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Cynthia Roberts v. Jp Morgan Chase Bank

September 26, 2011

CYNTHIA ROBERTS,
PLAINTIFF,
v.
JP MORGAN CHASE BANK, N.A., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Lucy H. Koh United States District Judge

ORDER GRANTING MOTION TO DISMISS; GRANTING MOTION TO STRIKE; DENYING MOTION SEEKING LEAVE TO AMEND; DISMISSING RELATED CASE AND RELATED CROSS-ACTION

United States District Court For the Northern District of California

Before the Court are three motions that have been filed in case number 09-CV-01879.

Defendant JP Morgan Chase Bank, N.A. ("JP Morgan"), moves to dismiss counts one, two, three, 20 and seven of Plaintiff Cynthia Roberts's Second Amended Complaint ("SAC"); and moves to 21 strike counts five, six, eight, nine, and ten of Plaintiff's SAC. Plaintiff seeks leave to file a Third 22 Amended Complaint. A hearing was held on September 15, 2011. Having considered the 23 submissions of the parties and the relevant law, the Court GRANTS Defendant's motion to 24 dismiss, with prejudice; and Defendant's motion to strike; and DENIES Plaintiff's motion seeking 25 leave to amend to file a Third Amended Complaint. The Court also DISMISSES the related action, 26 case number 09-CV-01855. 27

I.Background

$712,000, secured by a deed of trust concerning property located at 107 Silverwood Drive, Scotts 4 Valley, California (the "subject property"). Compl. ¶ 16. The subject property was Plaintiff's 5 principal residence. Id. 6

This case arises out of a mortgage transaction between Plaintiff and Washington Mutual Bank, FA, that took place over seven years ago. On August 4, 2003, Plaintiff obtained a loan for 3

On April 29, 2009, Plaintiff filed two actions in federal court. In Case No. 09-CV-01855, Plaintiff purported to remove a case entitled JP Morgan Chase Bank, N.A. v. Cynthia Roberts, et 8 al., Case No. CV 162767, an unlawful detainer action, from the Santa Cruz County Superior Court. 9

Plaintiff was ordered twice in October 2009 by Magistrate Judge Patricia V. Trumbull, the judge 10 previously assigned to this matter, to file the state court complaint that she purported to remove.

state court complaint. Thus, it does not appear that any case was actually removed from state court 13 because Plaintiff failed to attach the state court complaint to the removal notice. 14

Washington Mutual Bank, FA and JP Morgan Chase Bank, N.A. On June 11, 2009, Judge 16

September 21, 2009. On November 24, 2009, however, Judge Trumbull learned that Plaintiff's 18 counsel had resigned from the California State Bar and stayed the case to allow Plaintiff to seek 19 another attorney or to proceed pro se. In September 2010, after granting several extensions of the 20 stay, Judge Trumbull issued an interim order which (1) solicited further briefing regarding 21

Federal Pro Bono Project in an attempt to secure pro bono representation. On November 10, 2010, 23 the Federal Pro Bono Project indicated that it was unable to secure representation for Plaintiff. 24

Finally, on January 5, 2011, the case was reassigned to the undersigned judge, and Defendant's 25 motion to dismiss was renoticed for hearing on March 3, 2011. 26

27 origination because the Purchase and Assumption Agreement through which JP Morgan obtained 28 certain assets from Washington Mutual also limited JP Morgan's liability with respect to

See ECF No. 18; ECF No. 19. Plaintiff failed to follow the Court's orders and has never filed the

In Case No. 09-CV-01879, Plaintiff filed a separate Complaint against Defendants

Trumbull consolidated the two cases, and Defendant JP Morgan moved to dismiss the actions on 17

Defendant's motion to dismiss; (2) declined to further stay the case; and (3) referred Plaintiff to the 22

In its March 11, 2011 Order, the Court dismissed Plaintiff's claims relating to the loan

