California Court of Appeals, Fourth District, First Division
D.C. RANDALL, JR., Plaintiff and Appellant,
DITECH FINANCIAL, LLC, Defendant and Respondent.
from a judgment of the Superior Court of San Diego County,
No. 37-2016-00014205- CU-OR-CTL Joel M. Pressman, Judge.
Reversed and remanded with directions.
Aid Society of San Diego, Inc., Alysson Snow and Kathleen Box
for Plaintiff and Appellant.
Lord and Regina J. McClendon for Defendant and Respondent.
McCONNELL, P. J.
Randall, Jr., appeals from a judgment dismissing his
operative second amended complaint (complaint) against Ditech
Financial, LLC (Ditech) after the trial court sustained
Ditech's demurrer to the complaint without leave to
amend. Randall contends the court erred in its ruling as to
his causes of action for violation of the federal Fair Debt
Collection Practices Act (FDCPA; 15 U.S.C. § 1692 et
seq.) and for violation of the state unfair
competition law (UCL; Bus. & Prof. Code, § 17200 et
seq.) because these causes of action stated or can be amended
to state viable claims.
conclude the complaint stated a claim under section 1692f(1)
of the FDCPA and can be amended to state a claim under
section 1692f(6). Consequently, the complaint can also be
amended to state a claim under the UCL. We therefore reverse
the judgment and remand the matter to the court with
directions to conduct further proceedings consistent with
to the allegations in the complaint, which we must accept as
true for purposes of this appeal (Yvanova v. New Century
Mortgage Corp. (2016) 62 Cal.4th 919, 924), Ditech is a
loan servicer and attempts to collect debts on behalf of
itself and others in the regular and ordinary course of its
business. Ditech services a loan secured by a deed of trust
on Randall's home. Ditech began servicing the loan after
Randall had defaulted on the loan.
Randall's default, the trustee recorded a notice of
default with intent to sell. Approximately two years later,
the trustee recorded a notice of trustee's sale,
scheduling Randall's home for public auction 21 days
later. Randall subsequently received notice the foreclosure
sale was postponed for 37 days.
Ditech advised Randall of the necessary payments to reinstate
his mortgage, which included improper fees and charges.
Thirty-nine days prior to the foreclosure sale, Randall paid
Ditech $20, 664.36 in three installments. ...