LAWRENCES K. KARLTON

ORDER

This is a mortgage foreclosure case. Plaintiff, proceeding pro se, alleges fifteen (15) federal and state causes of action relating to the foreclosure of his home. Defendants' motions to dismiss were heard by a United States Magistrate Judge pursuant to E.D. Cal. R. ("Local Rule") 302(c)(21).

On March 26, 2013, the Magistrate Judge filed extensive Findings and Recommendations herein which were served on all parties and which contained notice to all parties that any objections to the Findings and Recommendations were to be filed within fourteen days. Plaintiff timely has filed objections to the Findings and Recommendations, and defendants have timely filed a response to plaintiff's objections.

In accordance with the provisions of 28 U.S.C. 636(b)(1)(c) and Local Rule 304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, this court finds the Findings and Recommendations to be supported by the record and by the Magistrate Judge's analysis, except as set forth below.

Defendants Bank of American, NA ("BANA"), BAC Home Loans Servicing LP ("BAC Home Loans") and Balboa Insurance Co. ("Balboa"), assert that the 45-page complaint "should be dismissed in its entirety, with prejudice," because it is not a "short and plain" statement of the claims, and is confusing as to which claims are asserted against which defendants. ECF No. 96 at 14-15. It is within this court's discretion to dismiss an incomprehensible or over-long complaint which no reasonable defendant could comprehend or know how to respond to. See, e.g., McHenry v. Renne, 84 F.3d 1172, 1179 (9th Cir. 1996).

It is true that plaintiff's pro se Complaint is a bit of a mess. However, the Complaint does not deserve a Rule 8 dismissal, as the court is able to disentangle much of what plaintiff is alleging. The court also notes that pro se plaintiff here is essentially caught in the legal vise created by the defendants' complaining that the Complaint is at once too specific for Rule 8, while also being not specific enough for Rules 9(b) and 12(b)(6).

I. CLAIM ONE - RESPA

A. 12 U.S.C. § 2605(e) and 24 C.F.R. § 3500.21.

Plaintiff alleges that defendants BANA and BAC Home Loans violated the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2605(e), and 24 C.F.R. § 3500.21, by failing to respond to his Qualified Written Requests ("QWR"), that is, letters he wrote to defendant loan servicers regarding the servicing of his loan.

Specifically, (1) plaintiff alleges that on August 17, 2010, he sent a QWR to defendant BAC Home Loans Servicing LP ("BAC Home Loans"), the loan servicer at the time. The QWR is attached as Exhibit C to the Complaint. See Second Amended Complaint (ECF No. 91) ("Complaint") ¶ 27; Exhibit C to the Complaint (ECF No. 91-1) at 31. BAC Home Loans "willfully ignored" the QWR and "did not respond." Complaint ¶ 28. (2) Plaintiff alleges that on April 15, 2011, he sent another QWR to BAC Home Loans. The QWR is attached as Exhibit D to the Complaint. Defendant did not respond to this QWR in a timely manner. See Complaint ¶ 46. (3) Plaintiff alleges that on July 24, 2011, he sent a third QWR, this time to Bank of America, N.A. ("BANA"), who had become the servicer on the loan. This QWR is attached as Exhibit Q to the Complaint. Complaint ¶¶ 43 & 46; Exhibit Q to the Complaint (ECF No. 91-1) at 33. BANA did not timely respond to this QWR. Complaint ¶ 43.

The Complaint goes on to allege that defendants' conduct "caused plaintiff actual damages and injuries ... including in part a detriment to plaintiff's ability to sell or refinance his home." Complaint ¶ 46 (emphasis in text).

Defendants BANA and BAC Home Loans move to dismiss. They assert that, "save for one letter," plaintiff "has not alleged the dates on which he sent each of his alleged QWR's." BANA Motion To Dismiss ("BANA Motion") (ECF No. 96) at 17. There are two problems with this assertion.

First, defendant does not address even that "one letter" - the July 24, 2011 letter. See BANA Motion at 17 ("Plaintiff now alleges the date of only one such alleged letter, July 24, 2011, that he claims constitutes a QWR to the bank"). RESPA does not require that a loan servicer fail to respond to a slew of QWRs before it will be found to have violated the law. It states that if one is sent, the loan servicer must respond to that one. See 12 U.S.C. §§ 2 605(e)(1)(A) (if a loan servicer "receives a qualified written request from the borrower ... the servicer shall" acknowledge the letter within 5 days) (emphasis added), 2605(e)(2) (servicer must substantively respond to "any qualified written request" within 30 days) (emphasis added). Defendant seems to argue that because plaintiff failed to allege the date of each one of the QWR's (even assuming this is a fatal pleading error), the claim must be dismissed even as to those QWR's where the dates are alleged. This court knows of no legal basis for such an argument, nor has defendant provided any.

