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Greene v. Wells Fargo Bank, N.A.

United States District Court, N.D. California

May 7, 2015

ROSEMARY GREENE, Plaintiff,
v.
WELLS FARGO BANK, N.A., Defendant.

ORDER REGARDING MOTION TO DISMISS FIRST AMENDED COMPLAINT

JEFFREY S. WHITE, District Judge.

Now before the Court is the motion to dismiss filed by Defendant Wells Fargo Bank ("Defendant"). The Court has considered the parties' papers, relevant legal authority, and the record in this case. It finds the motion suitable for disposition without oral argument, and therefore VACATES the hearing scheduled for May 22, 2015. See Civil L.R. 7-1(b). For the reasons that follow, the Court hereby grants in part and denies in part Defendant's motion.[1]

BACKGROUND

The following facts are drawn from the complaint, and from judicially noticeable documents. Plaintiff Rosemary Greene ("Plaintiff") owns a home at 8000 Hansom Drive in Oakland, California (the "Property"), subject to a loan from Defendant. (First Amended Compl. ("FAC"), ¶ 1.) Beginning in 2009, Plaintiff struggled with her mortgage payments. (3:13-cv-02774-WHA, ECF No. 1 ¶ 12 ("Greene I Compl.").) Due to her loss in income, Plaintiff fell behind on her monthly mortgage payments. (FAC, ¶ 2.)

Plaintiff submitted a loan modification application. (Greene I Compl., ¶ 15.) From 2010 until 2013, Defendant continued to request additional documents and Plaintiff continued to supply them. ( Id. ) In 2013, Plaintiff's loan modification request was denied on the basis that "the amount due could not fit the 31% of gross income guideline provided under HAMP." ( Id. ¶ 16.) On August 28, 2013, Wells Fargo recorded a notice of default on the Property. (FAC, ¶ 2.)

During September and October 2014, Plaintiff spoke to several representatives from Defendant. (FAC, ¶ 3.) During these telephone conversations, Plaintiff requested a foreclosure prevention strategy and that she be assigned to a single point of contact. ( Id. ) She explained that she had experienced a change in her financial circumstances that warranted another review for a loan modification. ( Id. ) One of Defendant's representative told Plaintiff to make a factual misrepresentation regarding her income. ( Id. ) On October 20, 2014, Plaintiff submitted "a complete first lien loan modification application which included substantial evidence of her change in material financial circumstances." ( Id. )

Plaintiff was then informed that her application needed to be resent, which she did. ( Id., ¶ 4.) On October 27, 2014, Defendant's representative Tamara Harris requested additional pieces of information. Plaintiff sent the requested information on November 3, 2014. ( Id., ¶ 6.) Defendant then sent her a letter dated November 13, 2014 in which it acknowledged receipt of Plaintiff's loan modification application and requested some additional information. ( Id. ) Plaintiff has not received any documentation or representation from Defendant denying her application. ( Id. )

On November 7, 2014, Defendant recorded a notice of trustee's sale. ( Id. ¶ 5; RJN, Ex. J.) The notice stated that the trustee's sale was scheduled for November 25, 2014. (RJN, Ex. J.) Plaintiff alleges that the sale was scheduled for January 7, 2014. (FAC, ¶ 5.)

The Court granted a motion to dismiss Plaintiff's complaint and provided Plaintiff leave to amend her three claims: (1) violation of California Civil Code section 2923.6; (2) violation of California Civil Code section 2923.7; and (3) violation of California's Unfair Business Law ("UCL"), California Business and Professions Code sections 17200 et seq. Plaintiff filed her FAC which Defendant now moves to dismiss.

The Court shall address additional facts as necessary in the remainder of this Order.

ANALYSIS

A. Legal Standard for Motion to Dismiss.

A motion to dismiss is proper under Federal Rule of Civil Procedure 12(b)(6) where the complaint fails to state a claim upon which relief can be granted. The Court's "inquiry is limited to the allegations in the complaint, which are accepted as true and construed in the light most favorable to the plaintiff." Lazy Y Ranch LTD v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008). Even under the liberal pleadings standard of Federal Rule of Civil Procedure 8(a)(2), "a plaintiff's obligation to provide the grounds' of his entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)).

Pursuant to Twombly, a plaintiff must not merely allege conduct that is conceivable but must allege "enough facts to state a claim to relief that is plausible on its face." Id. at 570. "A claim has facial plausibility when the Plaintiff pleads factual content that allows the court to draw the reasonable inference that the Defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). If the allegations are insufficient to state a claim, a court should grant leave to amend, unless amendment would be futile. See, e.g., Reddy v. ...


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