ORDER RE: DEFENDANT’S MOTIONS TO DISMISS AND TO STRIKE PORTIONS OF FIRST AMENDED COMPLAINT
I. INTRODUCTION
On July 31, 2012, Plaintiff Ted F. Harvey (“Plaintiff’), a homeowner, filed an amended complaint in this mortgage foreclosure case. ECF No. 12 (“Am. Compl.”). The thrust of his amended complaint is that Defendant Bank of America N.A. (“Defendant” or “BOA”) encouraged him to stop making his mortgage payments so that he could qualify for a loan modification under the Home Affordable Modification Program (“HAMP”), but that Defendant then, contrary to its oral promises, denied Plaintiffs HAMP application, charged him late fees and attorney fees, caused his previously excellent credit to become seriously damaged, and instituted foreclosure proceedings against him. No foreclosure sale has yet taken place. The amended complaint asserts nine claims: (1) violation of the Equal Credit Opportunity Act, 15 U.S.C. § 1691 et seq. (“ECOA”); (2) breach of the implied covenant of good faith and fair dealing; (3) contract reformation; (4) promissory estoppel; (5) wrongful foreclosure under Cal. Civ.Code § 2924 et seq.; (6) “false light” invasion of privacy; (7) intentional misrepresentation; (8) negligent misrepresentation; and (9) violation of California’s Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 et seq. (“UCL”).
Defendants have two motions pending before this Court: (1) a motion to dismiss the FAC, ECF No. 15 (“MTD”), and (2) a motion to strike portions of the FAC, ECF No. 14 (“MTS”). Both motions are fully briefed. ECF Nos. 17 (“Opp’n to MTD”), 18 (“Opp’n to MTS”), 19 (“Reply ISO MTS”), 20 (“Reply ISO MTD”).
II. BACKGROUND
In the procedural posture of this case, the Court takes its account of the facts from the material allegations of Plaintiffs amended complaint and construes them in the light most favorable to Plaintiff. On November 7, 2005, Plaintiff refinanced his existing mortgage loan with Countrywide Home Loans. Am. Compl. ¶ 9. To secure the refinancing, Plaintiff executed a promissory note and deed of trust (“DOT”) in favor of Countrywide. Id. Defendant later acquired Plaintiffs loan and is the current
In or around March or April 2009, Plaintiff was current in his loan payments and maintained excellent credit. Id. ¶ 10. He contacted Defendant regarding a loan modification. Id. During these initial conversations, Plaintiff allegedly spoke with an agent of Defendant who identified himself as Michael Z. Hollander (“Hollander”). Id. ¶ 11. Hollander allegedly told Plaintiff that he, Plaintiff, was the “gold standard” of borrowers and that he “would qualify for a HAMP modification[;] he had only to be late” in making payments on his loan. Id. Plaintiff alleges that Hollander told him that if he “went late,” he would receive priority treatment in the loan modification review process and “he would not face foreclosure or other negative consequences.” Id. Plaintiff alleges that, based on these representations, he began to miss his loan payments. Id. ¶¶ 11-12.
On August 31, 2009, Plaintiff allegedly submitted a loan modification to a representative of Defendant, Jill Ballentine. She allegedly informed Plaintiff that “the loan modification would take 45-90 days.” Id. ¶ 16. Over the next several months, Plaintiff allegedly inquired on multiple occasions into the status of the modification but received inconclusive responses. Id. ¶¶ 17-19. Plaintiff alleges that, on March 8, 2010, he spoke to a BOA representative, Grace Garo (“Garo”). Id. ¶¶ 20-21. Garo allegedly told Plaintiff that his HAMP modification request had been denied on January 13, 2010, but that the denial was erroneous and he actually qualified for the HAMP program. Id. ¶¶ 21-22. Garo allegedly promised to send a new package of forms. Id. ¶ 22.
When Plaintiff received the forms, however, they were not for a HAMP modification but a National Home Ownership Retention Program (NHRP) offer. Id. ¶ 23. Plaintiff allegedly rejected this offer because it had less favorable terms than a HAMP modification and he would not have “gone late” to obtain an NHRP offer. Id. ¶¶ 24-25. Plaintiff alleges that he contacted a BOA representative identifying herself only as “Shayna,” who told Plaintiff he had been denied a HAMP modification and instead “shunted” into the NHRP program because the subject property was not Plaintiffs primary residence. Id. ¶ 25. Plaintiff alleges that this was clearly erroneous, that he had lived on the subject property for over twenty-five years, and that Defendant should have known that due to their long correspondence. Id. ¶ 26. Shayna allegedly encouraged Plaintiff to submit a new HAMP modification application and promised to send one to him. Id.
