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Ferchau v. Citimortgage, Inc.

United States District Court, Ninth Circuit

January 2, 2014

CHARLES FERCHAU, Plaintiff,
v.
CITIMORTGAGE, INC.; and DOES 1-100, Inclusive, Defendants.

ORDER GRANTING MOTION TO DISMISS WITHOUT PREJUDICE

LUCY H. KOH, District Judge.

Plaintiff Charles Ferchau ("Plaintiff") brings this action for breach of contract, violation of California Civil Code § 2923.6, promissory estoppel, negligence, negligent misrepresentation, and violation of California Business and Professions Code § 17200, et. seq., against Defendant CitiMortgage ("Defendant"). The case arises out of a mortgage on Plaintiff's home, located at 18270 Enderson Court, Morgan Hill, California 95037. Pending before the Court is Defendant's Motion to Dismiss. ECF No. 14. Plaintiff filed an untimely Opposition, ECF No. 26, to which Defendant has objected, ECF No. 28. Pursuant to Civil Local Rule 7-1(b), the Court finds this matter appropriate for resolution without oral argument and hereby VACATES the hearing on this motion set for January 9, 2014, at 1:30 p.m. The Court further CONTINUES the Case Management Conference set for January 9, 2014, at 1:30 p.m. to March 12, 2014, at 2 p.m. For the reasons stated below, the Court GRANTS the Motion to Dismiss without prejudice.

I. BACKGROUND

A. Factual Background

Plaintiff is the owner of the property on Enderson Court in Morgan Hill. ECF No. 9 ¶ 1. Plaintiff acquired a mortgage of nearly $1.3 million from Defendant in March 2006. Id. ¶ 26. Plaintiff alleges that he is current on his mortgage payments, but that his wife's illness has led to circumstances that might prevent him from making his mortgage payments. Id. ¶¶ 27-28, 30. In 2012, Plaintiff requested mortgage assistance from Defendant on the basis of his hardship and the fact that the Property was worth $400, 000 less than the mortgage due to the economic downturn. Id. ¶ 29. Defendant's employees confirmed that Plaintiff's hardship was a strong indicator of Plaintiff's likely "imminent default." Id. ¶ 57. Further, Defendant's employees allegedly told Plaintiff that they had a legal obligation to respond to every requesting homeowner and that Defendant was the only authority that could rescue Plaintiff from foreclosure. Id. ¶¶ 58, 64.

Nevertheless, Plaintiff alleges that Defendant has refused to cooperate or accommodate Plaintiff and has ignored the fact that Plaintiff is facing imminent default despite Defendant's knowledge of Plaintiff's financial situation. Id. ¶¶ 31, 50. Plaintiff alleges that Defendant has several "in-house" programs that could provide Plaintiff relief, but that Defendant has refused to provide any assistance, letters explaining the denial of assistance, or applications for foreclosure alternatives despite Plaintiff's constant requests. Id. ¶¶ 31, 50. Plaintiff alleges that Defendant's upper management told employees to not send Plaintiff an application and to keep "pretending" that assistance would be "right around the corner." Id. ¶ 63. Plaintiff contends that but-for Defendant's failure to allow Plaintiff to apply for assistance and to consider such an application, Plaintiff would not be facing imminent foreclosure. Id. ¶ 58.

Plaintiff's legal contention is that Defendant's failure to provide or consider assistance violates its contractual obligations and several California laws. Plaintiff contends that these violations have forced Plaintiff to incur unspecified out-of-pocket expenses and legal and attorneys' fees in connection with the instant lawsuit and that these violations have unjustly enriched Defendant. Id. ¶¶ 48, 79.

B. Procedural History

The procedural history of this case can be described, at best, as odd. Plaintiff filed his Complaint in Santa Clara County Superior Court on December 14, 2012. Se ECF No. 1, Ex. A. Defendant timely removed the action to this Court on March 1, 2013, due to the diversity of the parties. See ECF No. 1.

On March 8, 2013, Defendant filed a Motion to Dismiss the Complaint. See ECF No. 6. Plaintiff filed an Amended Complaint on April 8, 2013. See ECF No. 7. On June 6, 2013, Defendant filed a Motion to Dismiss the Amended Complaint. See ECF No. 14. Plaintiff did not timely oppose the Motion under Civil Local Rule 7-3(a), and on June 30, 2013, Defendant filed a notice of non-opposition. See ECF No. 18.

On August 6, 2013, noting that Defendant had difficulty reaching Plaintiff for the purposes of filing a Joint Case Management Statement and the lack of opposition to the Motion to Dismiss, this Court issued an Order to Show Cause Why Case Should Not be Dismissed for Failure to Prosecute. See ECF No. 24. The Court stated that the Order to Show Cause did "not authorize Plaintiff to file an untimely opposition to the [M]otion to Dismiss." Id. at 2. Yet, Plaintiff filed an untimely Opposition to the Motion to Dismiss on August 7, 2013. See ECF No. 26. The Opposition was signed by Plaintiff's counsel Art Hoomiratana. See id. at 14. Defendants' filed a response noting the impropriety of the Opposition. See ECF No. 28.

On August 28, 2013, following the hearing on the Order to Show Cause, this Court issued a Minute Order. See ECF No. 33. In that Order, this Court stated that the docket showed that Art Hoomiratana and Antoinette Marino were representing Plaintiff, but counsel that appeared for Plaintiff at the hearing, John Wood, stated that neither Mr. Hoomiratana or Ms. Marino were representing Plaintiff. Id. The Court ordered Plaintiff to correct the docket to clarify which attorney represented Plaintiff. Id. The Court further ordered Plaintiff's counsel to file, by August 30, 2013, declarations from John Wood, Art Hoomiratana, and any paralegals or staff at Mr. Hoomiratana's law firm on who, how, and when they received Defendant's Motion to Dismiss and the Court's Order to Show Cause. Id.

Plaintiff failed to meet this deadline. But on September 3, 2013, Plaintiff filed three declarations. The first two declarations-from John Wood and Art Hoomiratana-stated that neither Mr. Wood nor Mr. Hoomiratana had personal knowledge of when the firm became aware of the Motion to Dismiss and Order to Show Cause. See ECF Nos. 34-35. Mr. Hoomiratana's declaration further stated that he has been on sabbatical from his firm for the duration of this case. See ECF No. 35. In the third declaration, Cynthia Lynn, a paralegal at Mr. Hoomiratana's law firm, stated that she "became aware of the Motion to Dismiss or the Order to Show Cause when doing a routine docket check or when I received a telephone call/email from OPC, or as the case may be." See ECF No. 36. Ms. Lynn's declaration further stated that she believed that all ECF notifications were going to the email address of Antoinette Moreno, an attorney who used to work at Mr. Hoomiratana's law firm. See id.

The Court is still unclear on what exactly transpired. How Mr. Hoomiratana signed the Opposition to the Motion to Dismiss with no personal knowledge of how he or his firm became aware of the Motion is perplexing. Further, the fact that Mr. Hoomiratana is on sabbatical and ...


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