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Fevinger v. Bank of America N.A.

United States District Court, N.D. California, San Jose Division

March 31, 2014



PAUL S. GREWAL, Magistrate Judge.

Before the court is Defendants Bank of America, N.A. and U.S. Bank N.A. Trustee's motion to dismiss all claims in the first amended complaint ("FAC").[1] Plaintiff Rachel Fevinger opposes.[2] The parties appeared for a hearing.[3] After considering the arguments, the court GRANTS Defendants' motion but only IN-PART.


In September 2005, Fevinger obtained a loan in the amount of $650, 000.00 to finance property located at 3583-3585 Mauricia Avenue, Santa Clara, CA 95051.[4] The Deed of Trust ("DOT") identifies Fevinger as the borrower, American Mortgage Express Corp. as the lender, Fidelity National Title as trustee, and Mortgage Electronic Registration Systems, Inc. as nominee and beneficiary.[5] On September 22, 2005, Fevinger obtained a home equity line of credit in the amount of $97, 000.00 secured by a DOT and assignment of rents.[6] On August 30, 2011, MERS recorded an assignment of the beneficial interest of the DOT to U.S. Bank, National Association as Trustee for Wamu Mortgage Pass-Through Certificates, Series WMALT 2006-AR1 ("U.S. Bank").[7] Bank of America then acted as the servicer of the loan.[8]

Fevinger stayed current on her loan from 2005 to 2009.[9] In 2009 the loan payment amounts increased[10] and Fevinger missed a few payments.[11] Fevinger received correspondence from Bank of America inviting her to consider modifying her loan agreement.[12] In August of 2010 she reached out to Bank of America, and was informed that she was a good candidate for loan modification. Fevinger alleges she was "ready, willing, and able" and "interested in reinstating" her loan, but was "lured" into awaiting a new payment schedule.[13]

Around August 30, 2010 Fevinger applied for a loan modification, but did not hear anything within a few weeks.[14] Fevinger called the Bank of America number from the correspondence and was told over the phone that it was U.S. Bank's "policy not to foreclose on borrowers who had submitted complete loan modification applications and we're awaiting a decision."[15] Fevinger called the same Bank of America phone number a few weeks later, but was unable to obtain any information about the status of her application.[16] In October of 2010 Fevinger wrote a letter asking that Bank of America give her an update on the status of her application.[17] In November of 2010 Bank of America wrote back that it was still reviewing her application and would provide a more detailed response within twenty days.[18] After Fevinger did not hear back within twenty days, she called to check the status of her application and was instructed to reapply.[19]

Fevinger asked if she could resubmit her old application, but was told to await new application materials from Bank of America.[20] In December of 2010 Fevinger sought a reinstatement calculation but a "phone representative" told her to await new loan modification application materials and was reassured that her loan would not be foreclosed while she was awaiting a loan modification.[21] The new loan modification application materials finally arrived in February 2011.[22] Fevinger "immediately submitted" all requested documentation in February, waited a "short time" and began to regularly follow up on the status of her application.[23] In March or April of 2011 Bank of America informed Fevinger that her application was being reviewed.[24] On April 4, 2011, Bank of America informed Fevinger that several pages of her modification were missing from her application.[25] Fevinger responded by "immediately" faxing the requested documents, but they were not received.[26] She re-faxed the pages on May 2 and May 3, 2011, and on May 6, 2011, Bank of America acknowledged receipt.[27]

On May 13, 2011 Fevinger called to "follow up" on the status of her application and alleges that she "was still ready willing and able to catch up with her mortgage" payments.[28] Fevinger continued to follow up on the status of her application in July 2011 and was informed on July 19, 2011, that she needed "to provide updated financials."[29] On August 9, 2011, Fevinger spoke with a bank representative and was informed that her application was still not "complete because it lacked utility bills and a required letter regarding HOA fees."[30] Fevinger alleges she had already submitted these documents.[31]

Over the course of August and September different Bank of America representatives told Fevinger to submit additional documents for review.[32] In October Fevinger received two letters from Bank of America informing her that her loan modification application could not be reviewed because she had not submitted paperwork regarding her social security benefits, retirement benefits, bank statements and tax returns.[33] In November 2011, Fevinger received a Home Affordable Mortgage Program ("HAMP") denial letter.[34]

Following her HAMP denial, Fevinger contacted Bank of America and was directed that "the best way to rectify" the denial of her loan modification application was to refile a new application.[35] At this point, Fevinger could no longer afford to pay off the "mounting arrears, late fees and attorney's fees" and "was very much at the mercy" of the bank.[36] During 2012 Fevinger "was forced to jump through hoops" in her contact with several Bank of America representatives and in September received a notice of default and subsequent denial of loan modification because her arrears had grown too large.[37]

On August 15, 2012, U.S. Bank substituted ReconTrust Company, N.A. as trustee under the DOT.[38] On September 6, 2012, ReconTrust recorded a notice of default because of Fevinger's arrears of $196, 431.68.[39] A notice of trustee's sale was recorded by ReconTrust on December 12, 2012.[40] No foreclosure sale of the property has occurred.

Fevinger now brings claims for (1) breach of the implied covenant of good faith and fair dealing, (2) breach of contract, (3) negligent misrepresentation, (4) fraud, (5) violation of Cal. Civil Code ยง 2924 and (6) unfair competition.[41]


A. Motion to ...

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