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Ted F. Harvey v. Bank of America

February 20, 2013

TED F. HARVEY,
PLAINTIFF,
v.
BANK OF AMERICA, N.A., AND DOES 1 THROUGH 50, INCLUSIVE,
DEFENDANTS.



ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS

United States District Court For the Northern District of California

I. INTRODUCTION

Now before the Court is Defendant Bank of America, N.A.'s 19 ("Defendant") motion to dismiss Plaintiff Ted F. Harvey's 20 ("Plaintiff") Second Amended Complaint ("SAC"). ECF No. 27 21 ("MTD"); ECF No. 26 ("SAC"). The motion is fully briefed, ECF 22 Nos. 29 ("Opp'n"), 30 ("Reply"),*fn1 and appropriate for determination 23 without oral argument, Civ. L.R. 7-1(b). For the reasons discussed 24 below, the Court GRANTS IN PART and DENIES IN PART Defendant's 25 motion to dismiss. 26

II. BACKGROUND

The Court has already given a factual overview of this matter 3 in its Order dismissing in part Plaintiff's First Amended Complaint 4 ("FAC"), Harvey v. Bank of America, N.A., -- F.Supp.2d --, 2012 5 U.S. Dist. LEXIS 154319, 2012 WL 5337425 (N.D. Cal. Oct. 26, 2012) 6 (hereinafter "Order Dismissing FAC"). A brief summary of the this 7 case's posture follows. 8

Plaintiff filed his first complaint in this case on June 22, 2 2012. ECF No. 1. Defendant moved to dismiss the complaint, ECF 10 No. 9, but Plaintiff mooted that motion by filing the FAC on July 9 31, 2012, ECF No. 12. Defendant responded with motions to dismiss 12 and to strike on August 7, 2012. ECF Nos. 14 ("MTS"), 15 ("MTD"). 13

The Court granted in part and denied in part Defendant's motion to 14 dismiss, giving Plaintiff leave to amend, and denied Defendant's 15 motion to strike. Order Dismissing FAC at **11-12. Plaintiff 16 filed the SAC on November 11, 2012, asserting eight claims against 17 Defendant: (1) violation of the Equal Credit Opportunity Act 18 ("ECOA"), 15 U.S.C. § 1691 et seq.; (2) breach of the implied 19 covenant of good faith and fair dealing; (3) breach of contract; 20 (4) promissory estoppel; (5) wrongful foreclosure under Cal. Civ. 21 Code § 2924 et seq.; (6) intentional misrepresentation by 22 promissory fraud; (8) negligent misrepresentation; and (9) 23 violation of California's Unfair Competition Law ("UCL"), Cal. Bus. 24 & Prof. Code § 17200 et seq. Defendant moved to dismiss the SAC on 25 December 5, 2012. 26

United States District Court For the Northern District of California

III. LEGAL STANDARD

A. Motions to Dismiss

A motion to dismiss under Federal Rule of Civil Procedure 4 12(b)(6) "tests the legal sufficiency of a claim." Navarro v. 5 Block, 250 F.3d 729, 732 (9th Cir. 2001). "Dismissal can be based 6 on the lack of a cognizable legal theory or the absence of 7 sufficient facts alleged under a cognizable legal theory." 8

Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 9 1988). "When there are well-pleaded factual allegations, a court 10 should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Ashcroft v. 12 Iqbal, 556 U.S. 662, 664 (2009). However, "the tenet that a court 13 must accept as true all of the allegations contained in a complaint 14 is inapplicable to legal conclusions. Threadbare recitals of the 15 elements of a cause of action, supported by mere conclusory 16 statements, do not suffice." Id. at 663 (citing Bell Atl. Corp. v. 17

Twombly, 550 U.S. 544, 555 (2007)). The allegations made in a 18 complaint must be both "sufficiently detailed to give fair notice 19 to the opposing party of the nature of the claim so that the party 20 may effectively defend against it" and "sufficiently plausible" 21 such that "it is not unfair to require the opposing party to be 22 subjected to the expense of discovery." Starr v. Baca, 633 F.3d 23 1191, 1204 (9th Cir. 2011).

In addition to these general pleading standards, a heightened 25 standard applies to claims sounding in fraud. See Fed. R. Civ. P. 26 9(b). "To satisfy Rule 9(b), a pleading must identify 'the who, 27 what, when, where, and how of the misconduct charged,' as well as 28 'what is false or misleading about [the purportedly fraudulent] statement, and why it is false.'" United States ex rel Cafasso v. 2 Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1055 (9th Cir. 2011). 3 4

IV. DISCUSSION

Defendant's only compelling argument that Plaintiff's SAC 6 should be dismissed is that Plaintiff's claims fail individually.*fn2

A. Claim 1: ECOA

Congress passed ECOA to prevent discrimination by creditors 9 against certain classes of credit applicants: 10

It shall be unlawful for any creditor to discriminate against any applicant, with respect to any aspect of a credit transaction--(1) on the basis of race, color, religion, national origin, sex or marital status, or age (provided the applicant has the capacity to contract); (2) because all or part of the applicant's income derives from any public assistance ...


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