United States District Court, S.D. California
WILLIAM Q. HAYES United States District Judge.
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).
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).
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).
Allegations of the Amended Complaint (ECF No. 5)
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.
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.
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.
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.”
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
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.
Defendant's Request for Judicial Notice (ECF No.
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”).
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 ...