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Alvarez v. MTC Financial Inc.

United States District Court, N.D. California

July 20, 2017

ANA ALVAREZ, Plaintiff,
v.
MTC FINANCIAL INC., et al., Defendants.

          ORDER GRANTING MOTION FOR JUDGMENT ON THE PLEADINGS Re: Dkt. No. 51

          William H. Orrick United States District Judge

         INTRODUCTION

         Plaintiff Ana Alvarez brought this action against defendants MTC Financial, Inc. dba Trustee Corps (“MTC”) and JPMorgan Chase Bank (“Chase”) alleging claims arising from defendants' failure to contact her prior to pursuing foreclosure of her residence. I previously dismissed eight of ten of her causes of action-first with leave to amend, Dkt. No. 24, and then without leave to amend, Dkt. No. 50. That left her with two claims remaining-one under the Homeowners Bill of Rights, and another under Civil Code section 2923.5. Chase subsequently rescinded its notice of default. With no notice of default, there can be no pending foreclosure, and therefore, no remedy for her claims. Chase's motion for judgment on the pleadings is GRANTED.

         BACKGROUND[1]

         On June 26, 2007, Alvarez obtained a $600, 000 loan from Chase secured by a Deed of Trust (“DOT”) for the real property located at 270 Beachview Avenue, #14, Pacifica, California 94044. See Def.'s Request for Judicial Notice (RJN), Ex. 1 (Dkt. No. 51-2).[2] On June 26, 2015, MTC was substituted as the trustee under the DOT. FAC ¶ 22; RJN, Ex. 2 (Dkt. No. 51-3). On July 10, 2015, MTC issued a Notice of Default and Election to Sell (“NOD”), and caused the NOD to be recorded on July 13, 2015. See RJN, Ex. 3 (Dkt. No. 51-4). MTC issued a Notice of Trustee's Sale on July 19, 2016. See RJN, Ex. 4 (Dkt. No. 51-5).

         Alvarez filed this action on September 26, 2016, and after two rounds of briefing on Chase's motions to dismiss, only Alvarez's claims under the HBOR and California Civil Code section 2923.5 remained. See Dkt. Nos. 24, 50.

         On April 26, 2017, the NOD was rescinded, and the Notice of Rescission was recorded on May 2, 2017. See RJN, Ex. 5 (Dkt. No. 51-6). On June 8, 2017, Chase moved for judgment on the pleadings. Mot. for J. on Pleadings (“Mot.”)(Dkt. No. 51). Alvarez filed an opposition that largely copied her earlier, unsuccessful opposition to the Motion to Dismiss, but did not appear at the hearing on July 19, 2017. See Dkt. Nos. 53, 44, 50.

         LEGAL STANDARD

         A motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) utilizes the same standard as a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Cafasso, United States ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1055 n.4 (9th Cir. 2011). Under both provisions, the court accepts the facts alleged in the complaint as true and must determine whether the facts entitle the plaintiff to a legal remedy. Chavez v. United States, 683 F.3d 1102, 1108 (9th Cir. 2012) (citation omitted). Either motion may be granted only when it is clear that “no relief could be granted under any set of facts that could be proven consistent with the allegations.” McGlinchy v. Shull Chem. Co., 845 F.2d 802, 810 (9th Cir. 1988) (citations omitted). Dismissal may be based on either the lack of a cognizable legal theory or absence of sufficient facts alleged under a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984).

         A plaintiff's complaint must allege facts to state a claim for relief that is plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). A claim has “facial plausibility” when the party seeking relief “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Although the court must accept as true the well-pleaded facts in a complaint, conclusory allegations of law and unwarranted inferences will not defeat an otherwise proper Rule 12(b)(6) motion. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). “[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. Factual allegations must be enough to raise a right to relief above the speculative level.” See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations and footnote omitted).

         DISCUSSION

         Alvarez's first claim alleges violations of Civil Code sections 2923.55 and 2924.17, FAC ¶¶ 44-53, and her second claim alleges a violation of civil code section 2923.5, id. ¶¶ 54-59. These provisions require a mortgage servicer to attempt to contact a lender to discuss alternatives to foreclosure, prior to pursuing foreclosure proceedings. “The sole remedy for noncompliance with the procedural requirements of section 2923.5 is postponement of a foreclosure sale until there has been compliance with the statute.” Davis v. Nationstar Mortg., LLC, 2016 WL 7178466, at *7 (E.D. Cal. Dec. 9, 2016). Since Chase rescinded the NOD, plaintiffs' claims must fail.

         CONCLUSION

         In accordance with the foregoing, Chase's motion for judgment on the pleadings is GRANTED, and ...


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