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Boring v. Nationstar Mortgage, LLC

United States District Court, E.D. California

June 27, 2014

CARTHEL DENNIS BORING, an individual, Plaintiff,
NATIONSTAR MORTGAGE, LLC, a limited liability company; BANK OF AMERICA, N.A., a national business association; and DOES 1-50, inclusive, Defendants.


GARLAND E. BURRELL, Jr., District Judge.

Defendants Nationstar and Bank of America each moves under Federal Rule of Civil Procedure ("Rule") 12(b)(6) for dismissal of claims in Plaintiff's First Amended Complaint ("FAC"). The FAC consists of state claims alleged under California Civil Code sections 2924(a), 2923.6(c), 2923.7(b)(3), and 2923.7(c); the implied covenant of good faith and fair dealing; and the California Unfair Competition Law ("UCL"). Plaintiff opposes the dismissal motions. Bank of America also seeks an order expunging the lis pendens recorded against Plaintiff's property; however, no basis for granting this relief has been shown, and therefore it is denied.


Nationstar's dismissal motion includes a request that judicial notice be taken of the following documents recorded in the Butte County Recorder's Office: 1) the Deed of Trust recorded October 30, 2007; 2) the Notice of Default and Election to Sell Under Deed of Trust ("Notice of Default") recorded March 5, 2013; and 3) the Notice of Trustee's Sale ("Notice of Sale") recorded May 31, 2013. Plaintiff does not oppose this request.

"As a general rule, we may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion.' We may, however, ... take judicial notice of matters of public record.'" United States v. Corinthian Colls. , 655 F.3d 984, 998-99 (9th Cir. 2011) (citations omitted) (quoting Lee v. City of Los Angeles , 250 F.3d 668, 688-89 (9th Cir. 2001)). Since the referenced documents are matters of public record, the judicial notice request is granted.


The dismissal motions concern the following allegations in the FAC and judicially noticed information. In 2007, Plaintiff refinanced the loan agreement for his residential property ("the property") with Countrywide Bank, FSB. (FAC. ¶ 11, ECF No 22; (Nationstar's Req. for Judicial Notice ("RJN"), Ex. A, ECF No. 40-1.) In late 2008, Defendant Bank of America acquired Plaintiff's loan from Countrywide. (Id.) Subsequently, Plaintiff applied for a loan modification. ( Id. ¶ 12.) In April 2011, Bank of America responded by "inform[ing] Plaintiff... that the reason he was not being modified was because he was not delinquent in his mortgage payments. [Bank of America told] Plaintiff that... to obtain a modification it was absolutely necessary for Plaintiff to stop making payments on his loan." (Id.) Subsequently, Plaintiff missed three mortgage payments, and then submitted another loan modification application to Bank of America. ( Id. ¶ 13.)

"[I]n November 2011, while Plaintiff was still in modification review, Plaintiff learned that Defendant Nationstar had obtained his mortgage...." ( Id. ¶ 14.) Shortly thereafter Plaintiff brought his account current. (Id.)

"[B]eginning in January 2012... Plaintiff began submitting his loan modification application documents to Nationstar through his customer service manager, Amber Orebaugh. In May 2012, Ms. Orebaugh confirmed receipt of all documents necessary for the application, and Plaintiff awaited a response." ( Id. ¶ 31.)

In August 2012, Plaintiff attempted to make an online payment and learned that "his account had been frozen." ( Id. ¶ 15.) Plaintiff then attempted to contact a customer service manager to remedy the issue, but "he was put on hold or transferred between lines without any assistance." (Id.) He "endured [this] for weeks." (Id.)

"On or about September 6, 2012, " Plaintiff had a telephone conversation with a Nationstar representative, during which Plaintiff requested "to make a telephonic payment, but was informed that he could not do so because his account was frozen." ( Id. ¶ 16.) Plaintiff was told to contact Ms. Orebaugh for further information yet was unable to reach her. (Id.)

On March 5, 2013, Trustee Pite Duncan filed the Notice of Default concerning Plaintiff's loan in the Butte County Recorder's Office. ( Id. ¶ 17; RJN Ex. D, ECF No. 40-1.) On May 31, 2013, Pite Duncan filed the Notice of Sale of Plaintiff's property in the Butte County Recorder's Office. (FAC ¶ 20; RJN Ex. E, ECF No. 40-1.) The Notice of Sale "indicated that Plaintiff's property would be sold at auction at 3:30 p.m. on June 26, 2013." (FAC ¶ 20; see RJN Ex. E.) "Plaintiff had not [yet] received a written determination on his loan modification application, despite the fact that he had been informed that his application was complete and in review." (FAC ¶ 31.)

"On or about May 8, 2013, Plaintiff received a letter from Nationstar which indicated his Single Point of Contact ["SPOC"] had changed...." (FAC ¶ 18.) Two days later, Plaintiff received a letter informing him that Nationstar had assigned him a different single point of contact. ( Id. ¶ 19.) "Then, on or about June 10, 2013, " Plaintiff again received a letter from Nationstar informing him that Plaintiff's single point of contact had changed. ( Id. ¶ 21.) Each single point of contact "refused to answer Plaintiff's telephone calls... and did not communicate with Plaintiff." ( Id. ¶ 30.)


a. Legal Standard

Decision on a Rule 12(b)(6) dismissal motion requires determination of "whether the complaint's factual allegations, together with all reasonable inferences, state a plausible claim for relief." United States ex rel. Cafasso v. Gen. Dynamics C4 Sys., Inc. , 637 F.3d 1047, 1054 (9th Cir. 2011) (citing Ashcroft v. Iqbal , 556 U.S. 662, 678-79 (2009)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678 (citing Bell Atlantic v. Twombly , 550 U.S. 544, 556 (2007)).

When determining the sufficiency of a claim under Rule 12(b)(6), "[w]e accept factual allegations in the complaint as true and construe the pleadings in the light most favorable to the non-moving party." Fayer v. Vaughn , 649 F.3d 1061, 1064 (9th Cir. 2011) (internal quotation marks omitted). However, this tenet does not apply to "legal conclusions... cast in the form of factual allegations." Id . (internal quotation marks omitted). "Therefore, conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss." Id . (internal quotation marks omitted); see also Iqbal , 556 U.S. at 678 ("A ...

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