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Dennis Shaw, Individually and On Behalf of v. Bac Home Loans Servicing

December 29, 2011

DENNIS SHAW, INDIVIDUALLY AND ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED,
PLAINTIFF,
v.
BAC HOME LOANS SERVICING, LP, DEFENDANT.



The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge

ORDER DENYING MOTION FOR CLASS CERTIFICATION

Plaintiff has filed a motion for class certification. For the reasons discussed below, Plaintiff's motion is DENIED WITHOUT PREJUDICE.

I. BACKGROUND

In November 2004, Plaintiff obtained a loan in the amount of $572,000 to purchase the property located at 1629 Mesa Verde Drive, Vista, California 92084 (the "Property"). (Compl. ¶¶ 5-6.) The loan was secured by a Deed of Trust. (RJN Ex. 1 filed on 12/9/10.) BAC Home Loans Servicing, LP ("BAC") services the loan. (Compl. ¶ 6.) (Bank of America, N.A. ("BANA"), is the successor by merger to BAC.)

Plaintiff apparently defaulted on his loan, and on October 19, 2009, BAC caused to be recorded a Notice of Default. (Compl. ¶ 10.) In a letter dated October 29, 2009, BAC offered Plaintiff a loan modification. The letter explained that BAC had already approved Plaintiff for the new loan modification program, which would reduce the outstanding debt, bring the loan current by capitalizing past due amounts, apply a fixed interest rate of 5.5% for the life of the loan, reamortize the loan over a 480-month period, and reduce the monthly payments. (Ex. 1 to Compl.) The letter stated that to take advantage of the modification, all Plaintiff had to do was call BAC no later than November 19, 2009, and make the first monthly payment at the new amount of $2,711.92.

Prior to November 19, 2009, Plaintiff accepted the offer by first calling and then making the payment of $2,711.92. (Compl. ¶ 7.) The payment was accepted by BAC. (Id.) Plaintiff made additional payments under the Loan Modification Agreement in January, February, and March 2010. (Compl. ¶ 8.) During this time, Plaintiff called BAC several times to inquire about the loan modification paperwork. (Id.) BAC told Plaintiff that the paperwork would be forthcoming and that Plaintiff should just continue making his payments. (Id.)

Plaintiff made a payment under the Loan Modification Agreement in April 2010 as well. (Compl. ¶ 9.) However, that payment was returned to Plaintiff by BAC, with a letter stating that the amount was insufficient. (Id.) Plaintiff made repeated calls to BAC to find out why the payment was rejected. (Id.) Plaintiff was eventually informed by BAC that it had no record of Plaintiff's acceptance of the Loan Modification Agreement, that Plaintiff was delinquent, and that BAC intended to foreclose. (Id.)

On or about May 11, 2010, BAC caused to be recorded a notice of sale. (Compl. ¶ 10.) The Trustee's Sale has been postponed several times, and it appears that the sale has not yet taken place.

In his Complaint, Plaintiff asserts claims for (1) breach of contract; and (2) violation of Cal. Bus. & Prof. Code § 17200. Plaintiff brings this action individually and on behalf of a purported class of similarly situated individuals. Plaintiff seeks damages, restitution, attorney's fees, and a permanent injunction enjoining BAC "from the improper conduct and deceptive practices alleged herein, including but not limited to offering Loan Modification Agreements without restriction or condition and then refusing to perform such Loan Modification Agreements after acceptance by the obligor of the offer." (Prayer for Relief ¶ 1.)

In an order filed on February 28, 2011, the court denied a motion for judgment on the pleadings brought by BAC.

II. DISCUSSION

Plaintiff seeks to certify the following class:

All individuals in California with home loans serviced by BAC Home Loans Servicing LP who during the period January 1, 2007 to the present, received, accepted and fully performed unconditional mortgage loan modification offers made by BAC pursuant to BAC's "Payment Option Arm Loan Modification Program" whose loan modification contract was later rejected or denied by BAC.

The Court denies Plaintiff's motion without prejudice because the class definition is imprecise, and it is unclear at this time whether Plaintiff ...


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