Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Paul Griley, Individually and On Behalf of v. National City Mortgage

January 18, 2011

PAUL GRILEY, INDIVIDUALLY AND ON BEHALF OF THE GENERAL PUBLIC OF THE STATE OF CALIFORNIA,
RE: PLAINTIFF,
v.
NATIONAL CITY MORTGAGE, A DIVISION OF NATIONAL CITY BANK OF INDIANA; NATIONAL CITY BANK OF INDIANA; PNC MORTGAGE CORP; GREEN TREE SERVICING, LLC; FANNIE MAE, AND DOES 1 TO 50, DEFENDANTS.



----oo0oo----

MEMORANDUM AND ORDER MOTION TO DISMISS

----oo0oo----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 Corp, Green Tree Servicing, LLC ("Green Tree"), and Fannie Mae, arising from defendants' allegedly wrongful filing of a notice of default on plaintiff's home. Presently before the court is Green Tree and Federal National Mortgage Association's ("Fannie Mae") motion to dismiss the First Amended Complaint ("FAC") pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. Plaintiff's attorney filed no opposition to the motions, and defendants' attorney failed to appear for the hearing. The court accordingly took the motions under submission.

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. (FAC ¶¶ 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 is the actual note holder. (Id.) Fannie Mae allegedly "hired" National to service the loan. (Id. ¶ 22.) Green Tree allegedly sent plaintiff a letter on November 13, 2009, stating that National had sold Green Tree the servicing rights to plaintiff's loan. (Id. ¶ 30.) Between November of 2009 to February of 2010, Green Tree allegedly sent plaintiff monthly billing statements which did not reflect the correct monthly payment owed under the loan and which varied in amount month from month. (Id. ¶¶ 31, 33-35, 37.) Plaintiff allegedly made contact with Green Tree over the phone to correct the billing statement errors, and was told that the errors would be corrected. (Id. ¶¶ 32-36.) Plaintiff alleges that he continued making his monthly payments of $1,532.71. (Id. ¶¶ 29, 31.)

On or about February 11, 2010, Green Tree allegedly sent plaintiff a notice of default ("NOD"). (Id. ¶¶ 38, 40-41.) Plaintiff alleges that he made contact with Green Tree regarding the billing errors on or about February 12, 2010, and was told that the errors were due to the transfer of the servicing rights of his loan from National, the errors would be fixed, and he was current on his loan. (Id. ¶ 42.)

In March of 2010, Green Tree allegedly sent plaintiff a monthly billing statement and letter incorrectly indicating that plaintiff was behind on his payments. (Id. ¶ 44.) 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. ¶¶ 46-47.) In April of 2010, plaintiff was allegedly told by Green Tree that he was behind on his mortgage by over $6,000.00, but was subsequently told that they were trying to repair his account. (Id. ¶¶ 48-51.) Plaintiff alleges that he remains current on his mortgage. (Id. ¶ 52.) Green Tree allegedly has reported to various credit reporting agencies that plaintiff has been late on his payments, which has allegedly resulted in damage to plaintiff's reputation. (Id. ¶¶ 84-85, 88, 99, 102.)

Plaintiff filed this action on May 17, 2010, alleging claims for fraud and conspiracy to commit fraud, "violation of California Civil Code section 2923.5 et seq./request for declaratory relief,"*fn1 violations of California's Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code §§ 17200-17210, violation of the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. §§ 1681-1681x, defamation, false light, and breach of contract/anticipatory repudiation. (Docket No. 1.) On September 14, 2010, the court granted Green Tree and Fannie Mae's motion to dismiss the initial Complaint as to Fannie Mae with respect to all claims against it, and as to Green Tree with respect to the the UCL, FCRA,*fn2 and breach of contract/anticipatory repudiation claims. (Sept. 14, 2010, Order (Docket No. 16).) Plaintiff then filed the FAC. Presently before the court is Green Tree and Fannie Mae's joint motion to dismiss the FAC pursuant to Rule 12(b)(6). Fannie Mae moves to dismiss all claims against it, and Green Tree moves to dismiss the UCL, FCRA, and breach of contract/anticipatory repudiation claims.

II. Discussion

To survive a motion to dismiss, a plaintiff must 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," Ashcroft v. Iqbal, --- U.S. ----, 129 S. Ct. 1937, 1949 (2009), 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 of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557). In deciding whether a plaintiff has stated a claim, the court must assume that the plaintiff's allegations are true and draw all reasonable inferences in the plaintiff's favor. Usher v. City of L.A., 828 F.2d 556, 561 (9th Cir. 1987). However, the court is not required to accept as true "allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (internal quotation mark omitted).*fn3

A. UCL Claims against Green Tree A private plaintiff has standing under the UCL only if he "suffered injury in fact and . . . lost money or property as a result of the unfair competition." Cal. Bus. & Prof. Code § 17204. The UCL requires a loss of "money or property" sufficient to constitute an "injury in fact" under Article III of the Constitution and also requires a "causal connection" between the UCL violation and the injury in fact. Rubio v. Capital One Bank, 613 F.3d 1195, 1203 (9th Cir. 2010). In the context of a consumer action under the fraudulent prong of the UCL, the causal connection required is actual reliance. In re Tobacco II Cases, 46 Cal. 4th 298, 326 (2009). But see id. at 326 n.1 (limiting the actual reliance definition of causation to circumstances in which "a UCL action is based on a fraud theory involving false advertising and misrepresentations to consumers").

