 5th 1145, 1165–66 (2021) 8 (striking cause of action for negligent infliction of emotional distress from complaint 9 since no such independent tort exists). 10 D. Breach of Contract Against BofA and Ocwen 11 To state a claim for breach of contract under California law, a plaintiff “must plead 12 and prove (1) a contract, (2) plaintiff’s performance or excuse for non-performance, (3) 13 defendant’s breach, and (4) damages[.]” Troyk v. Farmers Grp., Inc., 171 Cal. App. 4th 14 1305, 1352 (2009). Plaintiff claims that BofA breached the promise made by Ocwen to 15 forgive the Second Deed when BofA assigned the Second Deed to WSFS. (Compl. ¶¶ 16 89–91.) There are several problems with Plaintiff’s theory. 17 First, Ocwen’s alleged promise to forgive the Second Deed is unenforceable since 18 it was not in writing. See Basham v. Pac. Funding Grp., No. 2:10-CV-96 WBS GGH, 19 2010 WL 2902368, at *6 (E.D. Cal. July 22, 2010). Plaintiff does not allege that Ocwen 20 provided her with a writing confirming that the Second Deed was forgiven. In the case 21 of an oral loan modification agreement, “[a]bsent a writing, there can be no contract, 22 much less a breach of contract.” Id.; see also Justo v. Indymac Bancorp, No. 9–1116, 23 2010 WL 623715, at *7 (C.D. Cal. Feb. 19, 2010) (dismissing with prejudice a claim that 24 defendant breached an oral contract to modify plaintiff’s loan and prevent foreclosure 25 proceedings). Thus, Plaintiff’s breach of contract claim fails since Ocwen’s alleged 26 promise to forgive the Second Deed is unenforceable. 27 Second, Plaintiff’s allegations that Defendant BofA assigned the Second Deed to 28 WSFS are belied by the public records Plaintiff attached to the complaint. (See Ex. 7, 8, 1 15.) The records provide that ReconTrust and MERS owned the Second Deed at the 2 time of Ocwen’s loan modification and that these entities assigned the Second Deed to 3 WSFS in 2020. (Ex. 15.) Thus, Plaintiff’s theory that BofA breached a contract by failing 4 to recognize that the Second Deed had been written off by Ocwen and instead assigning 5 it to WSFS is implausible. See Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295–96 6 (9th Cir. 1998) (holding that the court is “not required to accept as true conclusory 7 allegations which are contradicted by documents referred to in the complaint”). 8 Thus, the Court DISMISSES Plaintiff’s breach of contract claims against BofA 9 and Ocwen for failure to state a claim. 10 E. Violation of RESPA Against BofA and Ocwen 11 Plaintiff attempts to state claims under RESPA against Defendants Ocwen and 12 BofA. (Compl. ¶¶ 95–104.) Her claims fail, however, because she does not identify any 13 provision of RESPA that BofA or Ocwen plausibly violated. Her claims are once again 14 based on the alleged representation by Ocwen that her loan modification would include 15 the Second Deed. (Id. ¶ 98.) However, Plaintiff fails to allege how or why Ocwen’s 16 failure to include the Second Deed in the loan modification constitutes a violation of 17 RESPA by Ocwen, let alone BofA. 18 Instead, Plaintiff pleads that “the [non-moving] Defendants who want to foreclose 19 on Plaintiff’s home state that she owes more monies than were revealed by Ocwen, AWL, 20 and BofA when Plaintiff got her loan modification.” (Id. ¶ 99.) She claims that “under 21 Regulation X § 1204.17(g) an escrow account cannot be started unless a 12-month 22 projection of payments is provided to Plaintiff,” but that she was never provided with the 23 requisite “Annual Escrow Statement.” (Id. ¶¶ 100–01.) 24 Plaintiff’s complaint lacks the basic facts necessary to state a claim against BofA 25 or Ocwen under the cited regulation. For instance, Plaintiff does not identify what escrow 26 account was started without a 12-month projection of payments or which defendants 27 failed to provide her with the requisite statement. Plaintiff’s RESPA claims against 28 Ocwen and BofA are not plausible on the facts she pleads. Therefore, the Court 1 DISMISSES these claims. 2 F. Violation of FDCPA and RFDCPA Against BofA and AWL 3 Plaintiff also brings claims against Defendants BofA and AWL for violation of 4 FDCPA and California’s analogous statute RFDCPA. To be liable for a violation of 5 FDCPA or RFDCPA, the defendant must—as a threshold requirement—be a “debt 6 collector” within the meaning of the Acts. Heintz v. Jenkins, 514 U.S. 291, 294 (1995); 7 Cal. Civ. Code § 1788.2(c). While Plaintiff does not allege Defendants violated any 8 specific provision of RFDCPA, she claims Defendants BofA and AWL violated these 9 FDCPA provisions: (1) 15 U.S.C. § 1692e, which prohibits a debt collector from using 10 false, deceptive, or misleading representations in connection with the collection of a debt; 11 and (2) 15 U.S.C. § 1692d, which prohibits a debt collector from engaging in harassment, 12 oppression, or abuse in connection with the collection of a debt. (Compl. ¶ 108.) Plaintiff 13 pleads specifically that “the debt Defendants want to collect is the Second Deed.” (Id. ¶ 14 107.) 