Second, plaintiff has specifically identified three communications he says are QWRs. He specifies the dates they were sent and to whom they were sent. They are, as described above, the August 17, 2010 letter, the April 15, 2011 letter, and the July 24, 2011 letter, and all three are attached as exhibits to the Complaint. See Exhibits C, D & Q to the Complaint.

Defendants also move to dismiss on the ground that plaintiff "has failed to plead facts that establish actual damages as required by the statute," citing 12 U.S.C. § 2605(f)(1)(A). Specifically, defendants argue for dismissal because plaintiff "fails to provide any detail as to how the alleged QWR violation has damaged him." BANA Motion at 17. Defendants assert that:

Plaintiff only makes the general allegation that that "[BANA'S] conduct has caused plaintiff countless unnecessary and substantial actual costs, damages, fees and injuries in fact ... Plaintiff has been and continues to be subject to extreme and physical stress and anxiety over all of the events that occurred after the July 24, 2011 QWR."

This supposedly complete recitation of plaintiff's alleged damages ignores the very next paragraph of the complaint, which alleges that plaintiff's damages include "a detriment to plaintiff's ability to sell or refinance his home." See Complaint ¶ 46. Defendant nowhere asserts that this damage allegation is not specific enough, or lacks causality, and the court will not make those arguments on defendants' behalf.

In addition, plaintiff has specifically alleged three clearly identified instances where he sent a QWR to the loan servicer, and got no timely response to any of them. Accordingly, the Complaint alleges a "pattern or practice of noncompliance" sufficient to state a claim for statutory damages under RESPA. See 12 U.S.C. § 2 605(f)(1)(B) ("additional damages" are available "in the case of a pattern or practice of noncompliance with the requirements of this section").

In short, plaintiff alleges a violation of the Real Estate Settlement Procedures Act ("RESPA"):

RESPA requires the servicer of a federally related mortgage loan to provide a timely written response to inquiries from borrowers regarding the servicing of their loans. 12 U.S.C. § 2605(e)(1)(A), (e)(2). If the servicer fails to respond properly to such a request, the statute entitles the borrower to recover actual damages and, if there is a "pattern or practice of noncompliance," statutory damages of up to $1,000. Id. § 2605(f).

Defendant also asserts that the Complaint's allegation of damages resulting from stress and anxiety are "conclusory," and lacking in detail. The court does not find the allegations to be conclusory. To the contrary, plaintiff paints quite a clear picture. Plaintiff found himself in a dispute with the Bank of America, and BAC Home Loans, the originator and servicers of his home mortgage, a dispute which he must have known could lead to him losing his home. He wrote to the bank requesting information, and received no response, even though the bank was legally required to give him an acknowledgement and then a substantive response. This failure to respond caused him "extreme emotional and physical stress and anxiety." There is nothing "conclusory" about those allegations. They set forth an entirely plausible, factual sequence of events - with clear causality between the violation and the damages - to which defendant must now respond.

B. 12 U.S.C. § 2609 and 24 C.F.R. § 3500.17.

The court adopts the findings and recommendation of the Magistrate Judge that this portion of the first claim be dismissed as to BANA, BAC Home Loans and Balboa, for lack of a private right of action. See ECF No. 123 at 18.

II. CLAIM TWO - TRUTH IN LENDING ACT ("TILA")

Plaintiff alleges that on November 9, 2011, he called BANA, BAC Home Loans and Quality Loan Service Corp. ("QLS"), requesting the exact amount his mortgage was in arrears, and the payoff balance. Complaint ¶ 60. Plaintiff alleges that these defendants never responded, in violation of banking regulations providing that "no servicer shall ... [f]ail to provide, within a reasonable time after receiving a request from the consumer ... an accurate statement of the total outstanding balance that would be required to satisfy the consumer's obligation in full as of a specified date." 12 C.F.R. § 226.36(c)(1)(iii).

