Opinion
For Jason Alexander Geake, Plaintiff: Jamie Edwards Quadra, LEAD ATTORNEY, Edwards Quadra, PC, Roseville, CA.
For JP Morgan Chase Bank, N.A., Defendant: David D Piper, LEAD ATTORNEY, Keesal Young and Logan APC, Long Beach, CA; Samantha Carlson, Keesal Young and Logan, Long Beach, CA.
For Ocwen Loan Servicing LLC, Defendant: Nicholas Gregory Hood, T Robert Finlay, LEAD ATTORNEYS, Kristina M Pelletier, Wright Finlay and Zak LLP, Newport Beach, CA.
For U.S. Bank National Association, as Trustee of the Structured Asset Securities Corporation, Mortgage Pass-Through Certificates, Series 2006-BC3, Defendant: Kristina M Pelletier, Wright Finlay and Zak LLP, Newport Beach, CA.
Honorable PERCY ANDERSON, UNITED STATES DISTRICT JUDGE.
CIVIL MINUTES - GENERAL
Proceedings: IN CHAMBERS - COURT ORDER
Before the Court are two motions to dismiss. The first is a Motion to Dismiss First Amended Complaint filed by defendant J.P. Morgan Chase Bank, N.A. (" Chase"). (Docket No. 23.) Plaintiff Jason Alexander Geake (" Plaintiff") has filed an Opposition (Docket No. 28), to which Chase has filed a Reply (Docket No. 32). The second is a Motion to Dismiss First Amended Complaint filed by defendants Ocwen Loan Servicing, LLC (" Ocwen") and U.S. Bank National Association, as Trustee of the Structured Asset Securities Corporation, Mortgage Pass-Through Certificates, Series 2006-BC3 (" U.S. Bank"). (Docket No. 24.) Plaintiff has filed an Opposition (Docket No. 31), to which Ocwen and U.S. Bank have filed a Reply (Docket No. 33).
Pursuant to Rule 78 of the Federal Rules of Civil Procedure and Local Rule 7-15, the Court finds these matters appropriate for decision without oral argument. The hearings calendared for December 29, 2014 and January 5, 2015 are vacated, and the matters taken off calendar.
I. Background
Plaintiff owns a home in Los Angeles, California. To finance the purchase of his home, Plaintiff obtained a purchase money mortgage loan from Fieldstone Mortgage Company (" Fieldstone") in May 2006. Plaintiff alleges that, over the next several years, various banks engaged in misconduct with respect to (1) servicing his loan and (2) transferring rights pursuant to the deed of trust.
A. Loan Servicing History
Plaintiff was notified in August 2006 that Fieldstone had assigned servicing rights to Chase. Sometime after that, Plaintiff had difficulty making his loan payments. In February 2009, Chase sent Plaintiff a letter concerning a loan modification program. Plaintiff submitted an application packet in June 2009 and allegedly decided to forego other options available to him, such as a deed in lieu of foreclosure or short sale. Plaintiff entered into a forbearance agreement with Chase in August 2009 providing that Chase would not foreclose during the forbearance period (lasting through October 2009) so long as Plaintiff made timely payments.
Plaintiff continued to correspond with Chase and submitted another modification application at Chase's request in May 2010. The application was denied. However, Plaintiff continued to submit payments until February 2011, when a payment was declined. The next month, Plaintiff received a letter indicating that his account with Chase had been closed. In November 2011, Plaintiff received another letter from Chase informing him that he had been " approved to enter a trial period plan under the Home Affordable Modification Program." (FAC, Ex. H.) The letter detailed " [w]hat you need to do":
To accept this offer, you must make your first monthly " trial period payment" in place of your normal monthly mortgage payment. Thereafter, send in your monthly trial period payments--instead of your normal monthly mortgage payment . . . . After all trial period payments are timely made and you continue to meet all program eligibility requirements, your mortgage would then be permanently modified. You will be required to execute a permanent mortgage modification agreement that we will send you before your modification becomes effective.
(Id.) The trial period payments were due by January 1, 2012, February 1, 2012, and March 1, 2012. Plaintiff alleges that he made timely trial payments and continued to make payments after the prescribed trial period. A permanent mortgage modification agreement was never executed.
