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Andre v. Bank of America

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

May 8, 2015

STEVEN ANDRE, Plaintiff,
BANK OF AMERICA, N.A., et al., Defendants.


PAUL S. GREWAL, Magistrate Judge.

In this second round of Rule 12 motions, Defendants Bank of America, BAC Home Loans Servicing, LP ("BANA") and Select Portfolio Servicing, Inc., move to dismiss Plaintiff Steven Andre's First Amended Complaint on the grounds that his complaint does not sufficiently allege facts to substantiate his fourteen causes of action. Because the motion went unopposed, the court GRANTS Defendants' motions.


Over the course of the economic downturn, Andre experienced financial trouble and fell behind in his mortgage payments. To reduce those payments, in late 2010, Andre applied for a loan modification.[1] After a series of back and forths with various BANA representatives that spanned the next several years, Andre and his applications were repeatedly denied.[2] BANA's stated reasons for these denials were often procedural in nature-incomplete paperwork, inability to verify Andre's identity, among others.[3] While Andre persisted in his efforts, his account remained delinquent.

Meanwhile, Andre continued to make payments on his mortgage as best he could, but he continued to incur penalties for being in arrears.[4] Between 2010 and 2012, BANA issued three separate notices of default against Andre's property due to his payment delinquency.[5]

Each time, Andre was successful in obtaining a rescission.[6] There is currently no pending or looming foreclosure associated with his property. Andre nevertheless brought this suit against Defendants asserting twelve causes of action:[7] (1) accounting; (2) RICO violation; (3) National Mortgage Settlement violation; (4) California Homeowners Bill of Rights violation; (5) Federal Consumer Financial Protection Bureau rules violation; (6) injunctive relief; (7) intentional interference with prospective economic advantage; (8) negligent interference with prospective economic advantage; (9) violation of the covenant of good faith and fair dealing; (10) negligence; (11) Unfair Business Act; and (12) declaratory relief. The court previously dismissed Andre's complaint finding that he had alleged insufficient facts to state a claim, but granted leave to amend. This time around, Andre added four additional claims[8] without seeking leave of court or consent of Defendants: conversion, violation of the False Claims Act, fraud and conspiracy. For the reasons discussed below, Defendants' motions are GRANTED.


This court has subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1367. The parties further consented to the jurisdiction of the undersigned magistrate judge under 28 U.S.C. §636(c) and Fed.R.Civ.P. 72(a).

As a preliminary matter, Defendants request judicial notice of several documents, including various deeds of trust and notices and rescissions of default.[9] The court may take judicial notice of a "fact that is not subject to reasonable dispute because it is generally known" or "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned."[10] In the event that the contents of a matter of public record are in dispute, the court may take notice of the fact of the document at issue but not of the disputed information contained within.[11] Because Andre disputes the contents of these documents and their representations about the status of his loan payments, the court will take judicial notice only of the fact that these documents were recorded in the public record.


First, Andre's first, fourth, fifth and sixth causes of action for conversion, violation of the False Claims Act, fraud and conspiracy were improperly brought and thus must be dismissed with prejudice. Fed.R.Civ.P. 15 requires a party to obtain the opposing party's written consent or the court's leave before amending his complaint to add a new claim if the time to amend as a matter of course has passed.[12] And this, Andre failed to do. Andre never sought leave of the court or Defendants to add new claims to his FAC. And there is no suggestion in this court's previous order granting dismissal with leave to amend that the amendment could include claims outside those initially pleaded.[13] On this basis alone, these new claims are barred, and Andre will not be permitted to assert them in any future pleading.

Second, Andre fails to oppose Defendants' motions to dismiss. Rather, he files a misplaced objection to the motions on procedural grounds.[14] That Andre objected to the filing of the motions to dismiss does not excuse his failure to oppose them. The motions thus are GRANTED as unopposed. The court is tempted to deny leave to amend at this juncture, but in light of Andre's pro se status, the court will give him one last chance. Any amended pleading shall be filed within 14 days.

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