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Owens v. Bank of America, N.A.

United States District Court, Ninth Circuit

November 6, 2013

JOANN R. OWENS AND LARRY M. OWENS, Plaintiffs,
v.
BANK OF AMERICA, N.A., ET AL., Defendants.

ORDER DENYING PLAINTIFFS' MOTION FOR RECONSIDERATION

YVONNE GONZALEZ ROGERS, District Judge.

Plaintiff Joanne R. Owens and Larry M. Owens ("Plaintiffs") have filed their Motion for Reconsideration and For Leave To File Proposed Amended Complaint Or Set Hearing (Dkt. No. 136). Defendant Bank of America, N.A. ("BANA") filed its opposition to the Motion on August 13, 2013. (Dkt. No. 138).

Plaintiffs ask the Court to reconsider of this Court's April 30, 2013 Order (1) Denying In Part And Granting In Part Motion To Dismiss of Defendant Bank of America; and (2) Denying In Part And Granting In Part Motion To Dismiss As To Defendants J.P. Morgan Mortgage Acquisition Corporation, Marix Servicing, LLC, and Residential Credit Solutions. (Dkt. No. 126), which dismissed their fraud, negligence, and Equal Credit Opportunity Act ("ECOA") claims against BANA. They also seek to amend the complaint to add two additional claims: one for intentional infliction of emotional distress against BANA and one for violation of the federal Fair Debt Collection Practice Act ("FDCPA") against Marix.

Having carefully considered the papers submitted and the pleadings in this action, and for the reasons set forth below, the Court hereby DENIES the Motion for Reconsideration and to amend the Second Amended Complaint.

I. RECONSIDERATION BASED UPON NEW FACTS

In support of their request for reconsideration of dismissal of their claims, Plaintiffs offer declarations filed in the multi-district litigation entitled In re: Bank of America Home Affordable Modification Program (HAMP) Contract Litigation, MDL No. 2193 (D. Mass.). Those declarations of former BANA employees indicate that BANA offices in North Carolina, Texas, and New Jersey engaged in a pattern of delay and unfounded rejection with respect to HAMP modification applications, in part to convince applicants to accept higher rate, internal refinancing with BANA. ( See Dkt. No. 137, Declaration of Robert Kane, Exh. 1 at ¶ 8.) They also aver that BANA did not process payments received and told customers they had not received payments or paperwork when they actually had. ( See Kane Dec., Exh. 1-5.)

Plaintiffs argue that such policies and practices support their claims for fraud and negligence against BANA. The Court is not persuaded by this argument. Leaving aside questions of whether these declarations are "new facts" that could not have been presented previously, or are admissible in these proceedings, Plaintiffs have not demonstrated that they have any bearing on their proposed claims here. First, the declarations concern HAMP loan modifications that were denied by a number of BANA offices in other parts of the country. The practices discussed therein, while certainly concerning, do not affect the allegations by Plaintiffs here:

• a (non-HAMP) loan modification offer extended to Plaintiffs in October 2009 with a seven-day acceptance window;
• Plaintiffs' late return of their acceptance after the seven days had lapsed;
• BANA's acceptance of an alleged "mortgage contribution fee" and three loan payments in the modified amount thereafter;
• BANA's notification that the original modification offer was "lost, " and extension of a HAMP modification offer to Plaintiffs, which they rejected.

(SAC ¶¶ 18-21.) There are no allegations of improper denial of a HAMP modification or failure to credit payments in the Second Amended Complaint or Proposed Third Amended Complaint. Based upon the allegations of the SAC and the matters judicially noticeable, the Court previously determined that the issue to be resolved was whether Plaintiffs' late-acceptance of BANA's October 2009 modification offer was waived by BANA because it accepted additional consideration for the modification beyond other monies already owed by Plaintiffs.

More importantly, Plaintiffs' Proposed Third Amended Complaint ("PTAC"), submitted with the Motion for Reconsideration, does not reflect any new allegations based upon these newly discovered facts in the MDL. Instead, the PTAC submits new allegations about the Plaintiffs themselves. For instance, the PTAC now offers allegations that:

• At the end of October 2009, Plaintiffs received a letter from BANA "welcoming" them and assigning them a new ...

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