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Agbowo v. Nationstar Mortgage LLC

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

May 5, 2014

THERESA AGBOWO, et al., Plaintiffs,
v.
NATIONSTAR MORTGAGE LLC, Defendant.

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS [Re: ECF No. 7]

LAUREL BEELER, Magistrate Judge.

INTRODUCTION

Theresa Agbowo and Margaret Agbowo (collectively, "Plaintiffs") sued Nationstar Mortgage ("Nationstar") and Does 1-100 in Alameda County Superior Court for claims related to "Defendant's" or "Defendants'" failure to provide them with a loan modification and "Defendant's" subsequent foreclosure upon their property. See Notice of Removal, Ex. A ("Complaint"), ECF No. 1 at 14-20.[1] Nationstar removed the action to this court and now moves to dismiss Plaintiffs' Complaint. Notice of Removal, ECF No. 1; Motion, ECF No. 7. Pursuant to Civil Local Rule 7-1(b), the court finds this matter suitable to be determined without oral argument and vacates the May 15, 2014 hearing. Upon consideration of the papers permissibly submitted and the applicable authority, the court GRANTS Nationstar's motion and DISMISSES WITHOUT PREJUDICE Plaintiffs' Complaint. Plaintiffs may file a First Amended Complaint by May 26, 2014.

STATEMENT

I. THE FORECLOSURE UPON THE AGBOWOS' PROPERTY

On either September 7, 2006, Lazarus Agbowo, Theresa Agbowo, and Margaret Agbowo (collectively, the "Agbowos")[2] executed a promissory note and borrowed $417, 000 from Home Loan Specialists, Inc. See Request for Judicial Notice ("RJN")[3], Ex. A ("Deed of Trust"), ECF No. 7-1 at 5-30. The loan was secured by Agbowo's property located at 850 53rd Street, Oakland, California, 94608 (the "Property"). Complaint ¶ 1; Deed of Trust, ECF No. 7-1. The promissory note eventually was transferred to "Defendant." Complaint ¶ 2.

At some time, "Plaintiff" (singular) remodeled a "duplex, " which presumably is the Property, to fit "their" (plural) needs. Id. ¶ 12. Thereafter, either "Plaintiff" or "Plaintiffs" moved into the duplex. Id.

On November 10, 2010, Quality Loan Service Corporation ("Quality Loan"), as the agent for the beneficiary of the Deed of Trust, recorded a Notice of Default stating that the Agbowos were $27, 019.50 in arrears on the loan as of November 5, 2010. RJN, Ex. B ("Notice of Default"), ECF No. 7-2 at 2-6. Nearly two years later, on November 8, 2012, Quality Loan recorded a Notice of Trustee's Sale stating that the Agbowos were in default and that a trustee's sale would take place on December 5, 2012. RJN, Ex. E ("First Notice of Trustee's Sale"), ECF No. 7-2 at 47-48.

Apparently, this trustee's sale did not occur, because Quality Loan recorded a second Notice of Trustee's Sale on April 30, 2013. RJN, Ex. F ("Second Notice of Trustee's Sale"), ECF No. 7-2 at 50-51. This time, the trustee's sale was scheduled to take place on May 28, 2013. Id.

This trustee's sale apparently did not take place either, as Quality Loan recorded a third Notice of Trustee's Sale on August 28, 2013. RJN, Ex. G ("Third Notice of Trustee's Sale), ECF No. 7-2 at 53-54. The trustee's sale was scheduled to take place on September 26, 2013. Id. This time, the sale did take place. Complaint ¶ 4; RJN, Ex. H ("Trustee's Deed Upon Sale"), ECF No. 7-2 at 56-57. Although Plaintiffs allege that "Defendant" both sold and bought the Property, Complaint ¶ 4, the Trustee's Deed Upon Sale indicates that the Property was purchased by Nationstar for $424, 037.53. Trustee's Deed Upon Sale, ECF No. 7-2 at 56-57. "Defendant" (presumably Nationstar) then retained an attorney to evict them from the Property, but in January 2014, after it became clear that the eviction process was not viable, "Defendant" sold the Property to George Lazada. Complaint ¶ 4. Mr. Lazada apparently has agreed not to proceed with an eviction for the time-being. Id.

II. PLAINTIFFS' APPLICATION FOR A LOAN MODIFICATION

Plaintiffs allege that, through their agent Hyatt Brokers, they submitted an application for a loan modification to "Defendant" or "Defendants" on July 26, 2013, but "Defendant" or "Defendants" "wrongfully refused" to consider them for one. Id. ¶¶ 5, 8-9. Plaintiffs also allege that they "submitted a request for a mortgage modification with Defendant after the note and deed of trust were transferred to [it], " id. ¶ 17, but if by "Defendant" Plaintiffs refer to Nationwide, this allegation conflicts with Plaintiffs' allegation that they submitted an application to Nationwide on July 26, 2013 because Nationwide did not purchase the Property until September 26, 2013. Regardless, Plaintiffs also allege that they submitted "the information requested by Defendant" along with the application. Id. ¶ 9. "Defendant, " however, "continued to request additional information from Plaintiffs, " such as "a signed IRS form 4506T-EZ and a profit and loss statement for rental property owned by Margaret Agbowo." Id .; see also id. ¶ 13 (same). "Each time that Defendant requested this information Plaintiffs provided the fully executed forms which were faxed to them by the agent hired to help them obtain a mortgage modification." Id .; see also id. ¶ 5 (alleging that "Defendant made several requests for... information from Plaintiffs" and that "[e]ach of these requests was replied to with the requested information"). Plaintiffs allege that they "reasonably believed that all of the information required by Defendant had been provided to Defendant." Id. ¶ 9. Plaintiffs also allege that the September 26, 2013 trustee's sale took place "just 3 days after [P]laintiffs submitted information requested by "[D]efendant." Id. ¶ 7.

Plaintiffs allege that they received a letter from "Defendant" dated December 3, 2013 that stated that their loan modification application was denied "as there were two addresses submitted and [Defendant] could not verify that the owner actually lived at the [Property] that was [the] security for the loan." Id. ¶ 6; see also id. ¶ 14 (same).

On December 16, 2013, Plaintiffs, through their counsel, "sent a letter to Defendant requesting that [it] provide a copy of Plaintiffs[] file in regard to the mortgage modification." Id. ¶ 10. ...


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