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Griley v. National City Mortgage

September 13, 2010



Plaintiff Paul Griley brought this action against defendants National City Mortgage, National City Bank of Indiana ("National City Bank") (both defendants sometimes collectively referred to as "National"), PNC Mortgage Group ("PNC"), Green Tree Servicing, LLC ("Green Tree"), and Fannie Mae, arising out defendants' allegedly wrongful filing of a notice of default ("NOD") on plaintiff's home. Presently before the court is defendants Green Tree and Federal National Mortgage Association (Fannie Mae)'s motion to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).

I. Factual and Procedural Background

Plaintiff entered into a mortgage with National for approximately $220,273.80 on January 30, 2006 for his property located at 7071 Demaret Drive in Sacramento, California. (Compl. ¶¶ 20-21.) The loan held a fixed interest rate of 5.170 percent, with total monthly payments of $1,532.71. (Id. ¶ 21.) Plaintiff alleges that Fannie Mae may be the actual note holder. (Id.) Green Tree allegedly sent plaintiff a letter on November 13, 2009, stating that National had sold it the servicing rights to plaintiff's loan. (Id. ¶ 23.) Plaintiff alleges that Green Tree subsequently sent plaintiff monthly billing statements which did not reflect the true monthly payment owed under the loan and varied in amount month to month. (Id. ¶¶ 24, 26, 27.) Plaintiff allegedly made contact with Green Tree over the phone to correct the billing statement error, and was told that the error would be corrected. (Id. ¶ 25.) Plaintiff alleges that he continued making his monthly payments of $1,532.71. (Id. 24.)

Green Tree allegedly began sending plaintiff letters indicating he was behind on his monthly mortgage payments, and sent plaintiff a NOD on February 11, 2010. (Id. ¶¶ 28, 30-31.) Plaintiff alleges he made contact with Green Tree regarding these discrepancies, was told the errors were due to the transfer of the servicing rights of his loan from National, and was told the errors on his account would be fixed and that he was current on his loan. (Id. ¶¶ 28-29, 35.)

In March of 2010, Green Tree allegedly continued sending plaintiff incorrect monthly billing statements that indicated plaintiff was behind on his mortgage. (Id. ¶¶ 37-38.) Plaintiff alleges that he made contact with Green Tree and was again told his account was in good standing and that the errors on his account would be fixed. (Id. ¶¶ 39-40.) In April of 2010, plaintiff was allegedly told by Green Tree that he was behind on his mortgage by over $7,000, but was subsequently told that they were trying to repair his account. (Id. ¶¶ 41-43.) Plaintiff alleges he remains current on his mortgage. (Id. ¶ 45.)

Plaintiff filed this action on May 17, 2010, alleging causes of action for fraud and conspiracy to commit fraud, violation of California Civil Code section 2923.5, violation of California's Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code §§ 17200-17210, violation of the Fair Credit Reporting Act, 16 U.S.C. §§ 1681-1681x, defamation, false light, and breach of contract and anticipatory repudiation. Defendants Green Tree and Fannie Mae now move to dismiss those claims against them in the Complaint.*fn1

II. Discussion

On a motion to dismiss, the court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322 (1972). To survive a motion to dismiss, a plaintiff needs to plead "only enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This "plausibility standard," however, "asks for more than a sheer possibility that a defendant has acted unlawfully," and where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 556-57).

In general a court may not consider items outside the pleadings upon deciding a motion to dismiss, but may consider items of which it can take judicial notice. Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994). A court may take judicial notice of facts "not subject to reasonable dispute" because they are either "(1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201. Green Tree and Fannie Mae submitted a request for judicial notice, asking the court to take judicial notice of two publically recorded documents related to plaintiff's mortgage. (Docket No. 7.) The court will take judicial notice of these documents, since they are matters of public record whose accuracy cannot be questioned. See Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001).

A. Fraud and Conspiracy To Commit Fraud Claim

In California, the essential elements of a claim for fraud are "(a) a misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or 'scienter'); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage." In re Estate of Young, 160 Cal. App. 4th 62, 79 (2008). Under the heightened pleading requirements for claims of fraud under Federal Rule of Civil Procedure 9(b), "a party must state with particularity the circumstances constituting the fraud." Fed. R. Civ. P. 9(b). A plaintiff must include the "who, what, when, where, and how" of the fraud. Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003) (citation omitted); Decker v. Glenfed, Inc., 42 F.3d 1541, 1548 (9th Cir. 1994).

Conspiracy is simply a legal doctrine that establishes joint and several liability by the conspirators for an underlying tort. See Entm't Research Group v. Genesis Creative Group, 122 F.3d 1211, 1228 (9th Cir. 1997). A conspiracy to commit a tort therefore requires the commission of the actual underlying tort, although every member of the conspiracy need not commit all elements of the tort individually so long as a conspiracy has been formed and he or she acts in furtherance of its design. See Applied Equip. Corp. v. Litton Saudi Arabia Ltd., 7 Cal. 4th 503, 510-11 (1994); see also Doctors' Co. v. Superior Court, 29 Cal. 3d 39, 44 (1989). In a case like this, "[w]here multiple defendants are asked to respond to allegations of fraud, the complaint must inform each defendant of his alleged participation in the fraud." Ricon v. Reconstrust Co., No. 09-937, 2009 WL 2407396, at *3 (S.D. Cal. Aug. 4, 2009) (quoting DiVittorio v. Equidyne Extractive Indus., 822 F.2d 1242, 1247 (2d Cir. 1987)).

Plaintiff alleges that Green Tree committed fraud when it conspired with the other defendants to harm plaintiff by never intending to properly service his loan and eventually foreclose on him. (Compl. ¶¶ 47-48.) By incorporating the first forty-five paragraphs of his Complaint, plaintiff also alleges that Green Tree through its representatives made multiple representations to plaintiff that his account was in good standing and that they were trying to fix his account. (Id. ¶¶ 1-45.) Plaintiff identifies the dates and contents of multiple phone calls and identifies the customer service representative he spoke with for several of those phone calls. (Id. ¶¶ 29, 35, 39-41, 43-44.) Plaintiff alleges that he continued to make his monthly mortgage payments despite the continued errors on his account because he was assured that the problems with his account would be fixed and that his account was in good standing. (Id. 25.) Plaintiff's pleading therefore satisfies both the elements of fraud and the heightened pleading standard of Rule 9(b).

Outside of the conclusory allegation that Fannie Mae may be the owner of the note securing plaintiff's loan, the Complaint does not plead precisely how Fannie Mae participated in the alleged fraud. All of the fraudulent actions alleged in plaintiff's claim were allegedly taken by Green Tree and National. The Complaint does not specify what, if any, independent fraudulent representations Fannie Mae made to plaintiff, who made them, or when they were made. Without greater factual enhancement, the mere assertion that Fannie Mae conspired with Green Tree and other defendants to defraud plaintiff fails to inform Fannie Mae of ...

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