United States District Court, N.D. California, San Jose Division
RAJAMADAM C. VENKATRAMAN, et al., Plaintiffs,
THE BANK OF NEW YORK MELLON, et al., Defendants.
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
PLAINTIFFS' COMPLAINT WITH PREJUDICE IN PART AND WITHOUT
PREJUDICE IN PART RE: DKT. NO. 9
H. KOH UNITED STATES DISTRICT JUDGE.
Rajamadam Venkatraman and Radhika Venkatraman
(“Plaintiffs”) sue Defendants The Bank of New
York Mellon (“BONY Mellon”), Accredited Home
Lenders, Inc. (“Accredited”), Mortgage Electronic
Registration Systems, Inc. (“MERS”), Caliber Home
Loans (“Caliber”), and Barrett Daffin Frappier
Treder & Weiss, LLP (“Barrett”)
(collectively, “Defendants”) for claims arising
from a January 2015 foreclosure. Plaintiffs filed their
complaint pro se, but are now represented by counsel. Before
the Court is Defendants' motion to dismiss
Plaintiffs' complaint. Having considered the parties'
submissions, the relevant case law, and the record in this
case, the Court hereby GRANTS Defendants' motion to
dismiss Plaintiffs' complaint with prejudice in part and
without prejudice in part.
are individuals and the former owners of the property at 1031
Harlan Drive, San Jose, CA (“Property”). ECF No.
1-1, Ex. A (“Compl.”), ¶ 1. Plaintiffs
acquired title to the property on July 31, 1997. Id.
about December 1, 2006, Plaintiffs refinanced the Property
and received an $860, 000 loan from Defendant Accredited.
Id. ¶ 14. The loan was secured by a deed of
trust. Id. The deed of trust lists Defendant MERS as
beneficiary for Defendant Accredited and non-party Old
Republic Title Company as trustee. Id.; see
also Compl., Ex. 1 (2006 deed of trust). The deed of
trust states that if Plaintiffs are in default under the deed
of trust, the lender “may invoke the power of
sale” and that the trustee may record a notice of
default. Ex. 1 at 13.
March 24, 2010, pursuant to an Assignment of Deed of Trust
recorded with the Santa Clara County Recorder's Office,
Defendant MERS assigned its interest as beneficiary in the
deed of trust to Defendant BONY Mellon. ECF No. 10, Ex.
April 21, 2014, Defendant Caliber executed a form titled
“California Declaration of Compliance with (Cal. Civ.
Code § 2923.55(C)).” Compl., Ex. 2 at 4. Defendant
Caliber checked the box that stated the following: “The
mortgage servicer has tried with due diligence to contact the
borrower as required by California Civil Code §
2923.55(f) but has not made contact despite such due
diligence. The due diligence efforts were satisfied on
September 5, 2013.” Id.
21, 2014, pursuant to a Substitution of Trustee recorded with
the Santa Clara County Recorder's Office, the beneficiary
Defendant BONY Mellon substituted Defendant Barrett as
trustee in place of Old Republic Title Company. ECF No. 10,
Ex. C. On June 16, 2014, Defendant Barrett recorded a notice
of default with the Santa Clara County Recorder's Office
and began foreclosure proceedings against the Property.
Compl. ¶ 15; see id., Ex. 2 (notice of
November 10, 2014, Defendant Barrett recorded a notice of
trustee's sale with the Santa Clara County Recorder's
Office. Compl. ¶ 17; see Compl., Ex. 3 (notice
of trustee's sale). The notice stated that a
trustee's sale was scheduled for December 8, 2014.
Id. at 1. At the time, Plaintiffs' unpaid loan
balance was $936, 891.18. Id.
allege that on an unspecified occasion, Plaintiffs requested
a loan modification. Id. ¶ 19. Plaintiffs
allege that Defendants “agreed to accept partial
payment towards reinstatement of the defaulted loan as
consideration for postponing the tentative Trustee's Sale
in furtherance of a loan modification.” Id.
¶ 21. Plaintiffs allege that on or about January 15,
2015, Plaintiffs made a partial payment of $60, 000 to
Defendant Caliber. Id. ¶ 22.
February 2, 2015, Defendant Barrett recorded a trustee's
deed upon sale that indicated Skyway Investments, LLC had
purchased the Property. ECF No. 1-1, Ex. 4.
January 16, 2019, Plaintiffs, proceeding pro se, filed a
complaint against Defendants in California Superior Court for
the County of Santa Clara. Compl. at 1. Plaintiffs'
complaint alleges four causes of action: (1) violation of
California Civil Code § 2923.5 against all Defendants;
(2) breach of contract against all Defendants; (3) breach of
good faith and fair dealing against all Defendants; and (4)
accounting and open book against Defendant Caliber.
Id. at ¶¶ 25- 75. Plaintiffs'
complaint attaches several documents, including
Plaintiffs' deed of trust, the notice of default under
the deed of the trust, and the notice of trustee's sale
of the Property. See id., Exs. 1-4.
February 22, 2019, Defendant Barrett filed a declaration of
non-monetary status in state court. ECF No. 1-1, Ex. B.
Plaintiffs did not object to Defendant Barrett's
declaration of non-monetary status in state court. ECF No.
1-1, Ex. E. Pursuant to California law, Defendant Barrett is
thus a nominal party and is not considered for purposes of
removal jurisdiction. Hafiz v. Greenpoint Mortg. Funding,
Inc., 652 F.Supp.2d 1050, 1052 (N.D. Cal. 2009) (citing
Cal. Civ. Code § 29241(d)).
March 14, 2019, Defendants removed the case to federal
district court on the basis of diversity jurisdiction. ECF
No. 1. Defendants explained that Plaintiffs are residents of
California, as alleged in the Complaint. Id. at 3.
Defendant Accredited is a defunct entity that dissolved in
December 2012. ECF No. 1-1, Ex. C. All other Defendants are
incorporated and have their principal places of business in
states other than California. ECF No. 1 at 4.
case was originally assigned to United States Magistrate
Judge Nathanael Cousins. ECF No. 3. On March 21, 2019,
Defendants filed the instant motion to dismiss. ECF No. 9
(“Mot.”). On April 8, 2019, the case was
reassigned to the undersigned after Plaintiffs failed to
consent or decline magistrate judge jurisdiction by the April
3, 2019 deadline. ECF No. 12.
25, 2019, Plaintiffs filed an untimely opposition to
Defendants' motion to dismiss. ECF No. 17
(“Opp.”). On June 25, 2019, Jonathan Black was
substituted in as Plaintiffs' counsel. ECF No. 18. On
July 3, 2019, Defendants filed their reply. ECF No. 22
Motion to Dismiss Under Federal Rule of Civil ...