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Agbowo v. Nationstar Mortgage LLC

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

February 12, 2015

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

ORDER GRANTING NATIONSTAR'S MOTION TO DISMISS PLAINTIFFS' SECOND AMENDED COMPLAINT [Re: ECF No. 67]

LAUREL BEELER, Magistrate Judge.

INTRODUCTION

Plaintiffs Theresa Agbowo and Margaret Agbowo sued Nationstar Mortgage LLC ("Nationstar") and Does 1-100 in Alameda County Superior Court for claims related to Nationstar's failure to provide them with a loan modification and 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' Second Amended Complaint. ( See Notice of Removal, ECF No. 1; Second Amended Complaint ("SAC"), ECF No. 56; Motion, ECF No. 67.) Pursuant to Civil Local Rule 7-1(b), the court finds this matter suitable to be determined without oral argument and vacates the February 19, 2015 hearing. Upon consideration of the allegations in the Second Amended Complaint, the facts subject to judicial notice, the papers submitted, and the applicable legal authority, the court grants Nationstar's motion.

STATEMENT

I. THE FORECLOSURE UPON THE AGBOWOS' PROPERTY

In 2006, Lazarus's and Theresa's daughter, Margaret, wished to purchase a home. (SAC ¶ 7.) After discussing the matter with her parents, they decided to purchase the property at 850 53rd Street, Oakland, California, 94608 (the "Property"). (Id. ) To purchase it, on September 6, 2006 or September 7, 2006, the Agbowos[2]-Lazarus, Theresa, and Margaret-executed a promissory note and borrowed $417, 000 from Home Loan Specialists, Inc. ( See id.; Request for Judicial Notice ("RJN"), Ex. A ("Deed of Trust"), ECF No. 7-1 at 5-30.[3]) The loan was secured by the Property. (SAC ¶ 7; Deed of Trust, ECF No. 7-1.) Shortly thereafter, the Agbowos remodeled the Property, and Margaret has lived in it since then. (SAC ¶ 7.)

Sometime between 2006 and 2009 the deed of trust was transferred from Home Loan Specialists to Aurora Loan Services. (Id. ¶ 8.) In 2009, Margaret and Theresa applied to Aurora Loan Services for a loan modification. (Id. ¶ 9.) Aurora "gave them monthly trial payments, which [they] faithfully made...." (Id. ) (Margaret and Theresa do not allege whether the loan modification then was granted on not. ( See generally id. )) "After the trial payment plan was completed the deed of trust and [promissory n]ote was transferred to Nationstar." (Id. ¶ 9.)

"After the loan was transferred to Nationstar, Margaret and Theresa applied for [a] loan modification with Nationstar." (Id. ¶ 10.) "Margaret and Theresa provided Nationstar with all documents requested." (Id. )

On November 10, 2010, "[w]hile the loan modification was pending[] with Nationstar, " Quality Loan Service Corporation ("Quality Loan"), as the agent for Nationstar, recorded a Notice of Default stating that the Agbowos were $27, 019.50 in arrears on the loan as of November 5, 2010. (Id. ¶ 11; RJN, Ex. B ("Notice of Default"), ECF No. 7-2 at 2-6.)

To stave off a foreclosure, Margaret filed for bankruptcy on March 11, 2011. (SAC ¶ 11.) She dismissed the bankruptcy action in 2012. (Id. )

In July or August 2012[4], Margaret and Theresa applied again to Nationstar for loan modification. (Id. ¶ 12.) They hired Hyatt Brokers Associate ("Hyatt") to help them with the process. Id. Hyatt faxed a "third party authorization" to Nationstar on August 30, 2012. (Id. )

"Thereafter Nationstar requested additional information which was provided promptly after each request." (Id. ¶ 13.) On October 10, 2012, Margaret and Theresa (through Hyatt) supplied Nationstar with additional information in support of their loan modification application. ( Id., Ex. A, ECF No. 56-1 at 3.)

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. (Id. ¶ 11; RJN, Ex. E ("First Notice of Trustee's Sale"), ECF No. 7-2 at 47-48.)

This trustee's sale did not occur. ( See SAC ¶ 11.) Instead, on November 16, 2012, November 19, 2012, December 13, 2012, December 19, 2012, January 3, 2013, January 29, 2013, February 8, 2013, and March 21, 2013, Margaret and Theresa (again through Hyatt) responded to Nationstar's repeated requests for additional information in support of their loan modification application. (Id. ¶¶ 13-14 & Ex. 1, ECF No. 56-1 at 4-11.)

On April 30, 2013, Quality Loan recorded a second Notice of Trustee's Sale. (Id. ¶ 11; 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. (RJN, Ex. F, ECF No. 7-2 at 50-51.)

This trustee's sale did not take place, either. ( See SAC ¶ 11.) Instead, on May 13, 2013, June 4, 2013, and July 12, 2013, Margaret and Theresa again (through Hyatt) responded to Nationstar's requests for additional information in support of their loan modification application. (Id. ¶¶ 13-15 & Ex. 1, ECF No. 56-1 at 12-14.) In July 2013, "Hyatt contacted Nationstar[s] loan modification department and verified that [it] had received all the requested documents." (Id. ¶ 15.) On July 25, 2013, "Nationstar notified Margaret and Theresa that their loan modification request was denied." (Id. [5])

The next day, on July 26, 2013, Margaret and Theresa submitted a new loan modification request to Nationstar. (Id. ¶ 16 & Ex. 1, ECF No. 56-1 at 15-20.) On July 30, 2013 and August 22, 2013, Margaret and Theresa again (through Hyatt) responded to Nationstar's requests for additional information in support of their loan modification application. (Id. ¶ 16 & Ex. 1, ECF No. 56-1 at 21-22.)

On August 28, 2013 Quality Loan recorded a third Notice of Trustee's Sale. (Id. ¶¶ 11, 16; 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. (SAC ¶ 16; RJN, Ex. G, ECF No. 7-2 at 53-54.) Margaret and Theresa (through Hyatt) continued to provide Nationstar with additional information in support of their pending loan modification application. (SAC ¶ 16.) They did so on September 5, 2013, September 11, 2013, September 20, 2013, and September 23, 2013. (Id. ¶ 16 & Ex. 1, ECF No. 56-1 at 31-34.)

Despite Margaret and Theresa continually supplying Nationstar with additional information in support of their pending loan modification application, the trustee's sale took place on September 26, 2013. (Id. ¶ 16; RJN, Ex. H ("Trustee's Deed Upon Sale"), ECF No. 7-2 at 56-57.) Nationstar purchased the Property for $424, 037.53. (SAC ¶ 16; Trustee's Deed Upon Sale, ECF No. 7-2 at 56-57.)

On December 3, 2013, Nationstar transferred the Property to Jorge Lasada through a Quitclaim Deed. (SAC ¶ 16.)

Margaret and Theresa did not learn that the trustee's sale actually had occurred until December 3, 2013, when an attorney for Nationstar served them with a three-day Notice to Quit the Property. (Id. ¶ 17.) The attorney was told that Margaret and Theresa's loan modification application was still pending and was told of the dates on which they submitted additional information to Nationstar. (Id. ) After this, Nationstar apparently took no further action to evict Margaret and Theresa from the Property. (Id. )

By letter dated December 3, 2013 (more than two months after the Property was sold at the trustee's sale), Nationstar notified Margaret and Theresa that their loan modification application was denied. (Id. ¶ 18 & Ex. B, ECF No. 56-1 at 2.) The ...


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