Plaintiff alleges that, on June 3, 2010, Defendant sent Plaintiff the HAMP application. Id. ¶ 27. On January 6, 2011, Defendant allegedly denied Plaintiffs application for a HAMP modification. Id. ¶ 29. Following this denial, Plaintiff allegedly contacted Defendant to resume making his regular payments. Id. ¶ 30. However, Defendant allegedly refused to take Plaintiffs payments. Id. Plaintiff alleges that Defendant, throughout the pendency of Plaintiffs loan modification application and contrary to its earlier promises, charged Plaintiff late fees and penalties, and reported Plaintiff late to credit bureaus, damaging Plaintiffs credit rating. Id. Defendant allegedly told Plaintiff he was responsible for the penalties that accrued during the loan modification application period. Id.
On March 1, 2011, Defendant allegedly caused to be recorded a notice of default for the subject property. Id. ¶ 31; RJN Ex. B (notice of default (“NOD”)). On June 2, 2011, Plaintiff received a notice of trustee sale which had been recorded on May 26, 2011, and which set the foreclo
In early 2012, Plaintiff filed a complaint, as well as an amended complaint, in California Superior Court. RJN Exs. E & F (state court complaints). On June 14, 2012, Plaintiff asked the state court to enter a voluntary dismissal in his case, which the state court did on June 18. Id. Exs. D & G (state court docket, request for dismissal, and notice of dismissal). On June 22, Plaintiff filed his initial complaint before this Court. ECF No. I.
III. LEGAL STANDARD
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the legal sufficiency of a claim.” Navarro v. Block,
In addition to these general pleading standards, a heightened standard applies to claims sounding in fraud. See Fed.R.Civ.P. 9(b). “To satisfy Rule 9(b), a pleading must identify ‘the who, what, when, where, and how of the misconduct charged,’ as well as ‘what is false or misleading about [the purportedly fraudulent]
IV. DISCUSSION
Defendant moves to dismiss on three material grounds.
A. Tender
It is well-settled that a plaintiff seeking to set aside a foreclosure sale must tender, that is, must offer in good faith to pay the full amount of the secured debt. Arnolds Mgmt. Corp. v. Eischen,
Here, Plaintiffs amended complaint does not expressly pray to set aside the impending foreclosure sale. See Am. Compl. at 19. For that reason alone, tender is not required. Plaintiffs opposition, however, suggests that Plaintiff likely intended to pray for such relief and hence may do so when and if he files a second amended complaint. See Opp’n to MTD at 7. Plaintiff argues that it would be inequitable to require tender when he only defaulted at Defendant’s invitation. Id.; see also Am. Compl. ¶¶ 11-12 (alleging that Plaintiff had never missed a payment before doing so to become eligible for a HAMP modification). Defendant fails to address the argument other than to repeat the general rule requiring tender, without acknowledging the exceptions’ existence. On the state of the arguments presented thus far, the Court is tentatively inclined to rule that, for pleading purposes only, Plaintiffs allegation that Defendant induced his default would suffice to excuse Plaintiff from the tender rule, either for reasons of equity or as a challenge to the portion of the underlying indebtedness
In summary, the Court declines to dismiss the amended complaint on the ground that Plaintiff has failed to allege an offer to tender. Plaintiff is advised that any future amended pleading should clearly and specifically pray for all the relief requested, along with viable claims that would entitle Plaintiff to such relief. If that relief includes setting aside the planned foreclosure, Plaintiff must clearly and specifically allege either (1) a good-faith offer of tender or (2) a reason why Plaintiff is excused from the tender requirement.
B. Denial of HAMP Modification
Defendant moves to dismiss the amended complaint on the ground that it is, at root, a challenge to Defendant’s denial of Plaintiffs HAMP application. In other words, Defendant construes the amended complaint as bringing a single HAMPbased claim “disguised as other claims.” MTD at 6-8. Starting from this premise, Defendant argues that, because there is no private right of action under HAMP, the amended complaint must be dismissed.
Defendant is correct in saying there is no private right of action for HAMP violations. E.g., Lucia v. Wells Fargo Bank, N.A.,
Having addressed Defendant’s challenges to the amended complaint as a whole, the Court now addresses Defendant’s challenges to individual claims.
