United States District Court, S.D. California
ORDER GRANTING IN PART AND DENYING IN PART WELLS FARGO'S MOTION TO DISMISS
LARRY ALAN BURNS, District Judge.
This action arises out of the Majors' default on their mortgage and Wells Fargo's subsequent initiation of foreclosure proceedings. The Court dismissed the Majors' original complaint, and the Majors filed a First Amended Complaint (FAC). (Docket no. 19.) Wells Fargo has filed a motion to dismiss the FAC. (Docket no. 20.)
I. Factual Background
After the Majors defaulted on their mortgage, Wells Fargo recorded a Notice of Default and Election to Sell Under Deed of Trust ("NOD") on February 1, 2013, a Notice of Trustee's Sale on May 2, 2013, and a second Notice of Trustee's Sale on March 10, 2014. The Majors' lawsuit is based primarily on Wells Fargo's alleged violations of the California Homeowner Bill of Rights (HBOR). Specifically, the Majors allege that defendants:
(1) never contacted them, or attempted to contact them to explore options of avoiding foreclosure, as required by California Civ. Code § 2923.55;
(2) noticed a sale on their home without first making a determination regarding their eligibility for a loan modification, in violation of California Civil Code § 2923.6;
(3) haven't provided them a single point of contact regarding the sale of their home, in violation of California Civil Code § 2923.7;
(4) failed to provide the notice of sale required by California Civil Code §§ 2924 and 2924f; and
(5) violated California Business and Professions Code § 17200 by violating the above-referenced statutes.
The Majors' FAC adds factual allegations and addresses many of the deficiencies the
Court previously noted. Wells Fargo moves to dismiss. It contends that, after commencing this lawsuit, the Majors submitted a loan modification application and their home has not been sold. Wells Fargo also alleges that the Majors previously modified their loan, making them ineligible for relief under California Civil Code § 2923.6.
A. Legal Standard
A 12(b)(6) motion to dismiss for failure to state a claim challenges the legal sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). The Court must accept all factual allegations as true and construe them in the light most favorable to the Majors. Cedars Sinai Med. Ctr. v. Nat'l League of Postmasters of U.S., 497 F.3d 972, 975 (9th Cir. 2007). To defeat Wells Fargo's motion to dismiss, the Majors' factual allegations need not be detailed, but they must be sufficient to "raise a right to relief above the speculative level...." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). While the Court must draw all reasonable inferences in the Majors' favor, it need not "necessarily assume the truth of ...