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Jack E. Whatley v. Bank of America

July 13, 2012


The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge


Plaintiff Jack E. Whatley ("Plaintiff") initiated this action seeking damages and injunctive relief against Defendants Bank of America, N.A. ("BofA"), BAC Home Loans Servicing, LP ("BAC"), U.S. Bank National Association, as Trustee for the benefit of Harborview 2005-2 Trust Fund, and Mortgage Electronic Registration Systems, Inc., (collectively "Defendants") as a result of Defendants' conduct arising out of a loan issued to Plaintiff in connection with the purchase of his residence.

Presently before the Court is Defendants' Motion to Dismiss ("Motion") Plaintiff's Complaint in its entirety. For the reasons set forth below, Defendants' Motion is GRANTED.*fn1


In approximately February of 2005, Plaintiff obtained a $560,000 loan to purchase a piece of residential property. Defendants' Request for Judicial Notice ("RJN"), Exh. 1.*fn3

Plaintiff executed a promissory note and Deed of Trust ("DOT") in connection with that loan. Id., Exhs. 1, 2. Defendants BofA and BAC were, at all relevant times, the loan servicers.

Plaintiff alleges that, a few years after origination of the loan, in approximately January of 2009, he contacted BofA by telephone via the entity's customer service number and that the BofA representative with whom he spoke indicated Plaintiff "was not far enough behind [on his mortgage payments] to qualify for a loan modification." Complaint, ¶ 20.

That representative purportedly advised Plaintiff that once he was far enough behind on his payments, he would qualify. According to Plaintiff, he was also told by someone "that he would receive a modification if he became seriously delinquent and that BofA would give him a modification" because BofA would then receive related subsidies from the government. Id., ¶ 55. As a result, Plaintiff stopped making his mortgage payments.

Over the next nine months, Plaintiff was repeatedly advised by BofA that he was not far enough behind on his mortgage payments to apply for a loan modification. Plaintiff was further advised that he should continue calling back to inquire as to whether he was sufficiently behind in making his payments so that he could apply for the sought-after modification. Eventually, Plaintiff received a letter from BofA stating he was pre-approved for a modification pursuant to the Home Affordable Modification Program. Plaintiff thereafter submitted and re-submitted multiple application packages and requested documents. Plaintiff was subsequently advised his modification was being processed, but, ultimately, he was notified that, to the contrary, his application had been closed and his property was going to be sold at a trustee's sale.

Plaintiff thus initiated this action in Sacramento County Superior Court alleging causes of action against all Defendants for: 1) deceit; 2) promissory estoppel; 3) wrongful foreclosure; and 4) violation of California's Unfair Competition Law, Business and Professions Code §§ 17200, et seq. ("UCL").

Defendants thereafter removed the action to this Court and filed the instant Motion to Dismiss. For the following reasons, Defendants' Motion is GRANTED with leave to amend.


On a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6),*fn4 all allegations of material fact must be accepted as true and construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Rule 8(a)(2) "requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the...claim is and the grounds upon which it rests.'" Bell. Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A complaint attacked by a Rule 12(b)(6) motion to dismiss does not require detailed factual allegations. Id. However, "a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. (internal citations and quotations omitted). A court is not required to accept as true a "legal conclusion couched as a factual allegation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555).

The Court also is not required "to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Sciences Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (internal citations and quotations omitted). "Factual allegations must be enough to ...

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