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Jack E. Whatley v. Bank of America

November 21, 2012

JACK E. WHATLEY
PLAINTIFF,
v.
BANK OF AMERICA, N.A., ET AL., DEFENDANTS.



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

MEMORANDUM AND ORDER

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 Plaintiff's First Amended Complaint. (ECF No. 25.)

For the reasons set forth below, Defendants' Motion to Dismiss is GRANTED without leave to amend.*fn1

BACKGROUND*fn2

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 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." (FAC ¶ 20.) That representative purportedly advised Plaintiff that once he was far enough behind on his payments, he would qualify. (Id.) ///

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. ¶ 50.) As a result, Plaintiff stopped making his mortgage payments. (Id. ¶ 51.)

Over the next nine months, BofA repeatedly advised Plaintiff that he was not far enough behind on his mortgage payments to apply for a loan modification. (Id. ¶ 21.) 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. (Id. ¶ 24.) Eventually, Plaintiff received a letter from BofA stating he was pre-approved for a modification pursuant to the Home Affordable Modification Program ("HAMP"). (Id. ¶ 25.) Plaintiff thereafter submitted and re-submitted multiple application packages and requested documents. (Id. ¶ 29.) Plaintiff was subsequently advised his modification was being processed, but, ultimately, he was notified that his application had been closed and his property was going to be sold at a trustee's sale. (Id. ¶¶ 28, 46.)

Plaintiff initiated this lawsuit in Sacramento County Superior Court. (Notice of Removal, ECF No. 1.) Defendants thereafter removed the action to this Court based on the Court's diversity jurisdiction. (Id.) Subsequently, Defendants filed a Motion to Dismiss Plaintiff's Complaint, which the Court granted with leave to amend. (ECF No. 23.)

Plaintiff then filed his FAC on August 1, 2012, alleging the following state-law causes of action: 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"). (ECF No. 24.)

STANDARD

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, ...


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