In March 2012, Plaintiff received notice that servicing of his loan was being transferred from Chase to Ocwen. In June 2012, Ocwen sent Plaintiff a loan modification agreement that required Plaintiff to act by April 2012 to accept. Plaintiff allegedly wrote to Ocwen explaining the terms of Ocwen's offer were impossible to satisfy given that the deadline to accept pre-dated the offer. In August 2012, Ocwen allegedly sent a response that did not address the issues with the offer letter. Later in August, Ocwen denied Plaintiff's modification because he had failed to accept the offer. A notice of default was recorded in March 2014. (See Chase's Request for Judicial Notice, Ex. 6.)
At one point in the FAC, Plaintiff appears to erroneously refer to this document as " the modification offer sent on July 11, 2012." (FAC ¶ 27.) If a letter was in fact sent in July, this is not made clear in the FAC.
The Court grants the Requests for Judicial Notice filed by Chase (Docket No. 23) and Ocwen and U.S. Bank (Docket No. 25).
B. Deed of Trust History
The deed of trust was recorded with the Los Angeles County Recorder's Office on June 2, 2006, listing Fieldstone as lender, Rob V. Budhwa as trustee, and the Mortgage Electronic Registration System, Inc. (" MERS") as beneficiary. (FAC, Ex. 1.) First American Loanstar Trustee Services (" First American") was substituted as trustee on July 29, 2009. (Chase's RJN, Ex. 3.) MERS assigned its rights to U.S. Bank on August 12, 2009. (RJN, Ex. 2.) Plaintiff claims that he did not receive notice of this assignment. Western Progressive, LLC (" Western Progressive") was substituted as trustee on February 25, 2014. (RJN, Ex. 5.)
C. Procedural History
Plaintiff filed his original Complaint in Los Angeles County Superior Court on May 23, 2014. The case was removed to this Court on August 29, 2014. Chase filed a Motion to Dismiss on October 6, 2014 (Docket No. 13), and Ocwen and U.S. Bank filed a Motion to Dismiss on the same date (Docket No. 15). Plaintiff filed a First Amended Complaint (" FAC") on October 27, 2014. (Docket No. 20.) Accordingly, the Court denied both Motions to Dismiss as moot on November 5, 2014. (Docket No. 22.) The instant Motions followed.
II. Legal Standard
Generally, plaintiffs in federal court are required to give only " a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a). While the Federal Rules allow a court to dismiss a cause of action for " failure to state a claim upon which relief can be granted, " they also require all pleadings to be " construed so as to do justice." Fed.R.Civ.P. 12(b)(6), 8(e). The purpose of Rule 8(a)(2) is to " 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957)). The Ninth Circuit is particularly hostile to motions to dismiss under Rule 12(b)(6). See, e.g., Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 248-49 (9th Cir. 1997) (" The Rule 8 standard contains a powerful presumption against rejecting pleadings for failure to state a claim.") (internal quotation omitted).
However, in Twombly, the Supreme Court rejected the notion that " a wholly conclusory statement of a claim would survive a motion to dismiss whenever the pleadings left open the possibility that a plaintiff might later establish some set of undisclosed facts to support recovery." Twombly, 550 U.S. at 561, 127 S.Ct. at 1968 (internal quotation omitted). Instead, the Court adopted a " plausibility standard, " in which the complaint must " raise a reasonable expectation that discovery will reveal evidence of [the alleged infraction]." Id. at 556, 127 S.Ct. at 1965. For a complaint to meet this standard, the " [f]actual allegations must be enough to raise a right to relief above the speculative level." Id. at 555, 127 S.Ct. at 1965 (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-36 (3d ed. 2004) (" [T]he pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action") (alteration in original)); Daniel v. County of Santa Barbara, 288 F.3d 375, 380 (9th Cir. 2002) (" 'All allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party.'") (quoting Burgert v. Lokelani Bernice Pauahi Bishop Trust, 200 F.3d 661, 663 (9th Cir. 2000)). " [A] plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555, 127 S.Ct. at 1964-65 (internal quotations omitted). In construing the Twombly standard, the Supreme Court has advised that " a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Ashcroft v. Iqbal, 556 U.S. 662, 678 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009).
III. Chase's Motion to Dismiss
Plaintiff's First Amended Complaint includes claims against Chase for (1) negligence and (2) breach of contract.
A. Negligence
To prevail on his negligence claim, Plaintiff must show (1) that Chase owed him a legal duty, (2) that Chase breached that duty, and (3) that the breach was the proximate cause of Plaintiff's injuries. See Merrill v. Navegar, Inc., 26 Cal.4th 465, 477, 110 Cal.Rptr.2d 370, 28 P.3d 116 (2001). Chase seeks dismissal on the grounds that (1) Plaintiff has failed to allege that Chase had any involvement in Ocwen's allegedly negligent conduct, (2) that the relationship between Plaintiff and Chase is governed by contract law, (3) that Chase owed no legal duty to Plaintiff, and (4) that Plaintiff has not alleged any injury caused by Chase.
