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Tami Tavake, et al v. Chase Bank

December 5, 2012


The opinion of the court was delivered by: Allison Claire United States Magistrate Judge


Plaintiffs, proceeding in this action pro per, filed the operative first amended complaint ("FAC") on July 19, 2012. Pending before the court are motions to dismiss filed by defendant Sand Canyon Corp. (f/k/a Option One Mortgage Corp.) ("Option One") on August 15, 2012 and by defendants JPMorgan Chase Bank ("JPMorgan") (erroneously sued as JP Morgan Bank or Chase) and California Reconveyance Company ("CRC") on August 16, 2012. Plaintiffs oppose both motions. On review of the motions, the documents filed in support and opposition, and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:


On April 19, 2006, plaintiff Tami Tavake paid $895,439.87 as a down payment toward the purchase of a private residence located at 989 East Critchett, Tracy, CA 95304 ("the Subject Property") and entered into a residential mortgage loan agreement for the remainder of the purchase price ($350,000.00) with Mariners Capitol, Inc. ("Mariners") secured by the Subject Property. Compl. ¶¶ 2, 20, 23; Option One Req. for Judicial Notice ("RJN"), Ex. 1.*fn1

Tami Tavake, who is listed as the sole owner of the property*fn2 , secured payment of the principal and interest sums with a Deed of Trust ("DOT") that was recorded with the San Joaquin County Recorder's Office on April 25, 2005. Option One RJN, Ex. 1.

On August 13, 2007, Tami Tavake refinanced the earlier mortgage loan with Washington Mutual Bank, the predecessor-in-interest to defendant JPMorgan, see Compl. ¶ 6, in the amount of $902,000.00. Option One RJN, Ex. 3. On August 20, 2007, a second DOT was recorded with the San Joaquin County Recorder's Office. Id. CRC is listed as the Trustee on the DOT. Id.

On September 28, 2011, a Notice of Default and Election to Sell was recorded, JPMorgan RJN, Ex. 2; and on December 27, 2011, a Notice of Trustee's Sale was recorded, id., Ex. 3.

In November or December 2011, plaintiff Tami Tavake applied for a loan modification with JPMorgan. Compl. ¶ 39. The day after submitting the necessary documentation, plaintiffs received a copy of the Notice of Trustee's Sale. Id. ¶ 40. Despite this notice, JPMorgan representatives repeatedly assured plaintiffs that the bank was working with them on their application for a loan modification. Id. ¶¶ 41-51. Plaintiffs eventually rejected JPMorgan's proposed loan modification. See Pls.' Opp'n ¶ 13.


Plaintiffs filed suit on January 6, 2012 and are proceeding on a FAC against defendants JPMorgan, Mariners*fn3 , CRC, Option One, and Does 1-20 on claims of breach of contract, fraud and deceit and/or negligent misrepresentation, negligence, and violation of the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. ¶ 2601 et seq. Plaintiffs accuse Mariners of using aggressive sales tactics to get Tami Tavake, who is alleged to be illiterate, to refinance the April 19, 2006 residential loan agreement; that Washington Mutual representatives encouraged plaintiff Tami Tavake "to do it"; that both of these defendants took advantage of plaintiff Tami Tavake's inability to read or write by misleading her into entering a loan that was ultimately detrimental to her in light of her inability to repay the loan; and that the defendants, collectively, violated RESPA in connection with plaintiffs' application for a loan modification. Other than naming CRC and Option One in the caption of the FAC, plaintiffs do not set forth any charging allegations as to either of these defendants in the body of the FAC.

On January 19, 2012, JPMorgan and plaintiffs filed a stipulation to stay both the foreclosure proceedings and the instant case pending resolution of plaintiff's loan modification application. See Doc. No. 9. On January 25, 2012, the stipulation was adopted, this case was stayed, and JPMorgan was granted until April 13, 2012 to file a responsive pleading. Doc. No. 10. The stay was ultimately extended to July 31, 2012. See Doc. Nos. 13, 15.

On or around January 2012, plaintiffs sent defendant JPMorgan a Qualified Written Request ("QWR")*fn4 . See Doc. No. 12 ¶ 8. On May 29, 2012, JPMorgan and plaintiffs filed a stipulation to, inter alia, extend the time for JPMorgan to respond to plaintiffs' QWR. Doc. No. 14. The order adopting the stipulation granted JPMorgan until one week following expiration of the stay to respond to the QWR -- that is, until August 7, 2012. Doc. No. 15.

On August 14, 2012, plaintiffs filed with the court a copy of a letter entitled "Qualified Written Request" dated August 9, 2012 and addressed to each of the defendants. Doc. No. 26. Therein, plaintiffs reference the QWR sent in January 2012, assert that they had not yet received a response to the QWR from JPMorgan, and request copies of documentation pertaining to Tami Tavake's loan, including "all reassignment notices, all note transfers, deeds, trust deed notes, riders, ballon [sic] payments, adjustable rate note, [and] transfer of servicing."

On August 15, 2012, defendant Option One filed a motion to dismiss. On August 16, 2012, defendants JPMorgan and CRC filed a motion to dismiss. Plaintiffs oppose both motions. These matters ...

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