United States District Court, N.D. California, San Jose Division
ORDER ON MOTIONS TO DISMISS PLAINTIFFS' SECOND
AMENDED COMPLAINT RE: DKT. NOS. 67, 69
R. LLOYD UNITED STATES MAGISTRATE JUDGE
Haynish, Jr. and Jacqueline Haynish (“the
Haynishes”) sue Bank of America, N.A., (“Bank of
America”), Select Portfolio Servicing, Inc.
(“SPS”) and The Bank of New York Mellon f/k/a The
Bank of New York as Trustee for the Certificateholders of the
CWABS, Inc. Asset-Backed Certificates, Series 2005-3
(“Bank of New York”) (collectively
“Defendants”). The Haynishes bring two claims
related to the foreclosure of their former home.
the Court granted in part and denied in part motions to
dismiss the Haynishes' First Amended Complaint
(“FAC”). Haynish v. Bank of America,
N.A., 284 F.Supp.3d 1037 (N.D. Cal. Feb. 9, 2018), Dkt.
No. 62. The Haynishes then filed a Second Amended Complaint,
Dkt. No. 64, which SPS and Bank of New York now move to
dismiss for failure to state a claim upon which relief can be
granted. Dkt. No. 67. Bank of America joins in that motion.
Dkt. No. 69. Dkt. No. 69. For the reasons explained below,
the Court grants Defendants' motions and dismisses the
Haynishes' Second Amended Complaint.
parties consented to have this matter adjudicated by a
magistrate judge. Dkt. Nos. 9, 13, 18.
Court discussed the Haynishes' factual allegations in its
order on the prior motions to dismiss, and those allegations
have not changed much between the First and Second Amended
Complaints. Dkt. No. 62 at 2-3. The Court briefly recounts
the relevant allegations now.
Haynishes owned and lived in a house at 885 Heatherwood
Estates Drive in Hollister, California. In 2005 they
refinanced their home loan, executing a promissory note along
with a first lien deed of trust to secure the note. Dkt. No.
64 at 4. Bank of America serviced the loan from 2010 to July
2015, and SPS filled that role from July 2015 onward.
Id. at 4-7. Bank of New York was the trustee.
Id. at 3.
Haynishes “suffered a hardship” in 2011 and set
out to obtain a loan modification. Id. at 5. This
set off a four-year ordeal in which they “were forced
to submit and resubmit countless documents, ” all
“to no avail.” Id. For instance, in the
spring of 2015 a Bank of America employee confirmed receipt
of a complete modification application but soon afterwards
the Haynishes received a letter in the mail saying the
opposite: their application would not be reviewed for failure
to submit all of the required documents. Id. at 5-6.
Bank of America later said that the letter had been sent in
error. Id. at 6. The cycle continued.
January 2015, the Haynishes' monthly income decreased
from about $10, 000 to $8, 800, and they submitted
documentary evidence of the change as part of their
modification applications. Id. at 5-6. Nevertheless,
the loan servicers pushed ahead with the foreclosure process.
Bank of America and Bank of New York recorded a notice of
trustee's sale in July 2015. Id. at 6. Then in
September 2015, SPS and Bank of New York conducted a
trustee's sale. Id. at 7-8. The Haynishes moved
out, losing about $200, 000 of equity in the property.
Id. at 8.
asserted claims for negligence, wrongful foreclosure,
violations of California Civil Code § 2923.6
(“Homeowner Bill of Rights” or
“HBOR”), and violations of California Business
& Professions Code § 17200 (“Unfair
Competition Law” or “UCL”). Dkt. No. 24.
Defendants all moved to dismiss under Rule 12(b)(6) and the
Court granted the motions in part.
No. 62. Specifically, the Court:
• granted the motions as to the negligence and wrongful
foreclosure claims, without leave to amend, id. at
• denied the motions as to the HBOR claim against Bank
of America and Bank of New York concerning the July 2015
notice of trustee's sale, id. at 7-9;
• granted the motions as to the HBOR claim against SPS
and Bank of New York concerning the September 2015
trustee's sale, with ...