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Chan v. J.P. Morgan Chase, N.A.

United States District Court, S.D. California

May 5, 2017

SAU KING CHAN, Plaintiff,
v.
J.P. MORGAN CHASE, N.A., Defendant.

          ORDER

          WILLIAM Q. HAYES United States District Judge.

         The matter before the Court is the Motion to Dismiss the Second and Third Causes of Action of the Amended Complaint filed by Defendant J.P. Morgan Chase Bank, N.A. (ECF No. 21).

         I. Background

         On September 23, 2016, Plaintiff Sau King Chan initiated this action by filing a complaint (ECF No. 1) and motion for preliminary injunction (ECF No. 3). On September 29, 2016, Plaintiff filed the Amended Complaint, alleging four causes of action against Defendant J.P. Morgan Chase Bank, N.A.: (1) violations of the California Homeowner's Bill of Rights, pursuant to Cal. Civ. Code §§ 2923.6 and 2924.10(a)(4); (2) violations of the California Rosenthal Fair Debt Collection Practices Act (“RFDCPA”), pursuant to Cal. Civ. Code § 1788, et seq.; (3) negligence; and (4) violations of California's Unfair Competition Law (“UCL”), pursuant to Cal. Bus. & Prof. Code § 17200, et seq. (ECF No. 5).

         On October 17, 2016, Plaintiff filed a motion for preliminary injunction. (ECF No. 19). On November 1, 2016, Defendant filed the Motion to Dismiss the Second and Third Causes of Action of the Amended Complaint. (ECF No. 21). On November 18, 2016, Plaintiff filed a Notice of Withdrawal of Motion for Preliminary Injunction. (ECF No. 25). On November 18, 2016, the Court issued a minute order denying the motions for preliminary injunction (ECF Nos. 3, 19) as moot and stated that the Motion to Dismiss the Second and Third Causes of Action of the Amended Complaint (ECF No. 21) remains pending. (ECF No. 26).

         II. Allegations of the Amended Complaint (ECF No. 5)

         Plaintiff alleges that she “has been working with [Defendant] to obtain a modification of her mortgage loan for her home since 2013.” (ECF No. 5 at ¶ 11). Plaintiff alleges that she attempted to modify her mortgage loan with Defendant on four separate occasions. Id. at ¶¶ 13-36.

         Plaintiff alleges that on or about July 23, 2014, after she “submitted a full modification package” in 2013 “and complied with all of [Defendant's] supplemental documentation requests[, ]” Defendant sent her a letter indicating “that [Defendant] was unable to verify her income, employment, assets, identity and/or occupancy in the property based on the information provided.” Id. at ¶¶ 13-14. Plaintiff alleges that she submitted a second loan modification application to Defendant in August 2014. Id. at ¶ 16. “On or about March 4, 2015, after spending months complying with [Defendant's] multiple requests for information regarding her income, employment and occupancy, [Plaintiff] received a letter from [Defendant] indicating that she did not qualify for a loan modification due to [Defendant's] inability to verify her income, employment, assets, identity and/or occupancy in the property based on the information provided.” Id. at ¶ 17. Plaintiff alleges that she “immediately requested an escalation of the denial after receiving it” and that her request “was denied because [Defendant] could not verify income[.]” Id. at ¶ 18.

         Plaintiff alleges that after she submitted her third loan modification application on May 21, 2015, Defendant “indicated in a phone call [on October 19, 2015] that it needed an entire updated loan modification application, as the previous application had expired, it refused to consider the existing loan modification request further and insisted [Plaintiff] start the entire loan modification process over again.” Id. at ¶¶ 20-21.

         Plaintiff alleges that on or around August 13, 2015, Defendant “sent a letter to [Plaintiff] (signed by her single point of contact for the loan modification) purporting that [Plaintiff] had informed [Defendant] that she no longer wished to keep her home[, ]” and that “[d]espite [Plaintiff] repeatedly insisting she wanted to keep her home, [Defendant] had her in the short sale department.” Id. at ¶ 20 n.1. Plaintiff contends that she “repeatedly . . . tried to clarify the issue and have the short sale department not pursue foreclosure while she was actively pursuing a loan modification.” Id.

         Plaintiff alleges that she submitted a fourth loan modification application to Defendant on or around November 12, 2015 with “202 pages of supporting documentation[, ]” including a financial hardship letter, various years of tax return information, and lease agreements for her rental properties. Id. at ¶¶ 22-23. Plaintiff alleges that she “received confirmation the application was complete via telephone, on or around December 15, 2015.” Id. at ¶ 25. Plaintiff alleges that “[o]n or around December 30, 2015, despite [Plaintiff's] active modification review, [Defendant] reinitiated foreclosure proceedings by recording a Notice of Default against [Plaintiff's] property.” Id. at ¶ 26. Plaintiff alleges that between January and April 2016, she submitted additional documentation to [Defendant] in response to “requests for additional information in support of her loan modification application.” Id. at ¶¶ 29-35. Plaintiff alleges that on or around June 9, 2016, Defendant denied her fourth loan modification request, stating that it “could not verify your income, employment, assets, identity, and/or property occupancy based on the information you provided.” Id. at ¶¶ 36-39.

         Plaintiff alleges that on July 6 and July 8, 2016, she contacted Defendant by telephone and that no representative she spoke with “could provide the actual basis for the denial” of her fourth modification request. Id. at ¶¶ 41-42. Plaintiff alleges that Defendant sent her a letter dated August 5, 2016 in response to Plaintiff's appeal, but the “letter raised income and occupancy issues [Defendant] never mentioned during the loan modification review.” Id. at ¶¶ 44-48. Plaintiff alleges that Defendant “provide[d Plaintiff] with a notice of trustee sale set for October 28, 2016[, ]” and that Defendant “recorded the Notice of Trustee Sale, on or around September 15, 2016.” Id. at ¶ 50.

         III. Defendant's Request for Judicial Notice (ECF No. 21-2)

         Federal Rule of Evidence 201 provides that “[t]he court may judicially notice a fact that is not subject to reasonable dispute because it . . . is generally known within the trial court's territorial jurisdiction; or . . . can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed R. Evid. 201(b). “[U]nder Fed.R.Evid. 201, a court may take judicial notice of ‘matters of public record.'” Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (citation omitted); see also United States v. 14.02 Acres of Land More or Less in Fresno Cty., 547 F.3d 943, 955 (9th Cir. 2008) (“Judicial notice is appropriate for records”).

         Defendant requests that the Court take judicial notice of five documents: (1) the Deed of Trust recorded on June 19, 2006; (2) the Substitution of Trustee recorded on February 11, 2014; (3) the Corporate Assignment of Deed of Trust recorded on February 11, 2014; (4) the Notice of Default and Election to Sell Under Deed of Trust recorded on December 30, 2015; and (5) the Notice of Trustee's Sale recorded on September 15, 2016. (ECF No. 21-2 at 2). Defendant has demonstrated that each of the documents in its Request for Judicial Notice have been recorded in the office of the San Diego County Recorder. See, e.g., Fimbres v. Chapel Mortg. Corp., No. 09-CV-0886-IEG (POR), 2009 WL 4163332, at *3 (S.D. Cal. Nov. 20, 2009) (Gonzalez, C.J.) (taking judicial notice of Deed of Trust, Substitution of Trustee, Assignment of Deed of Trust, Notice of Default, and ...


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