Plaintiff concedes that, " [w]ithout a doubt, the cause of action for Negligence should have been more artfully plead [sic]." (Opposition at 7.) Plaintiff " presents a brief summary of recent case law on the duty element of Negligence in residential mortgage servicing" (Opposition at 7), but fails to explain Chase's role in Ocwen's allegedly negligent conduct. Instead, Plaintiff requests leave to amend his Complaint in two respects. First, Plaintiff seeks leave to amend " to include two separate causes of action for negligence related to the specific actions of [Chase and Ocwen]" because " Plaintiff has plead [sic] significant facts related to Chase's handling of his loan modification that would lead to a tort claim against Chase." (Opposition at 10.) Second, Plaintiff seeks to add a claim for negligent misrepresentation based on Chase's alleged misrepresentations about " the length and impact of the [modification] application period on Plaintiff's loan balance." (Id.)
Rule 15 of the Federal Rules of Civil Procedure provides for amendment to a party's pleading by leave of the court at any time, and such leave " shall be freely given when justice so requires." Fed.R.Civ.P. 15(a); DCD Programs, Ltd., v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987) (noting that leave to amend should be granted with " extreme liberality" to " facilitate decision on the merits rather than on pleadings or technicalities"). The Court considers five factors in assessing a motion for leave to amend: " bad faith, undue delay, prejudice to the opposing party, futility of amendment, and whether the plaintiff has previously amended the complaint." Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004). Here, Plaintiff offers no explanation for his delay in requesting leave to amend, and granting leave at this juncture. However, there is no indication of bad faith on Plaintiff's part. Moreover, the Court cannot say at this time that amendment would be futile. Plaintiff's negligence claim against Chase may--with substantial revision--be viable. Chase has not shown that the entire scope of its relationship with Plaintiff was governed by contract, and, under California law, lenders may owe borrowers a duty of care under certain circumstances.
See Part IV.A, below.
Plaintiff's second request--for leave to amend the FAC to add a claim for negligent misrepresentation--is not properly before this Court. The FAC did not include this claim. Plaintiff will need to file a separate motion for leave to amend his Complaint to add this claim.
B. Breach of Contract
To prevail on his breach of contract claim, Plaintiff must show (1) that an agreement existed, (2) that Plaintiff performed or that his performance was excused, (3) breach by Chase, and (4) resulting damages. See First Comm. Mortgage Co. v. Reece, 89 Cal.App.4th 731, 745, 108 Cal.Rptr.2d 23 (Cal.App. 2001). Chase argues that Plaintiff's FAC fails to identify any breach by Chase and that, in any event, Plaintiff has failed to allege resulting damages because " any purported damages he has incurred are the result of . . . his admitted inability to make payments on the Subject Loan." (Opposition at 10.)
The Court agrees that Plaintiff has failed to allege a breach by Chase. In his Opposition, Plaintiff argues that " [b]ecause some of the information related to the finalization of the approved loan modification and transfer of the same, Plaintiff has included Chase as a party to this cause of action and has also included agency allegations sufficient to tie Chase to this cause of action." (Id.) This argument fails. Notwithstanding his boilerplate allegations that Chase and Ocwen served as agents for one another (FAC ¶ ¶ 39-41), Plaintiff's FAC makes clear that Chase had no interest in Plaintiff's loan at the time of Ocwen's alleged breach(es). Exhibits B (transfer of servicing rights to Chase) and I (transfer of servicing rights from Chase to Ocwen, dated March 12, 2012) illustrate that Chase had no interest in Plaintiff's loan after March 12, 2012. Plaintiff's vague agency allegation suggesting a link between Chase and Ocwen is undermined by his own exhibits. However, because the servicing rights were transferred after Plaintiff allegedly performed by making his three trial period payments (see FAC, ex. I), the Court grants Plaintiff leave to amend this claim.
IV. Ocwen and U.S. Bank's Motion to Dismiss
Plaintiff's FAC includes claims for negligence and breach of contract against all defendants, a claim against Ocwen for violation of the Real Estate Procedures Act (" RESPA"), and a claim against U.S. Bank for violation of the Truth in Lending Act (" TILA"). Ocwen and U.S. Bank move to dismiss each of these claims.