C. Claim 1: ECOA
Congress passed the ECOA to prevent discrimination by creditors against certain classes of credit applicants:
It shall be unlawful for any creditor to discriminate against any applicant, with respect to any aspect of a credit transaction — (1) on the basis of race, color, religion, national origin, sex or marital status, or age (provided the applicant has the capacity to contract); (2) because all or part of the applicant’s income derives from any public assistance program; or (3) because the applicant has in good faith exercised any right under this chapter.
15 U.S.C. § 1691(a). Plaintiff seeks relief under a provision of ECOA which requires creditors to notify applicants of the outcome of their credit applications within thirty days of the application. Id. § 1691(d)(1); see also Am. Compl. ¶¶ 35-36 (alleging delay of several months).
Though the Ninth Circuit has yet to articulate the elements of an ECOA claim, numerous district courts in this circuit have held that, to state a claim under ECOA, a plaintiff must allege that: “(1)
Accordingly, Plaintiffs claim is DISMISSED as insufficiently pled. The Court grants Plaintiff leave to amend this claim, but Plaintiff is advised that the amendment must assert a prima facie ECOA claim consistent with the guidance contained herein or else be dismissed with prejudice.
D. Claim 2: Implied Covenant of Good Faith and Fair Dealing
“The covenant of good faith and fair dealing, implied by law in every contract, exists merely to prevent one contracting party from unfairly frustrating the other party’s right to receive the benefits of the agreement actually made.” Guz v. Bechtel Nat. Inc.,
(1) the plaintiff and the defendant entered into a contract; (2) the plaintiff did all or substantially all of the things that the contract required him to do or that he was excused from having to do; (3) all conditions required for the defendant’s performance had occurred; (4) the defendant unfairly interfered with the plaintiffs right to receive the benefits of the contract; and (5) the defendant’s conduct harmed the plaintiff.
Woods v. Google, Inc.,
Plaintiffs amended complaint connects facts with the elements of this cause of action, but the allegations do not give rise to a viable claim. The problem is that Defendant’s alleged conduct is not related to the contract between the parties, that is, the DOT and related note. Plaintiff alleges not a violation of his standing contracts with Defendant, but of the entirely separate promises Defendant allegedly made to forego foreclosure and other penalties while the loan modification was pending. Cf. Plastino,
when it instructed him to miss loan payments in order to be considered for a loan modification, promised not to count Plaintiff late or foreclose on his property for missing payments in pursuit of a loan modification, and then unreasonably strung out the loan modification process until late fees and attorneys’ fees grew to an insurmountable amount.
Am. Compl. ¶ 44. “That might form the basis for some cause of action, but not for breach of the implied covenant in the deed of trust and mortgage.” Plastino,
E. Claim 3: Reformation of Contract
For purposes of federal pleading, reformation is a remedy, not a claim. Santos v. Countrywide Home Loans, CIV. 20902642WBS DAD,
Plaintiffs claim must be dismissed because it fails to set forth a cognizable legal theory. Plaintiff challenges section 12 on grounds of unconscionability (though the allegations perhaps more naturally suggest the contract doctrine of illegality), but reformation is proper “only in cases of fraud and mistake.” Skinner v. Northrop Grumman Ret. Plan B,
Defendant argues that the reformation “claim” must be dismissed with prejudice as time-barred because the DOT was signed in 2005 and the statute of limitations period has elapsed, regardless of whether Plaintiff seeks reformation on a contract theory (four year limitation) or a fraud theory (three year theory). MTD at 13; Reply ISO MTD at 7. The argument is unavailing. Under the discovery rule, a cause of action does not accrue “until the plaintiff discovers, or has reason to discover, the cause of action.” E-Fab, Inc. v. Accountants, Inc. Servs.,
Accordingly, the Court DISMISSES Plaintiffs reformation claim. In his amended complaint, Plaintiff may seek the remedy of reformation, but only if he asserts a separate claim upon which such relief can be granted.
F. Claim 4: Promissory Estoppel
“Promissory estoppel requires: (1) a promise that is clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) the reliance must be reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his or her reliance.” Boon Rawd Trading Int’l Co., Ltd. v. Paleewong Trading Co., Inc.,
Plaintiff alleges that “[i]n or around March or April 2009,” Plaintiff received promises from Defendant’s agent, Hollander, that if Plaintiff stopped making payments on his loan for 90 days, he would receive priority treatment in the loan modification review and would not face foreclosure or other negative consequences. Am. Compl. ¶¶ 11, 59. Plaintiff alleges that he relied on this promise by missing three of his monthly payments, despite never having missed a payment previously. Id. ¶¶ 12, 60. Plaintiff also alleges damage in the form of a diminished credit score, the institution of foreclosure proceedings against him, and the accumulation of late fees and foreclosure-related attorney fees. Id. ¶¶ 60-62. For pleading purposes, these allegations set forth a prima facie promissory estoppel claim arising from the alleged promise made to Plaintiff by Hollander.
