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Jenkins v. Bank of America, N.A.

United States District Court, C.D. California

January 26, 2015

William L. Jenkins, et al.
Bank of America, N.A., et al

Attorneys for Plaintiffs: Not Present.

Attorneys for Defendants: Not Present.




A. Procedural Background

On May 8, 2014, William L. and Adriana Pasetto-Jenkins (collectively, " plaintiffs") filed this action against Bank of America, N.A. (" BofA"), ReconTrust Company, N.A. (" ReconTrust"), and various fictitious defendants (collectively, " defendants") in Los Angeles Superior Court.[1] Defendants timely removed the case to this court on June 12, 2014, invoking the court's federal question jurisdiction under 28 U.S.C. § 1331, and its diversity jurisdiction under 28 U.S.C. § 1332(a).[2] Plaintiffs' original complaint alleged claims for violation of the California Homeowner's Bill of Rights (" HBOR") and the Perata Mortgage Relief Act (" PMRA"), California Civil Code § § 2923.5, 2923.7; violation of California's Unfair Competition Law (" UCL"), California Business and Professions Code § 17200, et seq; fraud in the inducement; violation of the Real Estate Settlement Procedures Act (" RESPA"), 15 U.S.C. § 1601, et seq .; breach of implied covenant of good faith and fair dealing; and breach of fiduciary duty.[3] Following the removal, on June 19, 2014, BofA filed a motion to dismiss the complaint and ReconTrust filed a declaration of non-monetary status under California Civil Code § 2924l.[4] The motion and declaration were stricken by the court the same day.[5] Later that day, BofA refiled its motion to dismiss.[6] On September 4, 2014, the parties filed a joint stipulation to permit plaintiffs to file a first amended complaint.[7] On September 10, 2014, the court entered an order on the stipulation, and in light of the first amended complaint, denied BofA's motion to dismiss the original complaint as moot.[8]

Plaintiffs' amended complaint alleges claims for violation of the HBOR and the PMRA; [9] violation of the UCL; [10] fraud in the inducement; [11] breach of implied covenant of good faith and fair dealing; [12] and unfair and deceptive business practices.[13] On October 7, 2014, defendants filed a motion to dismiss plaintiffs' first amended complaint, which plaintiffs oppose.[14]

B. Factual Background[15]

Plaintiffs allege that they own property at 26822 Wyatt Lane, Stevenson Ranch, California 91381-1002.[16] They contend they purchased the property on or about April 7, 2006, using funds obtained from a a $670, 000 mortgage loan made by BofA.[17] The loan was secured by a deed of trust recorded against the property.[18] Plaintiffs assert BofA advised them that their monthly payment would be approximately $4, 234.96 per month.[19]

Plaintiffs contend that in or about November 2009, they began to have difficulty making payments and keeping the loan current due to the downturn in the economy, as William Jenkins, the family's sole source of income, lost his job as vice president of ad sales at LATV, LLC.[20] As a result, plaintiffs filed a Chapter 7 bankruptcy petition in December 2011, and received a discharge from United States Bankruptcy Court on May 17, 2012.[21]

In December 2011, plaintiffs purportedly received a notice of trustee's sale from ReconTrust stating that it was the duly appointed trustee under the deed of trust, and that a foreclosure sale had been scheduled on December 29, 2011.[22] Plaintiffs contend they received no prior notice of the sale.[23] After receiving the notice, plaintiffs allegedly requested that BofA modify their loan so they could avoid foreclosure.[24] Plaintiffs assert that they were denied a modification, that they were systematically misled and given inconsistent information, that a decision was delayed, and that they were verbally abused during the loan modification process.[25] They assert their application was reassigned to multiple BofA representatives before finally being assigned to Calpurnia Moses, one of BofA's customer relationship managers.[26] Plaintiffs allege Moses was impossible to reach. Most of their calls to Moses went straight to voicemail; although plaintiffs left messages, Moses rarely returned the calls. Plaintiffs also assert they sent facsimiles containing financial information to Moses. On several occasions, however, BofA would insist that the documents had not been received, or request further additional or duplicate information.[27] Plaintiffs allege that while the " runaround" was ongoing, they succeeded in postponing the foreclosure sale until May 24, 2012.[28]

On May 17, 2012, approximately one week before the pending foreclosure sale, plaintiffs purportedly mailed a hardship letter to BofA, explaining that their loan modification application was still under active review and that they wished to postpone the foreclosure sale further. They also applied for mortgage assistance under the " Making Home Affordable Program, " and attempted to avoid foreclosure by listing their property for short sale.[29] At some point between July 12 and September 13, 2012, they obtained a buyer; the sale was canceled on September 13, 2012, however, and the escrow terminated on or about November 7, 2012.[30]

Plaintiffs contend that, after the short sale fell through, in December 2012, they notified BofA of their financial situation, sought assistance under various government programs, and mailed another hardship letter.[31] BofA purportedly reassigned their loan to another customer relationship manager, Nadia Montufar, who proved to be just as unresponsive as Moses.[32] Plaintiffs assert that BofA continued to request further duplicative documentation of hardship, and that they complied with all requests; once again, however, they were purportedly misled, delayed, and verbally abused by BofA and its agents.[33]

Plaintiffs contend that sometime in the fall of 2013, they received a second notice of trustee sale stating that ReconTrust had scheduled a foreclosure sale for December 9, 2013. They assert that they were under the impression that BofA was still actively reviewing their loan modification application.[34] Thus, they immediately contacted BofA to inquire about the status of that application, [35] sent another loan modification application to the bank, and were assigned a new customer relationship manager, Margarita Guardodo. The application contained forms plaintiffs had already submitted numerous times; once again, however, BofA purportedly requested that they produce duplicative information.[36]

Plaintiffs allege that between December 2013 and the end of January 2014, they were systematically misled, delayed, and verbally abused by BofA.[37] After being assigned to Guardodo, BofA allegedly assigned another new customer relationship manager, Jimmy Rodriguez, on December 7, 2013. Plaintiffs allege that Rodriguez never contacted them.[38] On January 27, 2014, they purportedly received a letter from BofA requesting the same financial information related to loan modification they had previously provided.[39] Finally, on January 31, 2014, BofA sent plaintiffs a letter denying their loan modification application; it stated that plaintiffs' only remedy was a short sale.[40] Plaintiffs assert they appealed BofA's loan modification denial on February 7, 2014.[41] During the appeal process, when plaintiffs' asked for updates, BofA simply responded that it needed more time and more documentation.[42] On February 27, 2014, BofA denied the appeal.[43]

On March 17, 2014, BofA allegedly sent plaintiffs forms indicating that they might qualify for a loan modification program; the programs, however, were those for which BofA had already determined plaintiffs did not qualify.[44] Plaintiffs contend they diligently sought relief under the programs identified in BofA's correspondence, but BofA has continued to request duplicative documentation and to mislead them concerning possible alternative solutions.[45] Plaintiffs ...

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