United States District Court, N.D. California
TINA M. VASQUEZ, Plaintiff,
BANK OF AMERICA, N.A., et al., Defendants.
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS SECOND AMENDED COMPLAINT Re: ECF No. 37
JON S. TIGAR, District Judge.
In this home foreclosure action, the Court previously granted in part and denied in part a motion to dismiss by Bank of America, N.A. ("BANA") and Bank of New York Mellon ("BNYM") (collectively, "Defendants"), and dismissed certain claims in Tina M. Vasquez's ("Plaintiff") first amended complaint ("FAC") without prejudice. Order Granting in Part and Denying in Part Motion to Dismiss ("Previous Order"), 2013 WL 6001924, ECF No. 15 (Nov. 12, 2013). In the Previous Order, the Court gave Plaintiff specific guidance about what allegations she would need to plead if she re-asserted the claims dismissed without prejudice, and advised Plaintiff that she could re-assert the claims dismissed if she filed a second amended complaint, and, "in a separate document, specifically identify the new allegations she has made to respond to the deficiencies addressed in this." 2013 WL 6001924, at *18.
Plaintiff has now filed a second amended complaint ("SAC"), which Defendants have moved to dismiss. ECF No. 35. The Court adopts by reference the factual and procedural history, legal standards, and statement of jurisdiction from the Previous Order. 2013 WL 6001924, at *1-5.
Defendants move to dismiss Plaintiff's second cause of action (for violation of Cal. Civ. Code § 2924, et seq. ), third cause of action (for violation of 11 U.S.C. § 1691, et seq., the Equal Credit Opportunity Act ("ECOA")), fifth cause of action (for promissory estoppel), sixth cause of action (for fraud) and seventh cause of action (for negligent misrepresentation). The Court addresses each in turn.
A. California Civil Code §2924 et seq. ("California's Nonjudicial Foreclosure Statute")
The Court dismissed this claim as pled in the FAC after noting that "there is no specific right of action provision, analogous to section 2924.12, that provides for civil enforcement of the specific requirements of sections 2924 et seq., " and that "California courts have declined to read into the statute an implied right of action to enforce its substantive requirements." Previous Order, 2013 WL 6001924, at *9 (citing Gomes v. Countrywide Home Loans, Inc. , 192 Cal.App.4th 1149, 1155 (2011), review denied (May 18, 2011), cert. denied, ___ U.S. ___, 132 S.Ct. 419). While "California courts do look to the statute's requirements in considering an equitable action to set aside a wrongful foreclosure sale, " Plaintiff has not alleged that any such sale has taken place. Previous Order, 2013 6001925, at *9 (citing Lona v. Citibank, N.A. , 202 Cal.App.4th 89, 104 (2011)).
The FAC indicated that Plaintiff was entitled to damages, attorney's fees and an injunction. FAC ¶ 33. The Court dismissed the claim and advised Plaintiff that in any further amended complaint she must "clarify the nature of her cause of action, and "may only seek remedies for wrongful foreclosure' if those remedies have been recognized to be available in an action for which a violation of the wrongful foreclosure statute is a factual predicate. Previous Order, 2013 WL 6001924, at *10.
In the SAC, Plaintiff no longer seeks damages or attorney's fees, and now only "seek[s] equity from this Court enjoining Defendants from carrying out any unlawful foreclosure sales." FAC ¶ 33. She claims that this remedy has been recognized to be available in an action alleging noncompliance with California's nonjudicial foreclosure statute, citing Mabry v. Superior Court , 185 Cal.App.4th 208, 225 (2010) and Ragland v. U.S. Bank Nat. Assn. , 209 Cal.App.4th 182, 201 (2012).
As discussed in the Court's Previous Order, Mabry held only that section 2923.5 creates a private right of action to seek injunctive relief, and did not address whether the nonjudicial foreclosure statute does. Ragland, on the other hand, specifically held that section 2924g(d), a provision of the nonjudicial foreclosure statute, creates a private right of action.
Ragland does not discuss or distinguish other California cases which have held that there is generally no private right of action for injunctive relief under California law to enforce the requirements of the nonjudicial foreclosure statute. See, e.g., Gomes , 192 Cal.App.4th at 1154-57. But even assuming Ragland is good law, by its terms it extends only to section 2924g(d). There are good reasons why the Ragland court might have held that "a private remedy is necessary to make [section 2924g(d)] effective, " without extending that holding to the remainder of the nonjudicial foreclosure statute. 209 Cal.App.4th at 201. Like section 2923.5, which was analyzed in Mabry, section 2924g(d) is a provision governing the timing and notice of a trustee's sale. Both provisions entitle a homeowner to more time in her home, independent from whether the ultimate foreclosure is permissible. Therefore, the reasons to infer an action for injunctive relief apply with more force to those provisions than they do to the nonjudicial foreclosure statute more broadly.
Plaintiff does not allege any violation section 2924g(d) or any other timing provision of the nonjudicial foreclosure statute. See SAC ¶¶ 30-32 (invoking Cal. Civ. Code §§ 1511 & 2924(a)(1)(C)). Her allegations stem from her claims that she is not in breach of her loan agreement and that Defendants are not entitled to foreclose. This situation is much more squarely controlled by Gomes. California law does not appear to recognize injunctive relief as ...