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Taylor v. Citimortgage, Inc.

United States District Court, E.D. California

May 3, 2018

TERRENCE TAYLOR, Plaintiff,
v.
CITIMORTGAGE, INC.; NATIONAL DEFAULT SERVICING CORPORATION; and DOES 1 through 20, inclusive, Defendants.

          ORDER GRANTING DEFENDANTS' MOTION TO DISMISS (Doc. No. 19)

         This matter is before the court on defendants' motion to dismiss. (Doc. No. 19.) On May 1, 2018, that motion came before the court for hearing. Attorney Vartkes Artinian appeared on behalf of plaintiff Terrence Taylor. Attorney Matthew Nazareth appeared on behalf of defendant CitiMortgage, Inc. (“CitiMortgage”). Attorney Robert P. Zahradka appeared on behalf of defendant National Default Servicing Corporation (“NDSC”). All parties appeared telephonically. Having reviewed the parties' briefing and heard arguments, and for the reasons that follow, defendants' motion to dismiss will be granted.

         BACKGROUND

         In his first amended complaint, plaintiff alleges as follows. Plaintiff resides at 6301 Phyllis Street, Bakersfield, California, the property which is the subject of this suit (hereinafter the “property”). (Doc. No. 18 (“FAC”) at ¶ 1.) Plaintiff's mother Beverly Hicks (“Hicks”) purchased the property on or around September 9, 1991, and it was her primary residence until her death on August 7, 2016. (Id. at ¶ 11.) On or about January 28, 1992, Hicks obtained a loan secured by the property in the amount of $92, 000, and concurrently executed a deed of trust as security for the loan. (Id. at ¶ 12.) That deed was recorded in the Kern County Recorder's Office on January 31, 1991.[1] (Id.) The named trustee in the deed of trust was Stan-Shaw Corporation, while the named lender and beneficiary in the deed of trust was Directors Mortgage Loan Corporation. (Id.) Interest in the deed of trust was thereafter assigned to various parties; as of May 3, 2017, defendant CitiMortgage was the beneficiary of the deed of trust, while defendant NDSC was the trustee. (Id. at ¶¶ 13-21.)

         On or about June 6, 2017, defendant NDSC executed a Notice of Default (the “NOD”) and Election to Sell Under Deed of Trust, which was recorded in the Kern County Recorder's Office the following day. (Id. at ¶ 22.) On or about June 28, 2017, defendant NDSC executed a Notice of Rescission of the NOD, which was recorded in the Kern County Recorder's Office the following day. (Id. at ¶ 23.)

         Plaintiff alleges that he is the successor in interest to his mother Hicks and that, as such, he has the same rights and remedies as her under provisions of the California Homeowners Bill of Rights (“HBOR”). (Id. at ¶¶ 24-25.) On this basis, plaintiff alleges three causes of action. First, plaintiff alleges that he was not provided a single point of contact in seeking available foreclosure prevention alternatives, in violation of California Civil Code § 2923.7. (Id. at ¶¶ 38-42). Second, plaintiff alleges that defendants are in material violation of California Civil Codes §§ 2923.55, 2923.6, and 2923.7, as a result of which plaintiff may seek relief under § 2924.12. (Id. at ¶¶ 43- 47.) Third, plaintiff alleges a violation of California Business and Professions Code § 17200. (Id. at ¶¶ 48-53.)

         Plaintiff's FAC was filed on January 8, 2018. On January 29, 2018, defendant CitiMortgage moved to dismiss and that motion was joined by defendant NDSC. (Doc. Nos. 19, ///// 20.) On March 7, 2018, plaintiff filed his opposition. (Doc. No. 26.) Defendants' reply was filed on April 18, 2018. (Doc. No. 29).

         LEGAL STANDARD

         The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal sufficiency of the complaint. N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). “Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         In determining whether a complaint states a claim on which relief may be granted, the court accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). However, the court need not assume the truth of legal conclusions cast in the form of factual allegations. United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). While Rule 8(a) does not require detailed factual allegations, “it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 676 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”). Moreover, it is inappropriate to assume that the plaintiff “can prove facts which it has not alleged or that the defendants have violated the . . . laws in ways that have not been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).

         DISCUSSION

         Defendants have moved to dismiss all three causes of action in the FAC, arguing that as to each, plaintiff has failed to state a cognizable claim for relief.

         A. Violation of California Civil Code § 2923.7

         Plaintiff's first cause of action alleges a violation of California Civil Code § 2923.7, which provides that “[u]pon request from a borrower who requests a foreclosure prevention alternative, the mortgage servicer shall promptly establish a single point of contact and provide to the borrower one or more direct means of communication with the single point of contact.” Cal. Civ. Code § 2923.7(a). Plaintiff contends that he was never given a single point of contact, constituting a violation of that provision. (FAC at ¶ 41.)

         The statutory language of § 2923.7 is plain that in order to trigger any obligation on the part of the mortgage servicer to establish a single point of contact, the borrower must first make a request for a foreclosure prevention alternative. Williams v. Wells Fargo Bank, NA, No. EDCV 13-02075 JVS (DTBx), 2014 WL 1568857, at *8 (C.D. Cal. Jan. 27, 2014) (affirming that § 2923.7 by its terms “requires that the borrower make a specific request for a single point of contact”); see also Mobley v. Wilmington Tr., N.A., No. CV 15-4201 PA (AJWX), 2016 WL 7234099, at *3 (C.D. Cal. Sept. 9, 2016); Hart v. Select Portfolio Servicing, Inc., No. CV 15-7953-R, 2015 WL 8374926, at *2 (C.D. Cal. Dec. 9, ...


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