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.

Prospero and Yolanda Palmerin v. Bank of New York Trust Co.

February 3, 2012

PROSPERO AND YOLANDA PALMERIN, PLAINTIFFS,
v.
BANK OF NEW YORK TRUST CO., ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND

Plaintiffs Prospero and Yolanda Palmerin ("Plaintiffs"), appearing pro se and proceeding in forma pauperis, filed the instant action on January 30, 2012. Plaintiffs essentially challenge the validity of foreclosure on certain real property and name Bank of New York Trust Co., Recontrust CO, NA and Does 1 through 50 as defendants.

DISCUSSION

A. Screening Standard

Pursuant to 28 U.S.C. § 1915(e)(2), the court must conduct an initial review of the complaint for sufficiency to state a claim. The court must dismiss a complaint or portion thereof if the court determines that the action is legally "frivolous or malicious," fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). If the court determines that the complaint fails to state a claim, leave to amend may be granted to the extent that the deficiencies of the complaint can be cured by amendment.

In reviewing a complaint under this standard, the Court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Trustees of Rex Hospital, 425 U.S. 738, 740 (1976), construe the pro se pleadings liberally in the light most favorable to the Plaintiffs, Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and resolve all doubts in the Plaintiffs' favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

B. Plaintiffs' Allegations

Plaintiffs challenge the non-judicial foreclosure of residential property located in Modesto, California. Complaint ¶¶ 3, 20.

According to the complaint, Plaintiffs contend that Defendants placed them in a sub-prime loan and charged excessive fees that stripped the equity from the residential property. Complaint ¶¶ 26-27. Plaintiffs experienced financial hardship and applied for a loan modification through the "Making Home Affordable Program." Defendant Bank of New York Trust Co. denied the application. Complaint ¶ 28.

Defendant Recontrust Co. sent Plaintiffs a Notice of Default on or about April 16, 2010. Complaint ¶ 21. Defendants made "excessive telephone calls during the day and evenings trying to collect the payment." Complaint ¶ 31.

Plaintiffs were unaware that they would not be able to refinance their loan due to negative amortization. Complaint ¶ 33. Defendants represented that negotiations would take place to modify the terms of the subject loan. Complaint ¶ 66. Plaintiffs continued to make payments on the loan. Without making any attempts to modify the loan terms, Defendants issued a Notice of Trustee Sale and foreclosed on the residential property. Complaint ¶ 67.

Plaintiffs assert fourteen separate causes of action: (1) violation of California Civil Code § 2923.6; (2) promissory estoppel; (3) fraud; (4) to set aside the trustee's sale; (5) to void or cancel the trustee's deed upon sale; (6) wrongful foreclosure; (7) breach of contract; (8) breach of the implied covenant of good faith and fair dealing; (9) violation of California Business and Professions Code §§ 17200 et seq.; (10) quiet title; (11) slander of title; (12) declaratory relief; (13) violation of the Fair Debt Collections Practice Act, California Civil Code § 1788.17; and (14) violation of California Civil Code § 1572.

C. Analysis

1. California Civil Code § 2923.6

Plaintiffs' first claim alleges violations of California Civil Code section 2923.6 based on Defendants failure to provide a loan modification. Plaintiffs aver that they are willing to execute a loan modification on certain terms and that Defendants are "now contractually bound to accept the loan modification." Complaint ¶¶ 59, 63.

Section 2923.6 provides:

(a) The Legislature finds and declares that any duty servicers may have to maximize net present value under their pooling and servicing agreements is owed to all parties in a loan pool, . . . and that a servicer acts in the best interests of all parties . . . if it agrees to or implements a loan modification or workout plan for which both of the following apply:

(1) The loan is in payment default, or payment default is reasonably foreseeable. (2) Anticipated recovery under the loan modification or workout plan exceeds the anticipated recovery through foreclosure on a net present value basis.

(b) It is the intent of the Legislature that the mortgagee, beneficiary, or authorized agent offer the borrower a loan modification or workout plan if such a modification is consistent with its Section 2923.6 does not provide a private claim for relief to borrowers. Bulaoro v. Oro Real, Inc., 2011 WL 6372458, *8 (N.D. Cal. Dec.20, 2011); Manabat v. Sierra Pacific Mortg. Co., Inc., 2010 WL 2574161, *9 (E.D. Cal. Jun. 25, 2010) ("[N]othing in Cal. Civ. Code ยง 2923.6 imposes a duty on servicers of loans to modify the terms of loans ...


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.