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Gina Sanguinetti v. Citimortgage


March 28, 2013



Now before the court is Defendants CitiMortgage, Inc. and 20 Citibank, N.A.'s (collectively "Defendants") motion to dismiss 21 Plaintiff Gina Sanguinetti's ("Plaintiff") First Amended Complaint. 22 ECF Nos. 14-1 ("MTD"), 12 ("FAC"). The motion is fully briefed, 23 ECF Nos. 23 ("Opp'n"), 24 ("Reply"), and appropriate for decision 24 without oral argument, Civ. L.R. 7-1(b). For the reasons explained 25 below the Court GRANTS Defendant's motion and DISMISSES Plaintiff's 26 FAC with leave to amend. 27



The undisputed fact at the center of this dispute is simple: 3 Plaintiff has a second mortgage loan provided and serviced by 4 Defendants, and Plaintiff defaulted on said loan. FAC ¶ 2. 5 Plaintiff's FAC, however, is no model of clarity. According to 6 Plaintiff: 7

[Defendants] provided Plaintiff with a mortgage loan and services such loan and in 2 so doing have (1) provided a loan without providing and disclosing to Plaintiff, as 8 required under law, the required Truth in Lending Disclosures; (2) failed to provide to Plaintiff, as required under law, the 11 required disclosure of the Annual Percentage Rate ("APR") to be charged for the loan; (3) failed to provide to Plaintiff, as required under law, a detailed Good Faith Estimate detailing all relevant fees to be charged to 12 Plaintiff; (4) failed to provide to Plaintiff, as required under law, a signed original of the Promissory Note relevant to [Plaintiff's] loan; (5) charged an excessive 14 and undisclosed amount in interest charges in violation of law; (6) illegally and 15 unfairly insisted that, prior to making any determination as to [Plaintiff's] right to a 16 loan modification, that she must first pay [Defendants'] inflated "reinstatement" 17 fees[,] which include exorbitant attorneys['] fees and costs[,] as well as 18 excessive[,] undisclosed "miscellaneous" fees; and (7) have, even after payment of all such excessive fees and charges, then denied the loan modification request and 20 unlawfully and unfairly attempted to foreclose on [Plaintiff's] property.

FAC ¶ 7. Plaintiff fully explains none of these alleged facts, 24 going on to claim that Defendants knowingly misrepresented the 25 nature and terms of the loans, that the loans were a good financial 26 decision for Plaintiff, the loans' modification process, and 27

Plaintiff's home's value. Id. ¶ 17. 28

Further, Plaintiff alleges that Defendants knowingly or negligently defrauded her, "causing her to agree to enter a loan 2 which Defendants knew Plaintiff [was] unlikely to ever be able to 3 pay off. Because of Plaintiff['s] desperation and desire to stay 4 in her Home, she justifiably relied on Defendants' 5 misrepresentations about the terms of the loans, her ability to 6 afford the loans and the value of their home." Id. 7

In this context, Plaintiff claims that Defendants had a duty 8 to investigate the reasonableness of her income and confirm that 9 she had the ability to repay the loan, but that they did not do so when they qualified her for the loan based on the "overstated 10 income supply by Defendants." Id. ¶ 18. Essentially, Plaintiff is 12 alleging that Defendants falsified her income themselves, because she never actually supplied it. See id. ¶¶ 18-19. 14

Plaintiff also asserts that Defendants hid the fact that the 15 initial interest-only loan payments would convert to a fully 16 amortized payment and then failed to qualify Plaintiff for the 17 fully indexed, fully amortized amount despite an alleged agreement 18 to do so. Id. ¶ 21. 19

Finally, based on Defendant's purported failure to have 20 offered Plaintiff the correct loan or to convert Plaintiff's loan 21 to the proper type, Plaintiff alleges that Defendant breached a 22 duty to "competently and reasonably work with Plaintiff" to come to 23 a modification agreement. Id. 24

From these facts, Plaintiff asserts four causes of action 25 against Defendants: (1) quiet title, (2) fraud or negligent 26 misrepresentation, (3) negligence, and (4) unfair, unlawful, and 27 fraudulent business practices under California's Unfair Competition 28 Law ("UCL"), Cal. Bus. & Prof. Code § 17200 et seq.