15 Plaintiff’s claims fail because she does not plausibly plead, beyond a conclusory 16 allegation, that Defendants are “debt collectors” within the meaning of FDCPA and 17 RFDCPA. See Ines v. Countrywide Home Loans, Inc., No. 08CV1267 WQH (NLS), 18 2009 WL 690108, at *4 (S.D. Cal. Mar. 12, 2009) (finding a conclusory allegation that 19 Defendant was a debt collector to be insufficient under FDCPA and RFDCPA and 20 dismissing claims as a result). Moreover, despite identifying the Second Deed as the debt 21 being wrongfully collected in violation of FDCPA and RFDCPA (Compl. ¶ 107), 22 Plaintiff does not allege that BofA or AWL attempted to collect on the Second Deed, let 23 alone that either did so in a deceptive or harassing manner. Rather, Plaintiff alleges that 24 Defendants Statebridge and WSFS initiated proceedings to collect on the Second Deed. 25 (Id. ¶¶ 25–29.) The Court finds, therefore, that Plaintiff’s FDCPA and RFDCPA claims 26 fail against Defendants BofA and AWL and DISMISSES the claims. 27 28 1 G. Violation of UCL Against BofA, Ocwen, and AWL 2 Plaintiff’s claim for violation of California Business and Professions Code § 17200 3 (“UCL”) fails because it is predicated on claims the Court has already deemed 4 implausible. California’s UCL “does not proscribe specific practices”; rather, “it defines 5 ‘unfair competition’ to include ‘any unlawful, unfair or fraudulent business act or 6 practice.’” Cel–Tech Commc’ns, Inc. v. LA Cellular Tel. Co., 20 Cal. 4th 163, 180 (1999). 7 Although UCL’s coverage is “sweeping, embracing anything that can properly be called 8 a business practice and that at the same time is forbidden by law,” the breadth of § 17200 9 does not give a plaintiff license to “plead around” the absolute bars to relief contained in 10 other possible causes of action by recasting those causes of action as ones for unfair 11 competition. Glenn K. Jackson Inc. v. Roe, 273 F.3d 1192, 1203 (9th Cir. 2001) (citing 12 Cel–Tech, 973 P.2d at 527). 13 Here, Plaintiff claims that Defendants’ business practices were unlawful in 14 violation of Code of Civil Procedure § 32947 (Compl. ¶ 112) and unfair in violation of 15 Civil Code § 15728 (id. ¶ 114). Plaintiff does not explain how Defendants violated these 16 statutes nor did she bring a substantive claim based on either law. The Court is perplexed 17 by Plaintiff’s assertion that Defendants have violated California’s procedural law 18 authorizing punitive damages after a finding of malice, oppression, or fraud since there 19 has been no such finding. To the extent that Plaintiff is using these statutes to claim that 20 Defendants’ conduct was fraudulent in violation of UCL, the Court has already found 21 that Plaintiff failed to sufficiently plead her fraud claim as to Defendants BofA, Ocwen, 22 and AWL. 23 As such, the Court DISMISSES Plaintiff’s UCL cause of action for failure to state 24 a claim against Defendants AWL, BofA, and Ocwen. 25 26 27 7 California Code of Civil Procedure § 3294 authorizes punitive damages in cases where it is 28 established by clear and convincing evidence that a defendant acted with fraud, oppression, or malice. 1 H. Quiet Title Against BofA, Ocwen, and AWL 2 Finally, Plaintiff brings a claim against “all Defendants as to the Second Deed of 3 Trust” for quiet title. A quiet title action is a statutory action that seeks to declare the 4 rights of the parties in realty. Cal. Civ. Proc. Code § 760.020; W. Aggregates, Inc. v. Cty. 5 of Yuba, 101 Cal. App. 4th 278, 305 (2002). The purpose of a quiet title action is to 6 determine any adverse claim to the property that the defendant may assert, and to declare 7 and define any interest held by the defendant. Akley v. Bassett, 68 Cal. App. 270, 287 8 (1924). Here, Plaintiff has failed to plausibly plead that Defendants Ocwen, AWL, and 9 BofA made adverse claims to her property vis a vis the Second Deed. Instead, she alleges 10 that Defendants Statebridge and WSFS claim to hold the Second Deed and intend to 11 foreclose. Further, the Court notes that an action to quiet title is inappropriate where 12 Plaintiff’s intent is to obtain cancellation of an instrument that creates a cloud on her title 13 as opposed to a determination of rights arising out of a mistake in the creation, execution, 14 or recordation of an instrument. See Robin v. Crowell, 55 Cal. App. 5th 727, 741 (2020) 15 (“A separate type of action is authorized to obtain cancellation of an instrument that 16 creates a cloud on the plaintiff’s title.”); compare Cal. Civ. Proc. Code § 706.020, with 17 Cal Civ. Code § 3412. Here, since Plaintiff requests a declaration “that there is no Second 18 Deed of Trust encumbering her property,” her action for quiet title is misplaced. 19 Therefore, the Court DISMISSES Plaintiff’s claim for quiet title against 20 Defendants BofA, Ocwen, and AWL. 21 // 22 // 23 // 24 // 25 // 26 // 27 // 28 // 1 CONCLUSION 2 For the reasons set forth in this Order, the Court GRANTS IN FULL Defendants’ 3 || motions to dismiss (ECF Nos. 8, 23) and DISMISSES WITHOUT PREJUDICE cach 4 || of Plaintiff's claims against Defendants Ocwen, BofA, and AWL. The Court GRANTS 5 || Plaintiff leave to amend her complaint to attempt to cure the pleading deficiencies noted 6 || by the Court in this Order. See Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). If 7 || Plaintiff chooses to amend her complaint, she must file the amended complaint no later 8 || than September 16, 2022. 9 IT IS SO ORDERED. 10 11 || DATED: August 26, 2022 (ip { hha (By f □□ 12 How. Cynthia Bashant 3 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _15—