United States District Court, S.D. California
ORDER GRANTING IN PART AND DENYING IN PART NATIONSTAR'S MOTION TO DISMISS [DOC. 8]
THOMAS J. WHELAN, District Judge.
On August 13, 2013, Plaintiff Rey Carreno Gopar commenced this action against Defendants Nationstar Mortgage, LLC ("Nationstar") and Freo California, LLC in the San Diego Superior Court. Thereafter, Nationstar removed this action to this Court. Nationstar now moves to dismiss Mr. Gopar's First Amended Complaint ("FAC") for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Mr. Gopar opposes.
The Court decides the matter on the papers submitted and without oral argument. See Civ. L.R. 7.1(d.1). For the following reasons, the Court GRANTS IN PART and DENIES IN PART Nationstar's motion to dismiss.
On or about May 27, 2005, Mr. Gopar purchased real property in Oceanside, California under a deed of trust duly recorded in the County of San Diego. (FAC ¶¶ 1, 3.) He was subsequently notified that Nationstar became the servicer of the note and deed of trust, and he was directed to make monthly payments to Nationstar. ( Id. ¶ 4.)
Sometime thereafter, Mr. Gopar "encountered some difficulty in making the monthly payments on the property and incurred arrears in the payments." (FAC ¶ 4.)
On an unspecified subsequent date, Mr. Gopar alleges that he, "as allowed under the U.S. Department of Treasury Home Affordable Modification Program (HAMP), made a timely request for a loan modification and submitted a complete loan modification package to Nationstar for consideration." (FAC ¶ 4.) He adds that "Nationstar undertook review of plaintiff's application and for several months held plaintiff's loan modification under review." ( Id. ¶ 5.) And, "[d]uring the interim, plaintiff kept in touch with Nationstar and provided all documentation and information required for consideration of a loan modification." (Id.)
On another unspecified date, Mr. Gopar alleges that Nationstar filed a Notice of Default and Election to Sell the property and commenced foreclosure proceedings while his loan-modification application was "under consideration." (FAC ¶¶ 5-6.) Mr. Gopar allegedly "protested this procedure and requested assistance from the Making Home Affordable (MHA Help)." ( Id. ¶ 6.) According to Mr. Gopar, "MHA escalated plaintiff's request for assistance and on March 8, 2013[, ] Defendant Nationstar sent plaintiff [sic] written notification that it was reviewing plaintiff's concerns and would provide MHA Help a [sic] response no later than April 7, 2013." (Id.) Nationstar then postponed the trustee's sale from an unspecified date to April 2, 2013. ( Id. ¶ 7.)
On April 2, 2013, the property was sold at a trustee's sale. (FAC ¶ 8.) Shortly thereafter, Mr. Gopar's counsel sent a letter to Nationstar "demanding that the unlawful foreclosure sale be rescinded." (Id.) According to Mr. Gopar, one month later, on May 24, 2013, "Nationstar acknowledged it made a mistake regarding the sale of plaintiff's property and approved a Trial Payment Plan loan modification with payments." (Id.) Mr. Gopar further alleges that he "has made payments as required under the Trial Payment Plan Agreement and is still making payments to Nationstar, each of which Nationstar has accepted and kept for its use to the exclusion of plaintiff." (Id.)
On or about June 4, 2013, Nationstar "apparently" filed a Notice of Rescission of the "wrongful foreclosure sale it had conducted." (FAC ¶ 9.) Though neither he nor his counsel were notified of the rescission, Mr. Gopar nonetheless continued making payments in accordance with the Trial Payment Plan Agreement. (Id.)
On August 2, 2013, Nationstar denied Mr. Gopar's loan-modification application, based allegedly on his "fail[ure] to make the required Trial Period Plan payments." (FAC ¶ 11.) Mr. Gopar insists that he "has not failed to make Trial Period Plan Payments and is current on said payments, " and "[i]n fact[, ]... has performed in excess of the requirements of the Trial Period Plan Agreement." (Id.)
On August 13, 2013, Mr. Gopar commenced this action in the San Diego Superior Court. Thereafter, Nationstar removed this action to this Court. To date, Freo California has not appeared in this action. On October 28, 2013, Mr. Gopar filed his FAC, asserting causes of action for: (1) breach of contract; (2) breach of the implied covenant of good faith and fair dealing; (3) conversion; (4) promissory estoppel; (5) fraud/misrepresentation; (6) negligence; (7) negligent infliction of emotional distress ("NIED"); and (8) unfair and unlawful business practices. Nationstar now moves to dismiss the FAC. Mr. Gopar opposes.
II. LEGAL STANDARD
The court must dismiss a cause of action for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the complaint. Navarro v. Block , 250 F.3d 729, 732 (9th Cir. 2001). The court must accept all allegations of material fact as true and construe them in light most favorable to the nonmoving party. Cedars-Sanai Med. Ctr. v. Nat'l League of Postmasters of U.S. , 497 F.3d 972, 975 (9th Cir. 2007). Material allegations, even if doubtful in fact, are assumed to be true. Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007). However, the court need not "necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Warren v. Fox Family ...