Steven Andre v. Bank of America, NA
5:14-cv-02888
N.D. Cal.Dec 5, 2014Background
- Andre purchased his Salinas home in 2004 with a mortgage secured by a deed of trust.
- He fell behind on payments and pursued a loan modification for several years.
- Bank of America, N.A. (BANA) denied modification requests for procedural reasons.
- BANA issued three notices of default between 2010–2012, each rescinded, no foreclosure pending.
- Select Portfolio Servicing, Inc. (SPS) began servicing the loan in late 2013.
- Andre's complaint states twelve causes of action against BANA and SPS, which the court dismisses with leave to amend.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Accounting claim viability | Andre seeks an accounting of the exact amount due. | Accounting is an equitable remedy only where a true balance is due and cannot be determined without an accounting. | Dismissed; no plausible claim for a due amount or accounting. |
| RICO viability | BANA engaged in a pattern of racketeering to obstruct modifications. | Plaintiff failed to plead predicate acts with particularity and a pattern. | Dismissed; no pattern or particularized predicate acts alleged. |
| National Mortgage Settlement standing | Andre can enforce the NMS as a beneficiary. | Only parties to the NMS or the Monitoring Committee can enforce; SPS not a party. | Dismissed; Andre lacks standing and SPS is not a party. |
| HBOR claims (dual tracking and single point of contact) | HBOR protects borrowers; defendants violated by dual tracking and lack of single point of contact. | HBOR does not guarantee modification or retroactivity; multiple contacts allowed. | HBOR claims fail; no retroactivity and no violation shown. |
| Negligence / implied covenant / UCL | Defendants’ mishandling of modification process caused injury and unfair practices; UCL piracies. | No duty owed beyond conventional lender duties; no cognizable injury; no breach. | No duty, no injury, and no predicates; negligence and related claims fail; UCL claims fail. |
Key Cases Cited
- Balistreri v. Pacifica Police Dept., 901 F.2d 696 (9th Cir. 1990) (standards for pleading and duties in analogous contexts under Rule 12(b)(6))
- Teselle v. McLoughlin, 173 Cal. App. 4th 156 (Cal. App. 4th Dist. 2009) (Cal. App. 4th on accounting as an equitable remedy)
- Nymark v. Heart Federal Sav. & Loan Ass'n, 231 Cal. App. 3d 1089 (Cal. App. 1st Dist. 1991) (duty of care analyses for lenders in loan transactions)
- Ottolini v. Bank of Am., 2011 WL 3652501 (N.D. Cal. 2011) (central facts on whether a duty exists in loan modification context)
- Guz v. Bechtel Nat’l, Inc., 24 Cal.4th 317 (Cal. 2000) (implied covenant scope and contract-based duties)
- Pasadena Live, LLC v. City of Pasadena, 114 Cal. App. 4th 1089 (Cal. App. 4th Dist. 2004) (standing and remedies principles in California law)
- Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048 (9th Cir. 2003) (Rule 12(b)(6) dismissal standards applied to pleadings)
- Civic West Corp. v. Zila Indus., Inc., 66 Cal. App. 3d 1 (Cal. App. 2d Dist. 1977) (equitable accounting and related remedies)