United States District Court, N.D. California, San Jose Division
ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND [RE: ECF 11]
BETH LABSON FREEMAN, District Judge.
Plaintiff Michael L. Katsch ("Katsch") filed this action to stop Defendant JP Morgan Chase ("Chase") from foreclosing on his home following his default on a mortgage loan. Chase has filed a motion to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted.
The Court has considered the complaint, briefing, and relevant legal authorities. With respect to Katsch's late-filed opposition, the Court has accepted the explanation set forth in the declaration of Katsch's counsel and, in the exercise of its discretion, has excused the late filing. For the reasons discussed below, the motion to dismiss is GRANTED WITH LEAVE TO AMEND.
In 2004, Katsch obtained a mortgage loan in the amount of $333, 700 from Washington Mutual Bank ("WAMU"). Compl. ¶¶ 8-10, ECF 1. WAMU subsequently was taken over by the Federal Deposit Insurance Corporation ("FDIC"), which sold certain of WAMU's assets - including Katsch's loan - to Chase. Id. ¶ 11; Def.'s RJN Exhs. B, C. In 2009, Katsch contacted Chase to request loan modification because the adjustable payments had become too large for him to manage. Compl. ¶ 21. A customer service representative told Katsch that he would have to be at least thirty days late on a loan payment to qualify for an assistance package. Id. Katsch then deliberately defaulted on his loan payment and called back. Id. That time a Chase representative told Katsch to send in his financial documents. Id. Katsch did so, but Chase never responded with either an approval or a denial of loan modification. Id. Katsch called Chase frequently for the next two and a half years. Id. Every few months, Chase stated that Katsch's documents had expired and that new documents were required. Id.
On July 3, 2012, Chase caused to be recorded a Notice of Default and Election to Sell under Deed of Trust. Def.'s RJN Exh. D, ECF 12. Upon receipt of the Notice of Default, Katsch filed a complaint with the Office of the Comptroller of the Currency ("OCC"), after which Chase called and informed Katsch that it would be investigating his file. Compl. ¶ 21. However, Chase never called him again. Id. When Katsch thereafter received a notice of trustee's sale, he contacted Chase and was told to resubmit his financial information, which he did immediately. Id. The sale of his home was cancelled and Katsch again waited for review of his file. Id. At that point, Katsch had submitted his financial information to Chase at least forty times and had called Chase more than 300 times. Id.
Subsequent notices of trustee's sale were recorded on September 26, 2013, February 27, 2014, and September 2, 2014. Def.'s RJN Exhs. F, H, and I, ECF 12. It is unclear from the record why multiple notices of sale were recorded. On September 17, 2014, Katsch filed this action in the San Benito County Superior Court, asserting claims for negligence, unfair business practices, and declaratory relief. On October 24, 2014, Chase removed the action to this Court on the basis of diversity of citizenship. The present motion to dismiss followed. Katsch represents in his opposition that the parties have stipulated that there will be no sale of the property until these judicial proceedings have been concluded. See Pl.'s Opp. at 2, ECF 20.
II. LEGAL STANDARDS
"A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted tests the legal sufficiency of a claim.'" Conservation Force v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011) (quoting Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001)). When determining whether a claim has been stated, the Court accepts as true all well-pled factual allegations and construes them in the light most favorable to the plaintiff. Reese v. BP Exploration (Alaska) Inc., 643 F.3d 681, 690 (9th Cir. 2011). However, the Court need not "accept as true allegations that contradict matters properly subject to judicial notice" or "allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (internal quotation marks and citations omitted). While a complaint need not contain detailed factual allegations, it "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when it "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
A. Claim 1 - Negligence
In Claim 1, for negligence, Katsch alleges that "Defendants owed Plaintiff a duty to provide him with mortgages and rates that are not predatory, as well as loan documents that are not unconscionable." Compl. ¶ 22. He further alleges that "[a]s a result of Defendants' failure to negotiate a loan modification in good faith, Plaintiff has been forced to pay an excessively high interest rate every month in order to repay the subject loans" and that "Plaintiff also presently faces potential foreclosure in light of the recent notice of possible foreclosure Defendants have sent to Plaintiff." Id. ¶ 23. Finally, Katsch alleges that "[a]s a direct and proximate result of Defendants' negligence, Plaintiff suffered and continues to suffer actual damages and is thereby entitled to general, special, and compensatory damages in amounts to be proven at trial." Id. ¶ 24.
Chase seeks dismissal of Claim 1 on the grounds that it did not owe Katsch a duty of care and that the claim is time-barred. In opposition, Katsch argues that Chase did owe him a duty of care but he ignores Chase's argument that the claim is time-barred. The statute of limitations appears to be dispositive. Under California law, a negligence claim must be brought within two years of accrual. Cal. Civ. P. Code § 335.1. Katsch's claim is based upon Chase's conduct commencing in 2009 and continuing "about 2 1/2 years." Compl. ¶ 21. The claim accrued at latest when Katsch received the notice of default. The complaint does not allege the precise date that he received the notice of default. However, the notice was recorded on July 3, 2012. Def.'s RJN Exh. D, ECF 12. A reasonable inference is that the notice was served upon Katsch at that time. Katsch did not file suit until more than two years later, on September 17, 2014.
Accordingly, the motion is GRANTED WITH LEAVE TO AMEND as to Claim 1. If Katsch chooses to amend the claim, he must allege facts showing that the claim is not time-barred - for example, that he received the notice of ...