The UCL prohibits "any unlawful, unfair, or fraudulent business act or practice." Cal-Tech Commc'ns, Inc. v. L.A. Cellular Tel. Co., 20 Cal. 4th 163, 180 (1999). "By proscribing 'any unlawful' business practice, section 17200 borrows violations of other laws and treats them as unlawful practices that the unfair competition law makes independently actionable." Id. (internal quotation marks omitted). "Fraudulent" as used in the UCL "does not refer to the common law tort of fraud" but only requires a showing that members of the public "are likely to be deceived." Puentes v. Wells Fargo Home Mortg., Inc., 160 Cal. App. 4th 638, 645 (4th Dist. 2008) (internal quotation marks omitted). "A plaintiff must state with reasonable particularity the facts supporting the statutory elements of the violation." Khoury v. Maly's of Cal., Inc., 14 Cal. App. 4th 612, 619 (2d Dist. 1993).

Even though fraud is not a necessary element of a UCL claim, when "the plaintiff [] allege[s] a unified course of fraudulent conduct and rel[ies] entirely on that course of conduct as the basis of a claim," the claim is "said to be 'grounded in fraud' or to 'sound in fraud,' and the pleading of that claim as a whole must satisfy the particularity requirement of Rule 9(b)."*fn4 Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1103-04 (9th Cir. 2003); see also id. 1104 (explaining that when the "plaintiff [] choose[s] not to allege a unified course of fraudulent conduct in support of a claim, but rather to allege some fraudulent and some non-fraudulent conduct," then "only the allegations of fraud are subject to Rule 9(b)'s heightened pleading requirements"); see, e.g., Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir. 2009) (applying Rule 9(b) to UCL claim). Under Rule 9(b), a plaintiff must include "the who, what, when, where, and how" of the misconduct charged. Vess, 317 F.3d at 1106 (quoting Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir. 1997)).

Here, plaintiff brings a UCL claim under the unlawful prong and a separate UCL claim under the fraudulent prong. Green Tree's only argument against the UCL claim under the unlawful prong is that plaintiff lacks standing because he has not sufficiently alleged a loss of money or property. (Green Tree & Fannie Mae's Notice of Mot. & Mot. to Dismiss Pl.'s FAC for Failure to State a Claim upon which Relief can be Granted ("Defs.' Mot.") at 6:12-7:2 (Docket No. 18).) However, plaintiff has alleged that he continued making what he believed were his correct monthly payments following assurances from Green Tree that his account remained in good standing and Green Tree filed a NOD, the first stage in initiating a foreclosure. These factual allegations plausibly suggest that plaintiff has suffered either a loss of money or property, even if Green Tree has not actually foreclosed on the property. See, e.g., Sullivan v. Washington Mut. Bank, FA, No. C-09-2161, 2009 WL 3458300, at *4 (N.D. Cal. Oct. 23, 2009) ("[N]o foreclosure has taken place and therefore, it may be argued that Ms. Sullivan has not actually lost any property as a technical matter. On the other hand, it is undisputed that foreclosure proceedings have been initiated which puts her interest in the property in jeopardy. Th court concludes that this fact is sufficient to establish standing."). Accordingly, because plaintiff has sufficiently alleged a loss of money or property, the court will deny Green Tree and Fannie Mae's motion to dismiss the UCL claim under the unlawful prong as to Green Tree.

As to the UCL claim under the fraudulent prong, by incorporating the general allegations, plaintiff alleges that Green Tree through its representatives made multiple representations to plaintiff that his account was in good standing, despite monthly billing statements and letters indicating otherwise, and that Green Tree was trying to fix the account. (FAC ¶ 1-52.) Plaintiff identifies the dates and contents of multiple phone calls, monthly billing statements, and letters, and also identifies by name some of Green Tree's representatives with whom he spoke. (See, e.g., id. ¶¶ 28-37, 42, 44, 46-52.) Despite these representations to plaintiff and plaintiff allegedly continuing to make his monthly payments, Green Tree allegedly filed a NOD. (Id. ¶¶ 28, 30-31). These allegations are sufficiently particular under Rule 9(b) and plausibly suggest under Rule 8(a) that Green Tree made representations that would likely deceive members of the public, Puentes, Inc., 160 Cal. App. 4th at 645, and that plaintiff himself actually relied on the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.