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Randall v. Ditech Financial, LLC

California Court of Appeals, Fourth District, First Division

May 24, 2018

D.C. RANDALL, JR., Plaintiff and Appellant,
v.
DITECH FINANCIAL, LLC, Defendant and Respondent.

          APPEAL 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.

          Legal Aid Society of San Diego, Inc., Alysson Snow and Kathleen Box for Plaintiff and Appellant.

          Locke Lord and Regina J. McClendon for Defendant and Respondent.

          McCONNELL, P. J.

         I

         INTRODUCTION

         D.C. 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.)[1] 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.

         We 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 this decision.

         II

         BACKGROUND

         A

         According 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.

         Following 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.

         Meanwhile, 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. ...


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