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Grajeda v. Bank of America, N.A.

United States District Court, Ninth Circuit

June 10, 2013

MONICA GRAJEDA, Plaintiff,
v.
BANK OF AMERICA, N.A., et al., Defendants.

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS WITH PREJUDICE

IRMA E. GONZALEZ, District Judge.

Before the Court is Defendants' motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). [Doc. No. 13.] For the reasons below, Defendants' motion is GRANTED and Plaintiff's claims are DISMISSED WITH PREJUDICE without leave to amend.

BACKGROUND

This is a mortgage case. Plaintiff Monica Grajeda, proceeding pro se, filed a complaint in San Diego County Superior Court alleging an array of state law claims, all of which relating to a purported wrongful foreclosure. [Doc. No. 1 Ex. A.] Defendants timely removed to this court, [ see Doc. No. 1 at 2], and moved to dismiss for failure to sate a claim. [Doc. No. 8.] Plaintiff failed to file an opposition, and the Court dismissed the complaint without prejudice and with leave to amend. [ See Doc. No. 10.] Plaintiff filed an amended complaint, [Doc. No. 12], which Defendants presently move to dismiss with prejudice, [Doc. No. 13]. Again, Plaintiff filed no opposition.

LEGAL STANDARD

Under Federal Rule of Civil Procedure 8(a)(2), "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). Motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) test the sufficiency of this required showing. New Mexico State Investment Council v. Ernst & Young LLP, 641 F.3d 1089, 1094 (9th Cir. 2011). "Dismissal is proper when the complaint does not make out a cognizable legal theory or does not allege sufficient facts to support a cognizable legal theory." Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011). And though pro se complaints enjoy "the benefit of any doubt, " Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010), Rule 8 still "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678.

DISCUSSION

Plaintiff's amended complaint fails to add any pertinent facts, much less cure the numerous deficiencies identified in the Court's previous order. Even affording every benefit of the doubt, Plaintiff's complaint again fails to allege sufficient facts to support any cognizable legal theory. In "the Ninth Circuit... plaintiffs do not enjoy unlimited opportunities to amend their complaints." Stone v. Conrad Preby's, 2013 WL 139939, at *2 (S.D. Cal. Jan. 10, 2013) (citing McHenry v. Renne, 84 F.3d 1172, 1174 (9th Cir.1996)). "Where... an amended complaint simply restate[s] the prior [dismissed claims] without curing their deficiencies, ' the Court properly dismisses with prejudice." Roger v. County of San Diego, Cal., 2013 WL 1629208, at *2 (S.D. Cal. April 15, 2013) (quoting McHenry, 84 F.3d at 1174). Thus, and for the additional reasons specified below, Defendants' motion to dismiss is GRANTED and Plaintiff's claims are hereby DISMISSED WITH PREJUDICE.

1. Breach of Contract

Plaintiff's breach of contract claim attempts to enforce the United States' Home Affordable Modification Program ("HAMP") as a third-party beneficiary. [Doc. No. 12 at 15-17.] "To sue as a third-party beneficiary of a contract, the third party must show that the contract reflects the express or implied intention of the parties to the contract to benefit the third party." Klamath Water Users Protective Ass'n v. Patterson, 204 F.3d 1206, 1211 (9th Cir. 2000). Borrowers such as Plaintiff are incidental rather than intended beneficiaries under HAMP and thus lack standing to enforce HAMP as third-party beneficiaries. See, e.g., Escobedo v. Countrywide Home Loans, Inc., 2009 WL 4981618, at *3 (S.D. Cal. Dec. 15, 2009). Accordingly, Plaintiff's breach of contract claim is DISMISSED.

2. Claims for Breach of Fiduciary Duty, Breach of Covenant of Good Faith and Fair Dealing, and Negligence

Plaintiff alleges claims for breach of fiduciary duty, breach of the covenant of good faith and fair dealing, and negligence, all premised on Defendants' failure to modify Plaintiff's loan under HAMP. [Doc. No. 12 at 15-17.] But Plaintiff fails to allege any duty of care, fiduciary or otherwise, owed by Defendants. "As a general rule, a financial institution owes no duty of care to a borrower when the institution's involvement in the loan transaction does not exceed the scope of its conventional role as a mere lender of money." Spencer v. DHI Mortg. Co., Ltd., 642 F.Supp.2d 1153, 1161 (E.D. Cal. 2009); see also Wagner v. Benson, 101 Cal.App.3d 27, 35 (Cal. 1980). Plaintiff alleges no facts suggesting that Defendants exceeded their role as lender of money. Because Plaintiff fails to allege any facts showing any duty owed, much less breached, Plaintiff's claims for breach of fiduciary duty, breach of the covenant of good faith and fair dealing, and negligence are DISMISSED.

3. Due Process Claims

Plaintiff alleges that Defendants' failure to modify Plaintiff's loan under HAMP constitutes a violation of Due Process under the Fifth Amendment. [Doc. No. 12 at 17-18.] "To be entitled to procedural due process, a party must show a liberty or property interest in the benefit for which protection is sought." Buckingham v. Sec'y of U.S. Dep't of Agric., 603 F.3d 1073, 1081 (9th Cir. 2010). "HAMP does not confer a protected property interest." Phu Van Nguyen v. BAC Home Loans Services, LP, 2010 WL ...


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