United States District Court, E.D. California
JESSICA H. JORDAN, Plaintiff,
BANK OF AMERICA, N.A., et al., Defendants.
Bank of America, N.A. moves to dismiss each of plaintiff
Jessica Jordan's claims against it. For the following
reasons, the court GRANTS the motion.
12, 2007, plaintiff Jessica Jordan obtained a $608, 000 loan
for property located at 9711 Mindy Lane, Wilton, California
95693. Compl., ECF No. 1-1, ¶¶ 1, 8; Req. Jud. Not.
(“RJN”), ECF No. 7-1, Ex. 1. The loan was secured
by a deed of trust recorded on July 26, 2007, and that deed
of trust identifies Countrywide Home Loans, Inc. as the
lender, ReconTrust Company, N.A. as the trustee, and Mortgage
Electronic Registration Systems, Inc. (“MERS”) as
the beneficiary and “a separate corporation that is
acting solely as a nominee for [Countrywide] and
[Countrywide]'s successors and assigns.” Compl.
¶ 8; Ex. 1 at 8-9.
6, 2011, Bank of America recorded MERS' assignment of the
deed of trust and promissory note to BAC Home Loans Servicing
LP, which later merged into Bank of America. Compl. ¶ 9;
RJN Ex. 3. Jordan alleges there was no such assignment and
the recorded assignment's representations are
“false.” Compl. ¶ 10. Specifically, Jordan
contends that MERS lacked the necessary “interest in
the promissory note to be able to assign it” because
“MERS was named on the deed in a nominee capacity for
Countrywide” but “not mentioned in the promissory
note” and “[a]n assignment of a deed alone
without the corresponding assignment of the actual note is a
nullity.” Id. Further, Jordan contends that
“[e]ven if MERS was named on a promissory note
‘in a nominee capacity for Countrywide . . .' and
not merely on the deed of trust as it is here, MERS could not
assign the note in 2012, as it could not act as nominee for
Countrywide . . . years after Countrywide . . . ceased to
exist.” Id. ¶ 11.
5, 2012, Bank of America recorded another assignment,
assigning the deed of trust and note to U.S. Bank, National
Association, as trustee for the holders of the Deutsche Alt-A
Securities Mortgage Loan Trust, Series 2007-2 Mortgage Pass
Through Certificates. Id. ¶ 13; RJN Ex. 4.
This, too, was false, Jordan alleges, because “Bank of
America had no such interest in the promissory note to be
able to assign it to any other person or entity.”
Compl. ¶ 14. Further, Deutsche Alt-A Securities
Mortgage Loan Trust, Series 2007-2 Mortgage Pass Through
Certificates stopped accepting new loans as of August 31,
2007, and the purported assignment would have violated the
trust's pooling and servicing agreement's
“particular cut-off date for the mortgage loans
included in the trust, . . . subject[ing] it to penalties,
” while also violating “the enumerated specific
chain of possession the promissory note was to take among the
parties to the trust agreement . . . .” Id.
September 26, 2012, Bank of America recorded another
assignment, again purporting to assign the deed of trust and
note to U.S. Bank, National Association, as trustee for the
holders of the Deutsche Alt-A Securities Mortgage Loan Trust,
Series 2007-2 Mortgage Pass Through Certificates.
Id. ¶ 15; RJN Ex. 5. Jordan alleges this
purported assignment was also false. Compl. ¶ 16. Not
only did Bank of America lack any interest in the promissory
note and thus lack the ability to assign that note, the
assignment includes a notarization stating that a Bank of
America representative executed the assignment in Los Angeles
County while the document states it was executed in Ventura
County. Id. Also on September 26, 2012, ReconTrust
recorded a notice of default and election to sell under deed
of trust, indicating Jordan was $112, 628.72 in arrears. RJN
accepted a permanent modification offer, which she signed on
May 13, 2013, and which was recorded on August 23, 2013.
Id. Ex. 8. ReconTrust recorded a notice of
rescission of its notice of default and election to sell on
August 29, 2013. Id. Ex. 7.
26, 2015, Nationstar Mortgage LLC
(“Nationstar”) recorded a substitution of trustee,
under which “Deutsche Alt-A Securities Mortgage Loan
Trust, Series 2007-2 Mortgage Pass Through Certificates, U.S.