On January 24, 2013, Defendants moved to dismiss Plaintiff's 2 FAC. A hearing on the MTD was set for March 1, 2013. On February 3 15, 2013, Defendants filed a Notice of Non-Opposition because 4 Plaintiff had not responded to the MTD by the February 7 deadline. 5 ECF No. 19. Plaintiff's counsel claimed he had not received the 6 motion and asked the Court for a continuance on February 15, 2013. 7 ECF No. 20.*fn1 The Court granted the continuance and held that the 8 matter would be submitted on the papers, with no need for oral 9 argument, after the parties filed their briefs. ECF No. 21. The 10 parties submitted their briefs by March 7, 2013.

III.LEGAL STANDARD A.Motions to Dismiss

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) "tests the legal sufficiency of a claim." Navarro v. 16 Block, 250 F.3d 729, 732 (9th Cir. 2001). "Dismissal can be based 17 on the lack of a cognizable legal theory or the absence of 18 sufficient facts alleged under a cognizable legal theory." 19

Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 20 1988). "When there are well-pleaded factual allegations, a court 21 should assume their veracity and then determine whether they 22 plausibly give rise to an entitlement to relief." Ashcroft v. 23

Iqbal, 556 U.S. 662, 679 (2009). However, "the tenet that a court 24 must accept as true all of the allegations contained in a complaint 25 is inapplicable to legal conclusions. Threadbare recitals of the 26 elements of a cause of action, supported by mere conclusory 2 statements, do not suffice." Id. (citing Bell Atl. Corp. v. 3 Twombly, 550 U.S. 544, 555 (2007)). The court's review is 4 generally "limited to the complaint, materials incorporated into 5 the complaint by reference, and matters of which the court may take 6 judicial notice." Metzler Inv. GMBH v. Corinthian Colls., Inc., 7 540 F.3d 1049, 1061 (9th Cir. 2008) (citing Tellabs, Inc. v. Makor 8 Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)). 9

When a motion to dismiss is granted, a district court must 10 decide whether to grant leave to amend. Generally, the Ninth Circuit has a liberal policy favoring amendments and, thus, leave 12 to amend should be freely granted. See, e.g., DeSoto v. Yellow

Freight System, Inc., 957 F.2d 655, 658 (9th Cir. 1992). However, 14 a court does not need to grant leave to amend in cases where the 15 court determines that permitting a plaintiff to amend would be an 16 exercise in futility. See, e.g., Rutman Wine Co. v. E. & J. Gallo 17

Winery, 829 F.2d 729, 738 (9th Cir. 1987) ("Denial of leave to 18 amend is not an abuse of discretion where the pleadings before the 19 court demonstrate that further amendment would be futile."). 20 21


A. Quiet Title

The purpose of a quiet title action is to settle all 24 conflicting claims to a piece of real property and to declare each 25 interest or estate to which the parties are entitled. Newman v. 26 Cornelius, 3 Cal. App. 3d 279, 284 (Cal. Ct. App. 1970). "A quiet 27 title action must include: (1) a description of the property in 28 question; (2) the basis for plaintiff's title; and (3) the adverse claims to plaintiff's title." Ananiev v. Aurora Loan Servs., LLC, 2 C 12--2275 SI, 2012 WL 4099568, at *3 (N.D. Cal. Sept. 17, 2012) 3

(citing Cal. Civ. Proc. Code § 760.020). "In order to satisfy the 4 second requirement, plaintiff must allege that he has discharged 5 his debt, regardless to whom it is owed." Id. (citing Kelley v. 6 Mort. Elec. Registration Sys., Inc., 642 F. Supp. 2d 1048, 1057 7 (N.D. Cal. 2009)). Plaintiff does not fulfill any of the 8 requirements of a quiet title claim in the FAC, nor does she 9 clarify this claim in her opposition. Defendant argues that the 10 Court should therefore dismiss Plaintiff's quiet title claim with prejudice. The Court declines to do so, since it is not evident 12 that amendment would be futile or prejudicial.