Defendant argues that Plaintiff has not adequately alleged damages. MTD at 16. The cases cited by Defendant, however, are inapposite: They all concern instances where a lender gratuitously promised to postpone a foreclosure proceeding. As Plaintiff points out, Opp’n to MTD at 16, that is not the nature of the promise alleged here. Plaintiff alleges that Defendant promised not to foreclose at all if Plaintiff purposely missed payments. The difference matters. In the cases cited by Defendant, the borrower was already in default, and thus no legal damage resulted from timely rather than postponed foreclosure. In this case, however, Plaintiff alleges that Defendant induced his default, i.e., that he never would have been subject to foreclosure or the alleged penalties and fees if not for his reliance on Defendant’s alleged promises.
Defendant also argues that Plaintiffs claim must fail because it is barred by the statute of frauds. MTD at 17. This argument, too, is unavailing because it misapprehends the nature of the alleged promise. Plaintiff does not allege a promise to modify the terms of the DOT. He alleges promises independent of those con
The Court harbors some concern about the specificity of Plaintiffs pleading of Hollander’s alleged promise. Plaintiff does not provide, for instance, specific dates of the conversations with Hollander, or clarify how many conversations there were. See Am. Compl. ¶ 11. However, the Court concludes that the allegations are sufficiently detailed to give Defendant fair notice of the nature of Plaintiffs claim and sufficiently plausible such that it is not unfair to subject Defendant to discovery on this claim. See Starr,
G. Claim 5: Wrongful Foreclosure
Plaintiff avers that the foreclosure proceedings instituted by Defendant violate California’s non-judicial foreclosure scheme, set forth at California Civil Code § 2924 et seq. Am. Compl. ¶¶ 67-71. The Court DISMISSES this claim as insufficiently pled: Plaintiff fails to allege specifically which conduct by Defendant violated the law, or even to identify which sections of the voluminous statutory scheme Defendant allegedly violated. Plaintiff has leave to amend this claim but must allege specific conduct that violates specific sections of California’s non-judicial foreclosure law, along with the other requisites of a cognizable claim. Failure to do so may result in dismissal with prejudice.
H. Claim 6: “False Light” Invasion of Privacy
The thrust of this claim is that Defendant placed Plaintiff in a false light by reporting his default to the three major credit reporting agencies when in fact Plaintiff was not in default. Without reaching the merits of the claim, the Court dismisses it with prejudice because it is time-barred.
“A one-year statute of limitation applies to claims for false light invasion of privacy.” Lauter v. Anoufrieva,
I. Claims 7 & 8: Intentional & Negligent Misrepresentation
Plaintiffs intentional misrepresentation claim proceeds on an estoppel theory, that is, the theory that Defendant made a promise that it never intended to honor. See Am. Compl. ¶¶ 79-82. The elements of an estoppel claim are: “(1) a representation of material fact by defendant, (2) with knowledge, actual or virtual,
Both of Plaintiffs misrepresentation claims fail for insufficient pleading. Plaintiffs allegations of the purported promises made to him by Defendant’s agents are substantially the same as those underlying his promissory estoppel claim. Leaving aside the issue of whether the economic loss rule prohibits Plaintiff from seeking tort damages for what appears to be a contract claim, see, e.g., JMP,
Given that Plaintiff has yet to clearly and consistently allege the content of the allegedly fraudulent promise or specify the instances when it occurred or why it was false, see Cafasso,
J. Claim 9: UCL
The UCL prohibits unfair competition, including, inter alia, “any unlawful, unfair or fraudulent business act.” Cal. Bus. & Prof.Code § 17200. “Because [section 17200] is written in the disjunctive, it establishes three varieties of unfair competition- — -acts or practices which are unlawful, or unfair, or fraudulent.” Berryman v. Merit Prop. Mgmt., Inc.,
Plaintiff asserts that the conduct underlying his claims for breach of the implied covenant of good faith, intentional misrepresentation, and negligent misrepresentation “constitute[ ] unfair competition” under the UCL. Am. Compl. ¶¶ 92-95. However, as discussed supra in Sections IV.F and IV.I, all three of these claims fail as insufficiently pled. Consequently, Plaintiffs UCL claim fails as insufficiently pled.