Bank, National Association, as Trustee Nationstar Mortgage
LLC, as Attorney-in-fact [sic], '” substituted
Barrett, Daffin, Frappier, Treder & Weiss LLP
(“Barrett, Daffin”) as trustee under the deed of
trust. Compl. ¶ 21; RJN Ex. 9. Nationstar recorded
another such substitution on December 6, 2016, as
“attorney-in-fact” for Deutsche Alt-A Securities
Mortgage Loan Trust, Series 2007-2 Mortgage Pass Through
Certificates, U.S. Bank, National Association, as Trustee,
again substituting Barrett, Daffin as trustee. Compl. ¶
22; RJN Ex. 10.
December 8, 2016, Nationstar recorded a notice of default and
election to sell, stating Jordan was $27, 703.83 in arrears.
Compl. ¶ 23; RJN Ex. 11. The accompanying declaration
stated that Nationstar satisfied the California Homeowner
Bill of Rights (“HBOR”) due diligence
requirements by attempting to contact Jordan. Compl. ¶
23; RJN Ex. 11; see Cal. Civ. Code § 2923.5.
Jordan disputes that Nationstar provided her with the
information required under HBOR. Compl. ¶ 24.
Barrett, Daffin recorded a notice of rescission of the notice
of default and election to sell on May 18, 2017. RJN Ex. 12.
April 2, 2018, Nationstar recorded another notice of default
and election to sell, stating Jordan was $31, 550.83 in
arrears. Compl. ¶ 25; RJN Ex. 13. This notice again
stated that Nationstar satisfied HBOR's due diligence
requirements, which Jordan again disputes. Compl.
¶¶ 25-26. On August 8, 2018, Jordan found a notice
of trustee's sale taped to her home's front door,
which stated a trustee's sale was scheduled for September
7, 2018. Id. ¶ 27; RJN Ex. 14 (notice of
trustee's sale recorded August 3, 2018). After filing
this suit in state court, on September 6, 2018, Jordan
obtained a temporary restraining order on the trustee's
sale. ECF No. 1-1 at 55-57 (granting Jordan's ex parte
request for a temporary restraining order “solely on
the ground that a showing ha[d] been made, unrebutted, that
[defendants] have not complied with [section] 2923.5”).
Before the state court heard Jordan's motion for a
preliminary injunction, Nationstar removed the action to this
court. Removal Not., ECF No. 1.
complaint includes the following six claims: (1) declaratory
relief, (2) cancellation of instruments, (3) slander of
title, (4) violation of California Civil Code section 2923.5
(formerly § 2923.55), (5) violation of the California
Rosenthal Fair Debt Collection Practices Act, California
Civil Code sections 1788, et seq., (6) negligence and
negligence per se, and (7) violation of California Business
& Professions Code section 17200 (“UCL”).
Jordan brings her fourth claim against Nationstar alone.
Jordan brings the balance of her claims against both
Nationstar and Bank of America. Bank of America now moves to
dismiss each of Jordan's six claims against it. Mot., ECF
No. 7. Jordan opposes, Opp'n, ECF No. 10, and Bank of
America has replied, Reply, ECF No. 13. The court submitted
the motion after oral argument and resolves it here.
Rule 12(b)(6) of the Federal Rules of Civil Procedure, a
party may move to dismiss a complaint for “failure to
state a claim upon which relief can be granted.” A
court may dismiss “based on the lack of 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 complaint need contain only “a short and plain
statement of the claim showing that the pleader is entitled
to relief, ” Fed.R.Civ.P. 8(a)(2), in order to survive
a motion to dismiss this short and plain statement
“must contain sufficient factual matter . . . to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). A complaint must include something
more than “an unadorned,
the-defendant-unlawfully-harmed-me accusation” or
“‘labels and conclusions' or ‘a
formulaic recitation of the elements of a cause of
action.'” Id. (quoting Twombly,
550 U.S. at 555). Determining whether a complaint will
survive a motion to dismiss for failure to state a claim is a
“context-specific task that requires the reviewing
court to draw on its judicial ...