Plaintiff also alleges that BAC Home Loans delayed posting plaintiff's December 13, 2010 mortgage payment for eight days. Complaint ¶ 61. See 12 C.F.R. § 226.36(c)(1)(i) ("no servicer shall ... [f]ail to credit a payment to the consumer's loan account as of the date of receipt"). Plaintiff alleges that this posting delay caused him to be liable for a late fee of $48.43. Complaint ¶ 61.

A. "Vague," "Incomplete" and "Generic" Allegations.

Defendants BANA and BAC Home Loans move to dismiss both parts of this claim because the allegations "are vague and incomplete," ECF No. 96 at 20, and because the Complaint contains only "generic allegations of a statutory violation, unsupported by facts," ECF No. 96 at 19. In fact, plaintiff's allegations of defendants' Regulation Z violations are clear and very specific.

Plaintiff alleges that on a specified date, November 9, 2011, he called specified defendants, "both QLS and [BANA]," and requested a specified piece of information, namely "the payoff amount necessary to redeem his home, i.e. 'an accurate statement of the total outstanding balance.'" Complaint ¶ 60. This failure to respond is alleged to violate Regulation Z, which makes it unlawful for those defendants to fail to provide the above-specified information in a timely manner, once requested. See 12 C.F.R. § 226.36(c)(1)(iii).

Plaintiff further alleges that on a specified date, December 13, 2010, "defendant [BAC Home Loans] received plaintiff's payment" of a specified amount, namely $968.57. Complaint ¶ 61. Plaintiff further alleges that the payment "was for the full monthly amount due on the loan." Id. Plaintiff goes on to allege that BAC Home Loans delayed posting that payment until a specified date, namely, December 21, 2010, eight days later. Id. The Complaint specifies the legal provision that this conduct violates, namely, 12 C.F.R. § 226.36(c)(i), which makes it unlawful for a servicer to "[f]ail to credit a payment to the consumer's loan account as of the date of receipt."

Defendants do not explain what is "vague," "incomplete" or "generic" about these allegations, or what additional information they would need in order to understand and respond to the claim. This court finds that there is nothing vague, incomplete or generic about these allegations.

B. Failure To Provide Pay-Off Balance.

1. Defendant QLS.

The court adopts the recommendation of the Magistrate Judge that the TILA/Regulation Z claim against QLS be dismissed, but will do so without leave to amend. This court writes separately to set out its reasoning.

Defendant QLS asserts that it cannot be liable for the failure to provide a payoff balance because it is not a "lender," citing Chow v. Aegis Mortg. Corp., 286 F. Supp. 2d 956 (N.D. Ill. 2003) ("The only parties who can be liable for Truth in Lending Act ("TILA") violations are the original creditor, 15 U.S.C. § 1640, and assignees of that creditor, 15 U.S.C. § 1641"). QLS does not mention 12 C.F.R. § 226.36(c)(1), upon which plaintiff's claim rests, which specifically addresses "[s]ervicing practices," and which specifically prohibits the "servicer" from failing to provide the payoff balance to the borrower within a reasonable time after being asked for it. See 12 C.F.R. § 226.36(c)(1)(iii).

QLS does not explain why it is exempted from liability for violations of Regulation Z that are specifically addressed to it as a servicer. Rather, it has simply ignored the plain language of the Complaint's allegations, leaving it to the Magistrate Judge and this court to figure out, without any input from the parties, whether plaintiff may have a claim against a servicer under the plain language of Regulation Z.

Nevertheless, as QLS does argue, the governing statute here, TILA, provides for civil liability only against the creditor and its assignee. See 15 U.S.C. §§ 1640(a) ("any creditor who fails to comply with any requirement imposed under this part ... is liable") (emphasis added) & 1641 (liability of assignees of creditors). This court knows of no principle that would permit an implementing regulation to create a liability that is broader than, or not even contemplated by, the governing statute. To the contrary,

The rulemaking power granted to an administrative agency charged with the administration of a federal statute is not the power to make law. Rather, it is "'the power to adopt regulations to carry into effect the will of Congress as expressed by the statute.'"

Accordingly, this claim will not lie against QLS, which is alleged to be a loan servicer, not a creditor or lender. See Complaint ¶ 10 (QLS "is in the business of acting as a debt collector, loan servicer, and foreclosure trustee").

