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Cynthia Roberts v. Jp Morgan Chase Bank


September 26, 2011


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


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


$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 alleged." Iqbal, 129 S.Ct. at 1949. 26

II.Motion to Dismiss*fn2

United States District Court

A.Legal Standard

A motion to dismiss for failure to state a claim under Rule 12(b)(6) tests the legal 2 of Federal Rule of Civil Procedure 9(b). Under the federal rules, a plaintiff alleging fraud "must 3 state with particularity the circumstances constituting fraud." Fed. R. Civ. Pro. 9(b). To satisfy 4 this standard, the allegations must be "specific enough to give defendants notice of the particular 5 misconduct which is alleged to constitute the fraud charged so that they can defend against the 6 charge and not just deny that they have done anything wrong." Semegen v. Weidner, 780 F.2d 727, 7

Additionally, claims sounding in fraud are subject to the heightened pleading requirements

731 (9th Cir. 1985). Thus, claims sounding in fraud must allege "an account of the time, place, and 8 specific content of the false representations as well as the identities of the parties to the 9 misrepresentations." Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir. 2007). 10

Defendant moves to dismiss claims one through three, and claim seven, of the SAC. As discussed below, the Court agrees with JP Morgan that these amended claims must be dismissed. 13


The Court will address each claim in turn. 14

16 in 2009, fraudulently misrepresented that Plaintiff had been granted a loan remodification. Given 17 the heightened pleading standards for fraud under Rule 9(b), Plaintiff must generally identify the 18 agent who made the alleged misrepresentation and their authority to speak as a representative on 19 behalf of the organization. Semegen v. Weidner, 780 F.2d 727731 (9th Cir. 1985) See Akhavein v. 20

Argent Mortg. Co. 2009 WL 2157522 at *4 (N. D. Cal. 2009); Mat-Van, Inc. v. Sheldon Good & 21

Co. Auctions, LLC, 07-CV-912 IEGBLM, 2007 WL 2206946 (S.D. Cal. July 27, 2007); Consumer 22

Solutions REO, LLC v. Hillery, 658 F. Supp. 2d 1002, 1019-20 (N.D. Cal. 2009); Edejer v. DHI 23

Mortg. Co., C 09-1302 PJH, 2009 WL 1684714 (N.D. Cal. June 12, 2009); Orlando v. Carolina 24

Plaintiff has failed to meet the heightened pleading standard here. Plaintiff alleges that a Washington Mutual Bank "representative and/or agent" made the false representation to Plaintiff 27 that she had received a loan modification "that she had been negotiating with Washington Mutual 28 for some time prior." SAC ¶ 39. Plaintiff alleges that this representation was made on or about

1.Fraud Claim Against Washington Mutual Bank

Plaintiff's first cause of action alleges that Washington Mutual, in servicing the home loan

Cas. Ins. Co., CIV F 07-0092AWISMS, 2007 WL 781598 (E.D. Cal. Mar. 13, 2007). 25

January 13, 2009, but plaintiff does not further identify the agent. SAC ¶ 39. Without more, 2

Plaintiff's bare assertions that Washington Mutual told her that she had received a loan 3 modification are not enough to establish who the Washington Mutual agent was, and that the agent 4 had sufficient authority to speak on the organization's behalf. See Akhavein, 2009 WL 2157522 at *4; Arena v. Wal-Mart Stores, Inc., 221 F.R.D. 569, 572 (D. Kan. 2004) ("If plaintiffs cannot 6 identify the individuals by name, they must use alternative means to more precisely identify the 7 speaker."). Because Plaintiff has failed to meet the heightened pleading requirements under Fed. R. Civ. P. 9(b) the First Cause of Action for Fraud is DISMISSED.*fn3

