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Tinker v. Aurora Loan Services

United States District Court, E.D. California

April 7, 2015



KIMBERLY J. MUELLER, District Judge.

This matter is before the court on the motion by plaintiff Sonika J.E. seeking leave to file a sixth amended complaint, to amend the court's scheduling order, and requesting the court take judicial notice. Pl.'s. Mot., ECF No. 126. Plaintiff also seeks reconsideration of the court's previous dismissal of her wrongful foreclosure claim against defendant Aurora Loan Services, LLC (Aurora). Id. Defendant has filed an opposition and its own request for judicial notice. ECF Nos. 130, 131. The court decides the matter without a hearing, and for the following reasons, DENIES plaintiff's motions for leave to file an amended complaint and for reconsideration. It GRANTS both parties' request for judicial notice. The motion to amend the scheduling order is DENIED AS MOOT in light of the court's granting of the parties' stipulation on March 10, 2015. ECF No. 138.


The court previously has reviewed in detail the factual context of the case through several rounds of motion practice. See ECF Nos. 56, 75, 94. The claims in the operative complaint arise from a $600, 000 loan obtained by plaintiff Tinker from Greenpoint Mortgage Funding, Inc. in April 2007. See Letter from Aurora Loan Services, Ex. B., Fifth Amended Complaint (5AC), ECF No. 106. The loan was secured by a deed of trust recorded against real property located at 1977 Green Meadow Lane in Meadow Vista, California. Id. On or about July 2007, plaintiff learned Aurora would control the servicing rights of the note and deed of trust, and all payments should be made to Aurora. Pl.'s Mem. P. & A. in Supp. Mot., ECF No. 126-1 (Mem. P. & A.) at 2. Plaintiff's remaining fraud claims are based on the allegation Aurora induced her to enter into three forbearance and "workout" agreements and to make payments to Aurora in excess of her monthly mortgage. 5AC at 8. It is undisputed Aurora purchased the property after plaintiff defaulted (ECF No. 130, Ex. 7) and quitclaimed the property to Nationstar Mortgage LLC on December 4, 2013 (ECF No. 130, Ex. 8).

Plaintiff seeks two days from the date of this order to file a sixth amended complaint to state causes of action for (1) fraud; (2) violation of 42 U.S.C. § 3205 and California Civil Code § 51, Gender/Sex Discrimination; (3) breach of contract; (4) breach of the covenant of good faith and fair dealing; (5) negligence; (6) promissory estoppel; (7) violation of California Civil Code §§ 2923.6(c) and 2923.6(e)(1)(2); (8) wrongful foreclosure; and (9) violations of California Business and Professions Code §§ 17200 et seq. Mot. at 2. Plaintiff also seeks thirty days to serve proposed new defendant Nationstar Mortgage, LLC, which has recently acquired defendant Aurora; a modification of the scheduling order to extend the time by no more than forty-five days to conduct factual discovery on the issues raised in the sixth amended complaint; and reconsideration of the court's prior dismissal of the original wrongful foreclosure claim, on the basis of an intervening change of law. Id. at 2; Mem. P. & A. at 13. Plaintiff argues "no prejudice will befall the defendant" if the motion is granted and "there are no dispositive motions pending before the court." Mem. P. & A. at 9.


Plaintiff asks the court to take judicial notice of pleadings and orders filed in Placer County Superior Court related to the unlawful detainer action pending in that court. Pl.'s Req. for Judicial Notice, ECF No. 126-2. Defendant asks the court to take judicial notice of a number of documents recorded in Placer County, all relating to the acquisition of and foreclosure on 1977 Green Meadow Lane. Defs.' Req. for Judicial Notice, Exs. 1-8. Specifically, defendant's requested documents are: the Deed of Trust, signed by plaintiff and recorded on April 17, 2007; Corporate Assignment of Deed of Trust, dated December 15, 2008 and recorded on September 2, 2010; the Notice of Default and Election to Sell Under Deed of Trust, dated and recorded on December 15, 2008; Substitution of Trustee dated December 15, 2008 and recorded on January 28, 2009; Notice of Trustee's Sale dated March 16, 2009, and recorded the next day; Trustee's Deed Upon Sale, dated April 14, 2011 and recorded April 18, 2011; and a Quitclaim Deed, dated April 11, 2012 and recorded on December 4, 2013.