2. Defendants BANA and BAC Home Loans.

Defendants BANA and BAC Home Loans argues that the claim is vague, incomplete and generic. See ECF No. 96 at 19-20. As discussed above, the allegations are sufficiently specific. They also argue that the claim is barred by the statute of limitations since the loan documents were signed in 2001. However, the claim is based upon conduct alleged to have occurred in 2010 and 2011. The limitations argument fails.

C. Failure To Credit Payment - BAC Home Loans.

Defendant BAC Home Loans asserts that it is not liable for the alleged failure to post plaintiff's December 13, 2010 mortgage payment in a timely manner, because the claim is "time barred after December 2011." Defendant makes two limitations arguments. First, it asserts that the TILA and Regulation Z claim is time-barred because the claim is based upon loan documents that were signed in 2001. The court adopts the Magistrate Judge's findings and recommendation that the Complaint not be dismissed on this basis. See ECF No. 123 at 23-24.

Second, defendant asserts that the Second Amended Complaint, which first explicitly asserted a claim under TILA and Regulation Z, was filed in 2012, more than one year after the delayed posting. Plaintiff's original complaint, however, was filed on November 7, 2011, within the one-year limitations period. See ECF No. 1. That complaint alleges that "the payment he [plaintiff] made on December 10, 2010, was received" by BAC Home Loans, but that defendants "specifically held the December 10 payment and did not credit it until December 21, 2010." ECF No. 1 ¶ 67 (emphasis in text). It goes on to allege that "this was intentionally done ... to produce a knowingly false and inflated picture of Plaintiff's timely payment under the contract." Id. (emphases in text). It concludes this allegation by stating that Defendants' actions "violated Federal and State debt collection laws ... ." Id. Thus, the original complaint of November 2011 expressly sets out the transactions and conduct that give rise to plaintiff's TILA and Regulation Z claim.

Under these circumstances, the "relation back" doctrine applies. Fed. R. Civ. P. 15(c)(1)(B) ("An amendment to a pleading relates back to the date of the original pleading when ... the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out - or attempted to be set out - in the original pleading"). The pro se plaintiff's failure to explicitly mention the statute or regulation does not prevent him from taking advantage of the relation back doctrine.

The claim is not time-barred.

III. CLAIM THREE - FDCPA & ROSENTHAL ACT

A. Fair Debt Collection Practices Act ("FDCPA")

Plaintiff alleges that BANA, BAC Home Loans and QLS violated the federal Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692e and 1692g.

Section 1692e prohibits "debt collectors" from using any "false, deceptive, or misleading representation or means in connection with the collection of any debt." 15 U.S.C. § 1692e(1). Among other things, debt collectors may not falsely represent or imply "that any individual is an attorney or that any communication is from an attorney." 15 U.S.C. § 1692e(3). They also may not falsely represent "the character, amount, or legal status of any debt." Id., § 1692e(2)(A).

Section 1692g requires a debt collector to provide, upon request, "the name and address of the original creditor, if different from the current creditor." 15 U.S.C. § 1692g.

1. BANA and BAC Home Loans.

Defendants BANA and BAC Home Loans assert that they are categorically exempt from the FDCPA because they are not "debt collectors." The FDCPA exempts from its provisions the "originator" of a debt the person is trying to collect. 15 U.S.C. § 1692a(6)(F)(ii); De Dios v. International Realty & Investments, 641 F.3d 1071, 1074 (9th Cir. 2011) ("the person who originated the debt, such as a creditor to whom the debt was originally owed, is not considered a debt collector"). The Complaint alleges that BANA is the originator of the mortgage at issue here. See Complaint ¶ 16. Accordingly, the court adopts the Magistrate Judge's finding and recommendation that BANA be dismissed from the FDCPA claims because it is categorically exempt as a "creditor."

The court adopts the Magistrate Judge's recommendation that BAC Home Loans also be dismissed from the FDCPA claim, but not because BAC Home Loans is categorically exempt from the FDCPA based upon its status as a mortgage loan servicer. According to the Ninth Circuit, the legislative history shows that "mortgage service companies" are only exempt "'so long as the debts were not in default when taken for servicing.'" De Dios, 641 F.3d at 1075 n.3.