2.Fraud Claim Against JP Morgan

Plaintiff claims that JPMorgan's agents made false representations between January 28, 2009 to June 11, 2009 to Plaintiff that her house had been sold in foreclosure, and then failed to inform Plaintiff that the foreclosure was rescinded. SAC ¶ 49. As explained above, Plaintiff is 13 required to plead with particularity the identity of JP Morgan's agent that made the alleged 14 misrepresentations. She has only alleged that JP Morgan's representatives and/or agents made 15 false representations, and has alleged no other identifying information regarding the JP Morgan 16 representative. Plaintiff has also failed to identify, with sufficient particularity the dates when the 17 allegedly fraudulent statements were made by JPMorgan's representatives. Therefore, Plaintiff has 18 failed to meet the heightened pleading standard for fraud under Fed. R. Civ. P. 9(b). 19

20 from the alleged misrepresentation as required under California law. Ach v. Finkelstein, 264 Cal. 21

App. 2d 667, 674 (1968). The Court agrees. Plaintiff claims that she relied upon the JP Morgan 22 agent's misrepresentation and moved out of her home, retained counsel, and proceeded with legal 23 remedies. SAC at ¶ 54. She concedes elsewhere in her complaint, however, that she continues to 24 reside in the subject property, and that she has resided in the property at all times mentioned in the 25 complaint, and that she is currently in default. SAC at ¶ 1; 35-36; Compl. ¶ 58. Thus, her claim 26

Moreover, Defendant argues that Plaintiff has failed to plausibly plead resulting damage

that she relied on and was damaged by misrepresentations that her home was being foreclosed 2 upon, when in fact it was not, is not facially plausible. 3

4 from the alleged misrepresentations made related to the foreclosure sale. As explained above, the 5 original complaint alleged improprieties with the loan origination of the subject property and 6 contained no allegations regarding improprieties arising out of the foreclosure sale. Moreover, 7 given that Plaintiff has conceded that she is in default on the loan, it is facially implausible that any 8 costs related to this legal process arise out of the alleged misrepresentations made in 2009. For 9 these reasons, Plaintiff's Second Cause of Action for Fraud against JP Morgan is DISMISSED. 10

P.2d 527 (1999). "By proscribing 'any unlawful' business practice, [the UCL] 'borrows' violations 14 of other laws and treats them as unlawful practices that the unfair competition law makes 15 independently actionable.'" See Chabner v. United of Omaha Life Ins. Co., 225 F.3d 1042, 1048 16

UCL based on the predicate fraud allegations contained in counts one and two of the SAC. 18

19 particularity. Accordingly, Plaintiff has failed to state a UCL claim predicated upon a fraud and 20 therefore Plaintiff's Third Cause of Action for violations of California's Unfair Competition Law is 21


24 qualified written requests ("QWR") for information relating to the servicing of the subject loan. A 25 correspondence must meet several statutory requirements in order to be considered a QWR under 26 U.S.C. § 2605(e)(1)(A). A QWR is a written request other than notice on a payment coupon or 28 other payment medium supplied by the servicer. Id. at § 2605(e)(1)(B). "The term 'servicing'

Plaintiff has also failed to establish that her decision to proceed with this lawsuit resulted

3.Unfair Competition Law Claims

The UCL prohibits any "unlawful, unfair or fraudulent business practices." See Cel-Tech

Commc'ns, Inc. v Los Angeles Cellular Tel. Co., 20 Cal. 4th 163, 180, 83 Cal. Rptr. 2d 548, 973 13 (9th Cir. 2000) (quoting Cel-Tech, 20 Cal. 4th at 180). Plaintiff claims that Defendant violated the 17

As discussed above, Plaintiff's fraud claims are dismissed for failure to plead with


Plaintiff has also claimed that Washington Mutual and JP Morgan failed to respond to her

RESPA. Specifically, a QWR must relate to information regarding the servicing of the loan. 12 27

means receiving any scheduled periodic payments from a borrower pursuant to the terms of any 2 loan . . . and making the payments of principal and interest and such other payments with respect to 3 the amounts received from the borrower as may be required pursuant to the terms of the loan." Id. 4 at § 2605(i)(3). The request must provide sufficient information for the servicer to identify the 5 name and account of the borrower. Id. at § 2605(e)(1)(B)(i). Finally, a QWR must include a 6 statement of the reasons for the belief of the borrower, to the extent applicable, that the account is 7 in error or provide sufficient detail to the servicer regarding other information sought by the 8 borrower. Id. at § 2605(e)(1)(B)(ii). 9