It does not appear that U.S. Bank had any role in the alleged negligence and breach of contract. However, joint counsel for Ocwen and U.S. Bank has failed to argue that these claims should be dismissed.
A. Negligence
Ocwen and U.S. Bank argue that Plaintiff's negligence claim fails because (1) they did not owe Plaintiff a duty of care, (2) Plaintiff has not alleged any breach, and (3) Plaintiff has not alleged that he suffered any damages.
1. Duty of Care
Under California law, " a financial institution owes no duty of care to a borrower when the institution's involvement in the loan transaction does not exceed the scope of its conventional role as a mere lender of money." Nymark v. Heart Fed. Savings & Loan Ass'n, 231 Cal.App.3d 1089, 1096, 283 Cal.Rptr. 53, 56 (Cal.App. 1991). The dispute in this case turns on whether a bank " exceed[s] the scope of its conventional role as a mere lender of money" when offering and evaluating a loan modification.
Ocwen and U.S. Bank cite a handful of cases in support of the proposition that " [l]oan modification is intimately tied to a Defendant's lending role and, therefore, does not give rise to a legal duty between the lender and borrower." In their Reply, Ocwen and U.S. Bank even identify relevant authority from this Court. See Badame v. JP Morgan Chase Bank, N.A., No. CV 13-5425 PA (FFMx), 2014 WL 585451, at *7 (C.D. Cal. Feb. 13, 2014) (" The Court concludes that Chase had no duty of care when considering Plaintiffs' request for a loan modification because 'a loan modification is the renegotiation of loan terms, which falls squarely within the scope of a lending institution's conventional role as a lender of money.'") (quoting Lueras v. BAC Home Loan Servicing, LP, 221 Cal.App.4th 49, 67, 163 Cal.Rptr.3d 804, 820 (Cal.App. 2013)). However, many of Ocwen and U.S. Bank's authorities--both state and federal--pre-date a purported shift in California law.
Ocwen and U.S. Bank cite Ragland v. U.S. Bank Nat'l Ass'n, 209 Cal.App.4th 182, 147 Cal.Rptr.3d 41 (Cal.App. 2012) in their Motion. In that case, the court found that a loan servicer did not owe a borrower a duty of care when an employee counseled the borrower to miss a payment in order to qualify for a modification program. Plaintiff's theory was that the lender " exceeded the scope of its role as a lender of money because [its employees] gave [borrower] what amounted to investment advice by telling her not to make her April 2008 loan payment." Id. at 207, 62. The court distinguished case law in which lenders had given more extensive advice and noted that the advice given in this case " was directly related to the issue of loan modification and therefore fell within the scope of [lender's] conventional role as a lender of money." Id.
Ocwen and U.S. Bank also cite Lueras, 221 Cal.App.4th 49, 163 Cal.Rptr.3d 804 (Cal.App. 2013) in their Reply. In that case, the plaintiff alleged that lenders owed him a duty of care to:
(1) handle his loan " in such a way to prevent foreclosure and forfeiture of his property"; (2) " determine modification approvals, explore and offer foreclosure alternatives with Mr. Lueras prior to default"; (3) " exercise reasonable care and skill in timely and accurately responding to customer requests and inquiries"; (4) " record proper land records"; (5) " properly service the loan"; (6) " ensure chain of title prior to foreclosing"; and (7) " stop all foreclosure sales that are unlawful."
Id. at 62, 816. The court held that " [a] lender's obligations to offer, consider, or approve loan modifications and to explore foreclosure alternatives are created solely by the loan documents, statutes, regulations, and relevant directives and announcements from the United States Department of the Treasury, Fannie Mae, and other governmental or quasi-governmental agencies." Id. at 67, 820.
Plaintiff points out that there is recent California authority for the proposition that a lender's decision to initiate a loan modification may give rise to a duty of care to the borrower. In Alvarez v. BAC Home Loans Servicing, LP, 228 Cal.App.4th 941, 176 Cal.Rptr.3d 304 (Cal.App. 2014), the plaintiffs argued that defendant lenders " owed them a duty to exercise reasonable care in the review of their loan modification applications once they had agreed to consider them." Id. at 944-45, 306-07. Plaintiffs alleged that defendants breached this duty by (1) failing to consider their applications in a timely manner, (2) foreclosing while plaintiffs were under consideration for a modification, and (3) mishandling their application by relying on incorrect salary information and apparently misplacing application documents. Id. The court held that, under these circumstances, the lender owed the borrower a duty of care.