Plaintiff's quiet title claim is DISMISSED with leave to 14 amend, if Plaintiff can factually plead such a claim in accordance 15 with the law described above. 16

B. Plaintiff's Remaining Claims

As to Plaintiff's remaining claims, Defendants raise a number 18 of arguments: (1) Plaintiff's FAC does not meet the plausibility 19 standard of Rule 8 of the Federal Rules of Civil Procedure; (2) 20 Plaintiff's fraud claims are time-barred, fail to meet Rule 9(b)'s 21 particularity standards, state no cause of action because Defendant 22 owed no duty to Plaintiff as a borrower, and are conclusory; (3) 23

Plaintiff's negligence claim fails because Defendants owed no duty 24 of care; and (4) Plaintiff's UCL claims all fail because Plaintiff 25 has failed to plead injury, is time-barred from raising the claim 26 based on the loan origination date, and fails to state the fraud-27 based claims with particularity. MTD at 4-13. 28 Plaintiff's opposition brief does not fully join these 2 arguments: its main purposes appears to be to request leave to 3 amend Plaintiff's complaint to correct the deficiencies that 4

Defendants describe. See generally Opp'n. As such, the Court 5 finds it appropriate at this point to discuss Plaintiffs' requests 6 for amendment instead of attempting to evaluate Defendants' 7 arguments on these issues. 8

The Court is cognizant of Defendants' arguments, and of the 9 deep pleading defects in Plaintiff's FAC. However, the present 10 facts do not indicate to the Court that it would be impossible for Plaintiff to cure her FAC's deficiencies by amendment, that 12 amendment would prejudice Defendant, or that further amendment would cause undue delay. 14

The Court GRANTS Defendants' motion and DISMISSES all of 15

Plaintiff's remaining claims. Plaintiff has leave to amend her 16 complaint, limited to the precise issues that Plaintiff herself 17 indicated as curable deficiencies. Plaintiff is reminded to plead 18 facts in accordance with Rule 8, Ashcroft v. Iqbal, 556 U.S. 662 19 (2009), and Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). 20

Plaintiff must not assert merely conclusory or threadbare 21 allegations in her amended complaint. The amendable claims, 22 according to Plaintiff, are as follows: 23

Illegality of the Mortgage Loan: Plaintiff has leave to amend the complaint to allege that the mortgage loan upon which Defendant relies was illegal and void from the day it was signed. Opp'n at 6.

Completion of the Loan Application: Plaintiff has leave to amend the complaint to state that she never completed any loan application. Id. at 6-7.

Consent Decree: Plaintiff has leave to amend the complaint to provide detail on Defendants' alleged Consent Decree and its effects, including its purported imposition of a duty of care. Id. at 7-8. Statute of Limitations: Plaintiff has leave to amend the complaint to explain why equitable tolling should apply to toll the statute of limitations. Id. at 9.

Vagueness: Plaintiff has leave to amend the complaint to identify the appropriate entities in the relevant causes of action, and to provide the dates of her interactions with loan modification officers, their names, and other necessary details to meet the standards of Rules 8 and 9(b). Id. at 9.

Joinder: Plaintiff has leave to amend the complaint to join Plaintiff's husband. Id. at 11.


For the reasons explained above, Defendants CitiBank, N.A., 3 and CitiMortgage, Inc.'s motion to dismiss Plaintiff Gina 4 Sanguinetti's First Amended Complaint is GRANTED. Plaintiff's 5 complaint is DISMISSED with leave to amend. Plaintiff has thirty 6

(30) days from this Order's signature date to file an amended 7 complaint. Failure to do so may result in this action being 8 dismissed with prejudice. Any new complaint must avoid repeating 9 the dismissed complaint's mistakes. 10



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