In fact, the FDCPA specifically exempts a person collecting a debt "which was not in default at the time it was obtained by such person." 15 U.S.C. § 1692a(6)(F)(iii); De Dios, 641 F.3d at 1076 ("International Realty is exempt from the definition of a 'debt collector' under § 1692a(6)(F)(iii) because it obtained the right to collect De Dios's rent before the debt was contractually overdue"). The Complaint alleges that BAC Home Loans became the servicer of the mortgage "in November 2009," before any alleged arrearage occurred. Complaint ¶ 21. Accordingly, BAC Home Loans, whether or not it is a "debt collector," is exempt from plaintiff's FDCPA claims.

2. QLS.

QLS asserts that "Plaintiff fails to support his conclusory statement that Quality is a debt collector within the meaning of the FDCPA." QLS Motion at 13. The FDCPA defines a "debt collector to be:

any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.

These allegations, standing alone, are sufficient to allege that QLS is a debt collector within the meaning of the FDCPA, for purposes of this dismissal motion. The Complaint goes further, however, by attaching a communication from QLS to plaintiff. See Exhibit P ("Notice of Trustee's Sale"). The communication states, in bold, capital letters:

THIS NOTICE IS SENT FOR THE PURPOSE OF COLLECTING A DEBT. THIS FIRM IS ATTEMPTING TO COLLECT A DEBT ON BEHALF OF THE HOLDER AND OWNER OF THE NOTE. ANY INFORMATION OBTAINED BY OR PROVIDED TO THIS FIRM OR THE CREDITOR WILL BE USED FOR THAT PURPOSE.

QLS goes on to argue that the Complaint fails to allege that it engaged in any "unfair practices." QLS Motion at 13. The Complaint, in fact, alleges that QLS made a false, deceptive, or misleading representation in connection with its efforts to collect a debt, in violation of 15 U.S.C. § 1692e. Specifically, the Complaint alleges that QLS falsely denied that it could give plaintiff information about the debt, and also, that "'only the lender could postpone the sale.'" Complaint ¶ 36 (emphasis in text). Yet, when plaintiff called the lender that same day, the lender's employee told plaintiff that he had to get the information from QLS, and that "'only the trustee [QLS] could postpone the sale.'" Complaint ¶ 37 (emphasis in text). There is nothing conclusory or vague about these allegations, which plainly point to an unfair credit collection practice.

Accordingly, the claim alleging that QLS violated 15 U.S.C. § 1692e(2)(A) & (3) will not be dismissed.

B. Rosenthal Fair Debt Collection Practices Act.

Plaintiff alleges that BANA violated the Rosenthal Fair Debt Collection Practices Act ("Rosenthal Act"), Cal. Civ. Code §§ 1788, et seq., by falsely referring to QLS, the entity it was referring plaintiff to in order to resolve the foreclosure, as "the attorneys." Complaint ¶ 68.

BANA moves to dismiss solely on the grounds that it is exempt from the Rosenthal Act because it is a mortgage "lender[] and/or servicer[]." As the Magistrate Judge points out, BANA incorrectly relies on the federal statute to argue that it is exempt under the state law. BANA cites no provision of the Rosenthal Act where this asserted exemption can be found, and cites no cases decided under the Act that stand for this proposition. BANA has failed to show that it is exempt under the Rosenthal Act.

Plaintiff alleges that BANA is a "debt collector" pursuant to Cal. Civ. Code 1788.2 of the Rosenthal Act. That provision defines "debt collector" broader than the FDCPA does, by including persons collecting their own debts, whereas such persons are expressly exempted under the FDCPA. Compare Cal. Civ. Code § 1788.2(c) ("The term "debt collector" means any person who, in the ordinary course of business, regularly, on behalf of himself or herself or others, engages in debt collection") (emphasis added), with 15 U.S.C. § 1692a(6) ("The term 'debt collector' means any person who ... regularly collects or attempts to collect ... debts owed or due or asserted to be owed or due another") (emphasis added).

Accordingly, the court adopts the Magistrate Judge's finding that BANA is not exempt under the Rosenthal Act. See ECF No. 123 at 31. However, the court does not adopt the recommendation that the claim be dismissed for lack of specificity. As noted above, the Complaint specifically alleges that BANA falsely referred to QLS as "the attorneys," conduct that is expressly made unlawful by the Rosenthal Act. See Cal. Civ. Code § 1788.13(b) (prohibiting a debt collector from making "[a]ny false representation that any person is an attorney or counselor at law").