10 under Rule 9(b), she must still plead some factual basis to support her claim. Iqbal, 129 S.Ct. at

While Plaintiff is not required to plead her RESPA claim with heightened particularity, 1949 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)) (A complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its 13 face.'"). Plaintiff has failed to even meet this lower standard. Other than bare assertions that 14

Washington Mutual and JP Morgan received a QWR from Plaintiff, and that they subsequently 15 failed to respond to the QWRs, Plaintiff has not pled any factual allegations to support her claims.*fn4

See SAC ¶¶ 84-85. She has not pled what was contained in her request or how it otherwise 17 complied with the statutory requirements of a QWR.*fn5 Therefore, Plaintiff's Seventh Cause of 18 Action for violation of RESPA is DISMISSED. 19 20

2 complaint to cure the deficiencies identified previously as to Plaintiff's first, second, third, and 3 seventh causes of action. Plaintiff's Second Amended Complaint is the third complaint she has 4 filed, or attempted to file, in this action. This is the second motion to dismiss that the Court has 5 granted. Plaintiff has made two attempts to plead claims for fraud, unfair competition, and 6 violations of RESPA and has not been able to do so despite the fact that Plaintiff has had since at 7 least April 2009 when she filed the original complaint to investigate and properly plead her claims. 8

The Court must also determine whether Plaintiff should be permitted to amend her

It does not appear that Plaintiff has suffered any pecuniary damages as Plaintiff apparently has 9 been living in the subject property for free since 2008 when Washington Mutual issued its notice of 10 default. Plaintiff was originally represented, and when her attorney withdrew, the Court referred

First, Second, Third, and Seventh Causes of Action alleged in the Second Amended Complaint are DISMISSED with prejudice.

In its March 11, 2011 Order, the Court dismissed Plaintiff's claims, but allowed Plaintiff to amend the complaint to cure the deficiencies identified in the Order. The Court explicitly 18 explained that the Plaintiff "may not add new claims or parties without seeking the opposing 19 party's consent or leave of the Court pursuant to Federal Rule of Civil Procedure 15." March 11

Order at 14, ECF No. 32. Despite explicit instructions from the Court to the contrary, Plaintiff 21 filed the SAC on April 1, 2011, with new causes of action not contained in her initial complaint.

She did not obtain consent from counsel, nor did she seek leave of the Court before doing so. For 23 these reasons, Defendant's motion to strike the remaining new causes of action in the SAC is 24

This is the second time that Plaintiff has attempted to circumvent the Defendant's motion to dismiss or strike by filing an amended complaint without first obtaining consent from opposing 27 counsel or seeking leave of the Court. On February 28, 2011, three days before Defendant's first 28 motion to dismiss was set for hearing, Plaintiff filed a First Amended Complaint. In its March 11

Plaintiff to the Federal Legal Assistance Self-Help center for assistance. The Court thus finds that permitting Plaintiff to file a Third Amended Complaint would be futile. Accordingly, Plaintiff's 13

III.Motion to Strike/Motion to Amend


Order, the Court struck the FAC because Plaintiff failed to obtain consent from counsel or seek 2 leave from the Court first.

Again, instead of following the Court's March 11 Order and seeking leave first, Plaintiff filed her SAC with several new claims on April 1, 2011. After Defendant sought to strike and 5 dismiss the SAC, on June 9, 2011, Plaintiff filed her belated leave to amend. At this point, her 6 efforts to comply with the Court Order are several months too late.

In order to determine whether leave to amend should be granted, the Court must consider "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure 9 deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of 10 allowance of the amendment, [and] futility of amendment, etc.'" Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). Plaintiff has argued only that because discovery has not started, Defendant would not be 13 prejudiced by granting her yet another leave to amend. Mot. To Amend, July 25, 2011, at 2-3, ECF 14 No. 57-1. The Court disagrees. The Defendant has had to file two motions to dismiss in this case 15 already. Allowing additional new claims at this point, under a new theory of liability, would certainly burden the Defendant.