Under Rule 201 of the Federal Rules of Evidence, a court may take judicial notice of adjudicative facts "not subject to reasonable dispute" because they are "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Neither party objects to the court's consideration of these documents, most of which are attached to the complaint. All are public records. The court GRANTS both parties' requests. Lee v. County of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (court may take judicial notice of matters of public record).


On March 8, 2011, Tinker and former plaintiff Christian Pederson filed an action against Aurora Loan Services, LLC and Mortgage Electronic Registration Systems (MERS), as well as against Greenpoint Mortgage Funding, Inc., Marin Conveyancing Corp., Quality Loan Service Corp., LSI Title Company, Greenpoint Mortgage Funding Trust Mortgage Pass-Through Certificates, Series 2007-ARI, and twenty Doe defendants, alleging violations of the Homeowners Equity Protection Act (HOEPA), 15 U.S.C. § 1639, et seq.; the Real Estate Settlement Procedures Act (RESPA), 12 U.S.C. § 2601, et seq.; the Truth in Lending Act (TILA), 15 U.S.C. § 1601, et seq. and Regulation Z § 226.4; fraudulent misrepresentation; breach of fiduciary duty; unjust enrichment; civil conspiracy; RICO; quiet title; usury and fraud; wrongful foreclosure; and breach of trust instruments. ECF No. 2.

On April 7, 2011, plaintiffs filed a motion for a temporary restraining order, alleging that a trustee's sale of their house was scheduled for April 11, 2011, but that defendants did not have the legal authority to foreclose on plaintiffs' property. ECF No. 9. Although plaintiffs gave defendants notice of their application for a restraining order, defendants did not respond. ECF No. 14. The court denied the application on April 8, 2011. ECF No. 15. Defendants Aurora and MERS then filed a motion to dismiss and to expunge a lis pendens on April 15, 2011. ECF Nos. 16, 17. On April 20, 2011, plaintiffs filed a motion for a preliminary injunction, ECF No. 19, and on the same day, defendants Quality Loan Service Corporation and LSI Title Company filed Declarations of Non-Monetary Status under California Civil Code § 29241. ECF No. 18. On May 18, 2011, plaintiffs objected to these declarations. ECF No. 34.

On August 29, 2011, the court granted defendants' motion to dismiss, allowing plaintiff Tinker leave to file an amended complaint as to some of the claims; overruled plaintiff's objections to Quality and LSI Title's declaration of non-monetary status; denied the motion to expunge the lis pendens and denied plaintiffs' motion for a preliminary injunction. ECF No. 56.

Plaintiffs filed their first amended complaint (FAC) on September 16, 2011, stating claims for: (1) TILA violations; (2) RESPA violations; (3) fraud; (4) unjust enrichment; (5) civil RICO violations; (6) wrongful foreclosure; and (7) quiet title. ECF No. 57. On September 30, 2012, the court granted defendant's motion to dismiss, dismissing defendant Greenpoint and granting plaintiffs leave to file an amended complaint as to the fraud claim against defendant Aurora only. ECF Nos. 58, 59, 75.

Plaintiffs filed their second amended complaint on October 22, 2012 (ECF No. 76) stating a single claim for fraud, but alleging six individual fraudulent communications. Id. ¶¶ 42-66. The first three such representations are workout agreements, which plaintiffs allege falsely represent they would be considered for a loan modification and that the payments would be applied to the arrearage. Id. ¶¶ 42-44. The fourth representation is that plaintiffs were in default. Id. ¶¶ 45-46. The fifth representation is that Aurora had considered plaintiffs for a HAMP (Home Affordable Modification Program) loan. Id. ¶¶ 47-60. The sixth representation is that Aurora had authority to foreclose on plaintiff's home. Id. ¶ 61. Defendant Aurora moved to dismiss this complaint on December 5, 2012, arguing that the complaint exceeded the scope of amendment the court had allowed; failed to meet the requisite specificity requirements, failed to allege the elements of fraud, and that one plaintiff lacked standing. ...

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