Washington Mutual's origination of home loans. The Court found defects in the Plaintiffs' 2 remaining causes of action and dismissed all claims in the initial complaint. Nonetheless, Plaintiff 3 was given leave to file a Second Amended Complaint to cure the deficiencies in Plaintiff's claims 4 for fraud, violations of RESPA, violations of the California Business & Professions Code § 17200, 5 breach of contract, breach of covenant of good faith and fair dealing, violation of California Civil 6

Code § 2923.5, violation of federal and state fair debt collection practices acts, quiet title, and 7 declaratory judgment. In allowing leave to amend the Complaint, the Court stated "If Plaintiff 8 wishes to pursue this action, she must file a Second Amended Complaint within 21 days of this 9 order. Plaintiff may not add new claims or parties without seeking the opposing party's consent or 10 leave of the Court pursuant to Federal Rule of Civil Procedure 15." March 11 Order at 14, ECF 11

Plaintiff filed her SAC*fn1 on April 1, 2011. The allegations in the SAC centered around

13 events relating to a foreclosure sale of the subject property in early 2009. Plaintiff alleges that a 14

2009. SAC at ¶ 17. Plaintiff alleges that Washington Mutual Bank proposed a term that the past-16 due amounts on the loan would be added to the note and that Plaintiff's first mortgage payment 17 would be on April 1, 2009. SAC at ¶ 18. One week later, on January 20, 2009, the subject 18 property was sold in a foreclosure sale. SAC at ¶ 18. Plaintiff alleges that she was given no notice 19 prior to the date of the sale. SAC at ¶ 16. Plaintiff further alleges that JP Morgan filed an unlawful 20 detainer action against Plaintiff on February 10, 2009. SAC at ¶ 20. On March 19, 2009 the 21 foreclosure sale was rescinded and recorded on the same day. SAC at ¶ 20. As Plaintiff conceded 22 at the August 3, 2011 Case Management Conference, the unlawful detainer action was dismissed 23 by JP Morgan in May of 2009. 24

Washington Mutual representative told her that she qualified for a loan modification on January 13, 15

Plaintiff's SAC contained nine causes of action: four amended causes of action for fraud

(by both Washington Mutual and JP Morgan), violations of the California Business & Professions 26 27

Code § 17200, and RESPA; and five new causes of action for negligent infliction of emotional 2 distress (by both Washington Mutual and JP Morgan), defamation, injunction, and accounting. 3

On June 9, 2011, Defendant filed a motion to dismiss the first (fraud by Washington Mutual), second (fraud by JP Morgan), third (Unfair Competition Law), and seventh (RESPA) 5 claims in the SAC. See ECF No. 59. On the same day, Defendant filed a motion to strike the 6 remaining claims in Plaintiff's SAC for negligent infliction of emotional distress, defamation, 7 injunction, and accounting, because Plaintiff had added new claims without seeking consent of 8 opposing counsel or seeking leave of the court. Instead of responding to Defendant's separately 9 noticed motion to strike the new amendments to the FAC, Plaintiff filed a motion seeking leave to 10 amend the newly added claims on July 25, 2011. ECF No. 67. Defendant filed an opposition to Plaintiff's motion for leave to file a third amended complaint on September 7, 2011. ECF No. 74.

15 sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In considering 16 whether the complaint is sufficient to state a claim, the court must accept as true all of the factual 17 allegations contained in the complaint. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). However, 18 the court need not accept as true "allegations that contradict matters properly subject to judicial 19 notice or by exhibit" or "allegations that are merely conclusory, unwarranted deductions of fact, or 20 unreasonable inferences." St. Clare v. Gilead Scis., Inc. (In re Gilead Scis. Sec. Litig.), 536 F.3d 21

1049, 1055 (9th Cir. 2008). While a complaint need not allege detailed factual allegations, it "must 22 contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its 23 face.'" Iqbal, 129 S.Ct. at 1949 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 24

(2007)). A claim is facially plausible when it "allows the court to draw the reasonable inference 25 that the defendant is liable for the misconduct ...


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