Jurewitz v. Bank of America, N.A.
938 F. Supp. 2d 994
S.D. Cal.2013Background
- Plaintiff filed a complaint in San Diego Superior Court on Nov 8, 2012 alleging unlawful foreclosure and a Consent Judgment with a dual-tracking prohibition.
- Defendant Bank of America entered into a Consent Judgment with the US and 49 states in April 2012 governing mortgage servicing practices.
- Defendant removed the case to federal court on Dec 10, 2012, asserting federal question and diversity jurisdiction; Defendant moved to dismiss on Dec 17, 2012.
- Plaintiff asserts three causes of action: breach of contract (as an intended third-party beneficiary), negligence, and unlawful/unfair business acts under Cal. Bus. & Prof. Code § 17200.
- Court reviews a Rule 12(b)(6) dismissal, accepting well-pleaded facts as true but disregarding conclusory allegations; plaintiff sought leave to amend if dismissed.
- Court grants the motion to dismiss the entire complaint without prejudice, with 30 days to seek leave to amend and a proposed amended complaint.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to enforce the Consent Judgment | Plaintiff is an intended third-party beneficiary with standing | Plaintiff lacks standing; enforcement limited to DC court | Granted; plaintiff lacks standing to enforce the Consent Judgment. |
| Negligence based on contract | Defendant owed a duty to exercise ordinary care in reviewing modification | Duty arises only from contractual standards; no independent tort duty | Granted; negligence claim dismissed as restating contractual obligations. |
| Standing under § 17200 | Foreclosure scheduling and damages show injury; standing | No injury in fact or lost money/property shown | Granted; § 17200 claim dismissed for lack of standing. |
Key Cases Cited
- United States v. FMC Corp., 531 F.3d 813 (9th Cir. 2008) (Consent decrees treated as contracts; enforcement limits for non-parties)
- United States v. Asarco Inc., 430 F.3d 972 (9th Cir. 2005) (contract-like interpretation of consent decrees; standing issues)
- Hook v. Ariz., Dep’t of Corr., 972 F.2d 1012 (9th Cir. 1992) (incidental vs. intended third-party beneficiaries under government contracts)
- County of Santa Clara v. Astra USA, Inc., 588 F.3d 1237 (9th Cir. 2009) (clarifies third-party beneficiary standing under consent decrees)
- Astra USA, Inc. v. Santa Clara County, Cal,, 131 S. Ct. 1342 (2011) (supreme court treatment of third-party beneficiary standing post-9th Cir. decision)
- Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723 (1975) (standing framework for third-party beneficiaries)
- Aas v. Superior Court, 24 Cal.4th 627 (2000) (tort vs. contract remedies; social policy limits on tort recovery)
- Kwikset Corp. v. Superior Court, 51 Cal.4th 310 (2011) (standing under California unjust competition law; injury in fact)