Alvarez was decided in August 2014. Since then, some courts in the Central District have adopted its reasoning. See, e.g., Segura v. Wells Fargo Bank, NA, No. CV- 14-04195-MWF (AJWx), 2014 WL 4798890, at *13 (C.D. Cal. Sept. 26, 2014) (denying a motion to dismiss a negligence claim based on the premise that lender owed borrower a duty of care in considering modification); Banks v. JPMorgan Chase Bank, NA, No. LA CV 14-06429 JAK (FFMx), 2014 WL 6476139, at *12 (C.D. Cal. Nov. 19, 2014) (" Taken together, [California] cases establish that traditional money-lending activity does not create a duty of care (Nymark), and that a loan modification is generally deemed a traditional money-lending activity (Lueras). They also support the conclusion that servicer conduct during the modification negotiation process may create a special relationship and a resulting duty of care (Alvarez).").
Plaintiff's negligence claim is focused on Ocwen's preparation of a confusing modification letter and failure to address Plaintiff's subsequent requests for clarification. This conduct falls short of that alleged in Alvarez. Although the modification letter from Chase makes this a relatively close case, the FAC does not allege facts sufficient to distinguish this from " traditional money-lending activity." Accordingly, Plaintiff's negligence claim is dismissed with leave to amend.
B. Breach of Contract
Ocwen and U.S. Bank argue that Plaintiff's breach of contract claim fails because (1) Plaintiff fails to allege that any agreement was made between Plaintiff and Ocwen; (2) in any event, the statute of frauds bars Plaintiff's claim because there is no agreement signed by Ocwen; (3) Plaintiff has not satisfied relevant pleading requirements because he has failed to attach the relevant contract to the FAC; (4) Plaintiff has not alleged that he performed or that his performance was excused; (5) Plaintiff has failed to allege breach by Ocwen; and (6) Plaintiff has not alleged that the purported breach was a substantial factor in causing injury to Plaintiff.
1. Agreement Between Plaintiff and Ocwen
Ocwen and U.S. Bank's position that " Plaintiff does not allege that any agreement was made between Plaintiff and Ocwen, " and that, instead, " the purported agreement . . . is a letter from Chase to Plaintiff" is not persuasive. Plaintiff alleges that Chase transferred servicing to Ocwen, and impliedly alleges that the transfer of servicer rights included a transfer of servicer obligations. (See FAC ¶ ¶ 26-27.) Ocwen and U.S. Bank make no effort to rebut this argument.
2. Statute of Frauds
Ocwen and U.S. Bank argue that " an agreement to modify a note secured by a deed of trust or to forebear from foreclosing on real property under a deed of trust must be made in writing and must be signed by the party to be charged, " and that this requirement is not satisfied because Ocwen did not sign the Chase modification letter. (Motion to Dismiss at 8.) This argument fails for the same reason as Ocwen's argument that there was no agreement between it and Plaintiff. Plaintiff alleges that Chase signed the modification letter.
3. The Failure to Attach the Agreement
Ocwen and U.S. Bank argue that the FAC must be dismissed because " Plaintiff has not attached a copy of the contract as an exhibit to the FAC, nor has he set forth the terms of the contract verbatim in the body of the FAC. . . . Instead, Plaintiff has attached what appears to be an invitation to enter into a Trial Payment Plan, which was subject to specific conditions of acceptance (i.e., any Modification Agreement would need to be signed and returned)." (Motion to Dismiss at 8.) Ocwen mischaracterizes the Chase modification letter. The letter is framed in terms of an " offer, " and provides for acceptance by making trial payments. Although the letter also contemplates a " permanent[]" modification to be memorialized in a " permanent mortgage modification agreement, " Plaintiff alleges that it requires Chase--and, presumably, its successor(s)--to modify Plaintiff's loan because all relevant conditions were satisfied.
4. The Failure of Performance
Ocwen and U.S. Bank's suggestion that Plaintiff has failed to perform because he failed to execute a permanent mortgage modification agreement also mischaracterizes Plaintiff's position with respect to the Chase modification letter. The letter allegedly requires Chase to modify Plaintiff's mortgage after Plaintiff made his trial period payments, so long as he continued to satisfy other program requirements. Plaintiff's position is that the Chase modification letter, which he accepted by making trial payments, amounted to an agreement to modify. Ocwen's view that Plaintiff never entered into such an agreement because he never executed a permanent modification agreement puts the cart before the horse: There would have been no purpose to a trial period payment agreement if the parties had already modified the loan.
