United States District Court, N.D. California
ORDER GRANTING MOTION FOR JUDGMENT ON THE PLEADINGS
Re: Dkt. No. 51
William H. Orrick United States District Judge
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 Chase subsequently rescinded its notice of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.
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). 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).
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.
April 26, 2017, the NOD was rescinded, and the Notice of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,
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.
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).
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.
accordance with the foregoing, Chase's motion for
judgment on the pleadings is GRANTED, and ...