Beyond Plaintiffs failures of factual pleading, Plaintiff fails to clearly and consistently identify the legal underpinnings of his UCL claim. First, the Court is concerned that Plaintiff is mixing the tethering approach appropriate to claims brought under the UCL’s “unfairness” prong with the “borrowing” approach applicable to claims brought under the “unlawfulness” prong. The two prongs are analytically distinct theories of recovery with different standards. See Boschma,
Plaintiffs UCL claim is DISMISSED. Plaintiff has leave to amend this claim but is advised that a failure to plead specific facts giving rise to a plausible claim to relief under an identifiable, cognizable legal theory may subject this claim to dismissal with prejudice.
K. Motion to Strike
Defendant’s Rule 12(f) motion to strike challenges only the portions of Plaintiffs amended complaint that mention punitive damages or attorney fees, and seeks to have them struck on the ground that such relief is precluded as a matter of law. However, “Rule 12(f) does not authorize district courts to strike claims for damages on the ground that such claims are precluded as a matter of law.” Whittlestone, Inc. v. Handi-Craft Co.,
V. CONCLUSION
For the foregoing reasons, the Court GRANTS IN PART AND DENIES IN PART Defendant Bank of America N.A.’s motion to dismiss Plaintiff Ted F. Harvey’s amended complaint. The Court orders as follows:
• Claim 1 (ECOA) is DISMISSED WITH LEAVE TO AMEND.
• Claim 2 (Implied Covenant of Good Faith and Fair Dealing) is DISMISSED WITH LEAVE TO AMEND.
• Claim 3 (Reformation of Contract) is DISMISSED. Plaintiff may amend his complaint to seek the remedy of reformation but must assert a separate claim on which such relief can be granted.
• Claim 4 (Promissory Estoppel) remains undisturbed.
• Claim 5 (Wrongful Foreclosure) is DISMISSED WITH LEAVE TO AMEND.
• Claim 6 (“False Light” Invasion of Privacy) is DISMISSED WITH PREJUDICE.
• Claim 7 (Intentional Misrepresentation) is DISMISSED WITH LEAVE TO AMEND.
• Claim 8 (Negligent Misrepresentation) is DISMISSED WITH LEAVE TO AMEND.
• Claim 9(UCL) is DISMISSED WITH LEAVE TO AMEND.
The Court DENIES Defendant’s motion to strike the portions of Plaintiffs amended complaint pertaining to attorney fees and punitive damages.
Plaintiff has leave to file a second amended complaint within thirty (30) days of the signature date of this order.
IT IS SO ORDERED.
Notes
. Defendant submitted a request for judicial notice in support of its motion to dismiss. ECF No. 16 ("RJN”). Plaintiff does not oppose the request and the documents con-tamed in the RJN are public records. The Court GRANTS Defendant's request and takes judicial notice of the documents.
. Plaintiff's complaint could be clearer about the basis of this Court’s jurisdiction. Nevertheless, this Court is satisfied that it has diversity jurisdiction under 28 U.S.C. § 1332. The object of this litigation is either Plaintiff's San Ramon residence, which likely is worth more than the jurisdictional amount of $75,000, or the amount owing under the NOD, which is $75,526.38. NOD at 1. Either way, the amended complaint places the required amount in controversy. As for citizenship, Plaintiff alleges that he is a longtime California resident, and, under Wachovia Bank v. Schmidt,
. Defendant also offers two grounds which do not bear in-depth discussion. Defendant first argues that Plaintiff’s entire amended complaint must be dismissed as insufficiently pled. MTD at 3-4. The argument lacks merit since the pleading is not, as Defendant asserts, entirely devoid of facts. See supra Section II. Thus, factual defects should be challenged in the context of individual legal claims rather than as a global challenge to the entire pleading. Defendant next argues that the amended complaint, which Defendant construes as challenging Defendant’s right to foreclose, must be dismissed because judicially noticeable documents show that Defendant has such a right. MTD at 5-6. The argument fails because it is circular.
. Defendant argues that, under California law, the discovery rule applies only to fraud claims. Reply ISO MTD at 7. Defendant is wrong. The discovery rule applies to fraud actions, but not only to fraud actions. See, e.g., Norgart v. Upjohn Co.,
. Plaintiff's promissory estoppel claim touches only on the promises allegedly made by Hollander. Plaintiff therefore does not assert a promissory estoppel claim on the basis of other alleged promises, for example, those allegedly made by Garo.