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Andre v. Bank of America, N.A.

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

December 5, 2014

STEVEN ANDRE, Plaintiff,
BANK OF AMERICA, N.A., et al., Defendants

Steven Andre, Plaintiff, Pro se, Carmel, CA.

For Bank of America, NA, BAC Home Loans Servicing, L.P., Defendants: Benjamin Lee Wheeler, Reed Smith LLP, San Francisco, CA.

For SPS/Select Portofolio Servicing, Inc., Defendant: Regina Jill McClendon, LEAD ATTORNEY, Lindsey Elizabeth Kress, Locke Lord LLP, San Francisco, CA.


PAUL S. GREWAL, United States Magistrate Judge.

Like many homeowners, Plaintiff Steven Andre purchased his Salinas home in 2004 with the assistance of a mortgage loan secured by a deed of trust.[1] After Andre fell behind in his payments and struggled to get his loan modified, he confronted three separate notices of default and mounting balances. Eventually each default notice was rescinded, and Andre faces no pending notice or looming foreclosure.

Not satisfied, Andre filed this suit against the successor to the loan and deed and loan servicers Defendants Bank of America, BAC Home Loans Servicing, LP (" BANA") and Select Portfolio Servicing, Inc., alleging economic and other harm from the run-around he endured to get his payments reduced.[2] While Andre's experience is sympathetic, his complaint does not sufficiently allege facts to substantiate his twelve causes of action. The court GRANTS Defendants' motions to dismiss with leave to amend.


Over the course of the economic downturn, Andre experienced financial trouble and fell behind in his mortgage payments. To reduce those payments, in late 2010, Andre applied for a loan modification.[3] After a series of back and forths with various BANA representatives that spanned the next several years, Andre and his applications were repeatedly denied.[4] BANA's stated reasons for these denials were often procedural in nature--incomplete paperwork, inability to verify Andre's identity, among others.[5] While Andre persisted in his efforts, his account remained delinquent.

Meanwhile, Andre continued to make payments on his mortgage as best he could, but he continued to incur penalties for being in arrears.[6] Between 2010 and 2012, BANA issued three separate notices of default against Andre's property due to his payment delinquency.[7]

Each time, Andre was successful in obtaining a rescission.[8] There is currently no pending or looming foreclosure associated with his property. Andre nevertheless brought this suit against Defendants asserting twelve causes of action:[9] (1) accounting; (2) RICO violation; (3) National Mortgage Settlement violation; (4) California Homeowners Bill of Rights violation; (5) Federal Consumer Financial Protection Bureau rules violation; (6) injunctive relief; (7) intentional interference with prospective economic advantage; (8) negligent interference with prospective economic advantage; (9) violation of the covenant of good faith and fair dealing; (10) negligence; (11) Unfair Business Act; and (12) declaratory relief.


This court has subject matter jurisdiction pursuant to 28 U.S.C. § § 1331 and 1367. The parties further consented to the jurisdiction of the undersigned magistrate judge under 28 U.S.C. § 636(c) and Fed.R.Civ.P. 72(a).

As a preliminary matter, Defendants request judicial notice of several documents, including various deeds of trust and notices and rescissions of default.[10] The court may take judicial notice of a " fact that is not subject to reasonable dispute because it is generally known" or " can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." [11] In the event that the contents of a matter of public record are in dispute, the court may take notice of the fact of the document at issue but not of the disputed information contained within.[12] Because Andre disputes the contents of these documents and their representations about the status of his loan payments, the court will take judicial notice only of the fact that these documents were recorded in the public record.

At this stage of the case, the court must accept all material allegations in the complaint as true and construe them in the light most favorable to the non-moving party.[13] The court's review is limited to the face of the complaint, materials incorporated into the complaint by reference, and matters of which the court may take judicial notice.[14] However, the court need not accept as ...

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