5. Ocwen's Breach
Ocwen and U.S. Bank argue that Plaintiff has failed to allege breach by Ocwen because Plaintiff acknowledges that " Ocwen sent Plaintiff a modification agreement in June of 2012." (Motion to Dismiss at 8.) Plaintiff's position is that, pursuant to the Chase modification letter, his loan servicer was required to permanently modify his mortgage following his timely remit of trial payments. Ocwen failed to send a permanent modification agreement. Instead, Ocwen offered yet another " modification trial period plan." (FAC, Ex. J.) Plaintiff has alleged breach.
6. Breach as Substantial Factor in Causing Injury
Ocwen and U.S. Bank argue that Plaintiff has failed to allege that the breach was a substantial factor in causing injury to Plaintiff. Plaintiff alleges that he " has incurred significant fees and penalties because Ocwen demands payment in excess of the amount due and then improperly charges Plaintiff late fees and other penalties for insufficient payments and overdue balances." (FAC ¶ 34.) Plaintiff further alleges that " Plaintiff has been damaged by loss of equity in the property, loss of credit, severe emotional distress, and other monetary damages to be proven at trial." (FAC ¶ 70.) Ocwen's answer to the alleged injury to Plaintiff's credit is that " any damage to Plaintiff's credit would be a result of Plaintiff's failure to make his Loan payments." (Motion to Dismiss at 9.) Given that Plaintiff has alleged that he made payments pursuant to the Chase modification letter until Ocwen stopped accepting them, Ocwen and U.S. Bank's argument fails.
C. RESPA
Plaintiff indicates in his Opposition that he does not oppose dismissal of his RESPA claim against Ocwen. Accordingly, this discussion is limited to whether or not Plaintiff should be granted leave to amend. This analysis raises the same issues discussed in Part III. However, it appears that amendment will be futile as to this claim. 12 U.S.C. § 2605(c) requires a transferee of servicing rights to notify the borrower of the transfer within 15 days after the effective date of the transfer. Here, the notice provided by the transferor (Chase), attached as Exhibit I to the FAC, notes that the transfer was to be effective on April 2, 2012, and the notice provided by Ocwen, dated April 10, 2012 and attached as Exhibit 10 to Ocwen and U.S. Bank's Request for Judicial Notice, notes that the transfer was effective on April 1, 2012. The Court is troubled by the discrepancy between the effective dates in the two notices, but Plaintiff does not appear to have any basis to allege that the transfer was effective more than 15 days prior to notice. Accordingly, this claim is dismissed with prejudice.
D. TILA
As with his RESPA claim against Ocwen, Plaintiff indicates that he does not oppose dismissal of his TILA claim against U.S. Bank. This discussion is also limited to whether or not Plaintiff should be granted leave to amend. Here, it does not appear that amendment is necessarily futile. 15 U.S.C. § 1641(g) requires a new creditor to provide a borrower notice of assignment of a mortgage within 30 days. 15 U.S.C. § 1640(e) provides for a one-year statute of limitations running from the date of the alleged violation. Here, the assignment of deed of trust to U.S. Bank was recorded on August 12, 2009 (see Ocwen and U.S. Bank's RJN, Ex. 2), so Plaintiff's claim accrued 31 days later, on September 12, 2009, and the statutory period expired on September 12, 2010. However, Plaintiff may amend the FAC to allege facts relevant to equitable tolling. See Vargas v. JP Morgan Chase Bank, NA, No. CV 14-00859-ODW (JCGx), 30 F.Supp.3d 945, 2014 WL 3439062, at *3 (C.D. Cal. July 15, 2014). Nor does U.S. Bank's argument that Plaintiff cannot recover actual damages warrant dismissal with prejudice. See Schwartz v. U.S. Bank Nat'l Ass'n, No. CV 11-08754 MMM (JCGx), 2012 WL 10423214, at *12 (C.D. Cal. Aug. 3, 2012).
Conclusion
In light of the foregoing, Chase's Motion to Dismiss is granted in part and denied in part. Plaintiff's claims against Chase for negligence and breach of contract are dismissed without prejudice.
Ocwen and U.S. Bank's Motion to Dismiss is also granted in part and denied in part. Plaintiff's negligence claim is dismissed without prejudice. Plaintiff does not oppose dismissal of his claims alleging violation of RESPA and TILA. Accordingly, Plaintiff's RESPA and TILA claims are dismissed--the RESPA claim with prejudice, and the TILA claim without prejudice. The Motion to dismiss the breach of contract claim is denied.
Any amended complaint shall be filed no later than February 9, 2015.
IT IS SO ORDERED.