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Theodore Haynish v. Bank of America, N.A.

United States District Court, N.D. California, San Jose Division

May 31, 2018

THEODORE HAYNISH, et al., Plaintiffs,
v.
BANK OF AMERICA, N.A., et al., Defendants.

          ORDER ON MOTIONS TO DISMISS PLAINTIFFS' SECOND AMENDED COMPLAINT RE: DKT. NOS. 67, 69

          HOWARD R. LLOYD UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         Theodore 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.

         Previously 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.

         All parties consented to have this matter adjudicated by a magistrate judge. Dkt. Nos. 9, 13, 18.

         II. BACKGROUND

         A. Factual Allegations

         The 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.

         The 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.

         The 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.

         In 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.

         B. Procedural Background

         The FAC 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.

         Dkt. No. 62. Specifically, the Court:

• granted the motions as to the negligence and wrongful foreclosure claims, without leave to amend, id. at 10-14;
• 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 ...

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