Moreover, several other factors weigh against granting Plaintiff's leave to amend in this case. Plaintiff has repeatedly failed to cure the deficiencies contained in the complaints presented 19 thus far. While the Court recognizes that Plaintiff has been proceeding pro se, she is nonetheless 20 required to comply with the federal and local rules of procedure and with the Orders set forth by 21 this Court. She has failed to do so and her conduct -- by filing amendments in an attempt to 22 preemptively cure motions to dismiss and strike -- has evidenced an intent to circumvent those 23 rules. 24

Additionally, as explained above, the Court finds that allowing Plaintiff to replead additional causes of action would likely be futile. Plaintiff's Second Amended Complaint is the 26 third complaint she has filed, or attempted to file, in this action. Plaintiff has not been able to 27 sufficiently allege any cause of action for about two and a half years. Plaintiff has had since at 28 least April 2009, when she filed the original complaint, to properly plead her claims. Moreover, it appears that Plaintiff has been living in the subject property without making any mortgage 2 payments since at least 2008 when Washington Mutual issued its notice of default. Thus allowance 3 of another amendment would unduly prejudice Defendant. For these reasons, Plaintiff's motion 4 seeking leave to amend is DENIED. 5

Court.*fn6 The state court action was an unlawful detainer action brought against Plaintiff after JP 9

IV.Dismissal of Related Action 09-CV-1855

In Case No. 09-CV-01855, Plaintiff purported to remove a case entitled JP Morgan Chase Bank, N.A. v. Cynthia Roberts, et al., Case No. CV 162767, from the Santa Cruz County Superior Morgan bought the subject property in the trustee's sale. Despite the fact that Plaintiff has never 10 filed the state court complaint, it is apparent that the state court action that Plaintiff attempted to

e notice of dismissal of the unlawful detainer

remove is an unlawful detainer action because th 12 action filed by Defendant bears the same case number as the case that Plaintiff has attempted to 13 remove to this Court. Compare Supplemental Request for Judicial Notice, June 15, 2011, ECF No. 14

Case Number 09-CV-1855 is dismissed for two reasons. First, the Defendant, JP Morgan, dismissed the underlying unlawful detainer action in state court several years ago, in May 2009.

Defendant has submitted*fn7 the notice of dismissal of the unlawful detainer action. Plaintiff, 18 likewise, admitted at the August 3, 2011 Case Management Conference that the state court 19 unlawful detainer action which provides the basis for her attempted removal was dismissed. 20 21

Angeles, 250 F.3d 668, 689 (9th Cir. 2001). The Court GRANTS the notice of dismissal of the unlawful detainer action submitted by Defendant is a matter of public record "not subject to 28 reasonable dispute [and] capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201.

Because the state court action was dismissed by JP Morgan several years ago, case number 09-CV-2 01855 should also be dismissed.

Second, this Court never had subject matter jurisdiction over the unlawful detainer action 4that Plaintiff attempted to remove to federal court. An unlawful detainer cause of action such as the one asserted in case number 09-CV-01855 does not raise a federal question. See, e.g., Litton Loan Servicing, LP v. Villegas, 2011 U.S. Dist. LEXIS 8018, *2 (N.D. Cal. Jan. 21, 2011) (remanding unlawful detainer action to state court based on lack of federal question jurisdiction); Partners v. Gonzalez, 2010 U.S. Dist. LEXIS 95714, at * 2-3 (N.D. Cal. Aug. 30, 2010) (same).

Moreover, it is well-settled that a case may not be removed to federal court on the basis of a federal 10 defense. See Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 10 (1983).

Thus, to the extent Plaintiff's defenses or count

erclaims to the unlawful detainer action are based

on alleged violations of federal law, those allegations do not provide a basis for federal jurisdiction.

Accordingly, case number 09-CV-01855 is also DISMISSED.


For the foregoing reasons, the Court GRANTS Defendant's motion to dismiss Plaintiff's Second Amended Complaint, with prejudice; STRIKES the new amendments to the Second Amended Complaint; DENIES Plaintiff's motion seeking leave to file a Third Amended Complaint; and DISMISSES related case number 09-CV-1855.


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