IV. CLAIM 4 - CAL. CIV. CODE § 2954(a)(1)

Plaintiff alleges that BAC Home set up an illegal escrow account against his mortgage. California law provides that:

[n]o ... account for payment of ... insurance premiums or other purposes relating to the property shall be required as a condition of a ... loan secured by a deed of trust or mortgage on real property [except in specified situations].

The court adopts the Magistrate Judge's findings and recommendation that Claim 4 not be dismissed, and it will proceed against BAC Home only. See ECF No. 123 at 32-34.

V. CLAIM 5 - FRAUD, NEGLIGENT MISREPRESENTATION & CONSPIRACY

A. Fraud at the closing.

"The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or 'scienter'); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage." (5 Witkin, Summary of Cal.Law (9th ed. 1988) Torts.

Plaintiff alleges that BANA and BAC Mortgage committed fraud in connection with the creation of his mortgage, at the end of January 2001. Plaintiff alleges that he refused to go forward with the closing unless BANA agreed that no "escrow account" would ever be placed against the property (other than the initial escrow required by law since his down-payment was under 20% of the purchase price). Complaint ¶¶ 73 & 81 ("Plaintiff stopped the entire purchase of the property at his final closing paperwork signing on January 30, 2001 and was ready and willing to cancel it had [BANA], BAC Mortgage authorized employees, not agreed to his demand of 'absolutely no escrow accounts ever for hazard insurance or property taxes'"). The Complaint alleges that this was an oral agreement that was reduced to a "written mutual agreement" at the closing. Complaint ¶ 73.

The Complaint further alleges that BANA (through its agent, Susan Birge), had plaintiff make changes to the "closing paperwork" before signing, specifically, "forms BA 174 and BA084," assuring him that the changes to those documents would have the effect that he wanted, namely, it would prevent any future escrow account from being placed against the mortgage. Complaint ¶¶ 82-83. Plaintiff alleges that in reliance upon BANA's representations, he went forward with the closing, even though he "could easily have gone to another lender" if BANA had not agreed to the modifications prohibiting future escrow accounts. Complaint ¶ 83.

The Complaint further alleges that BANA's statements were misrepresentations, because it "had no intention" of abiding by the representations it had made regarding the promise of "no escrow account ever for the remainder of the loan." Complaint ¶ 82. Plaintiff alleges that he did not discover the misrepresentation until July 2010, when he discovered that BANA and others had "created an escrow account on Plaintiff's loan" the month before. Complaint ¶¶ 84 & 86. Finally, plaintiff alleges that the creation of this escrow account was the start of all the harm that he complains of now.

BANA moves to dismiss this claim because (1) it is barred by the three-year statute of limitations, and (2) it is not specific enough.

1. Limitations.

Fraud claims under California law are subject to a three-year statute of limitations. Cal. Code Civ. P. § 338(d). However, the fraud claim "is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake." Id. Plaintiff specifically alleges that he did not discover BANA's deceit until July 2010, when the escrow account - which BANA promised in 2001 would never be created -was created. Complaint ¶ 84. Defendant offers no reason the court should reject plaintiff's assertion that the limitations period is tolled until he discovers the fraud, and the court knows of none.

2. Specificity.

As recounted above, the complaint sets forth with particularity exactly what misrepresentations plaintiff is challenging, namely, that no escrow account (other than the initial PMI escrow account) would ever be placed against plaintiff's mortgage account. Moreover, those allegations set forth all of the elements of a fraud claim.

The fraud claim is not subject to dismissal, and will proceed against BANA and BANA Mortgage.

B. Fraud, Negligent Representation and Deceit in Loan Modification Activities.

Plaintiff alleges that in 2010 and 2011, defendant BANA and BAC Home Loans, and others, acting through their agent, defendant Home Retention Group ("HRG"), created a false paper trail relating to his supposed request for a loan modification through the federal Home Affordable Mortgage Program ("HAMP") program. Plaintiff denies that he ever applied for loan modification.

Specifically, in April or May 2011, HRG sent plaintiff a letter falsely stating that plaintiff "had sent in their loan modification package for the 'HAMP,' that he was seeking a home loan modification and was asking for assistance." Complaint ¶ 91. On June 28, 2011, BAC Home Loans sent plaintiff a letter falsely stating that it had reviewed plaintiff's "request for a loan modification" under HAMP, even though plaintiff had never sent in such a request. Complaint ¶ 94. That letter also stated that plaintiff's supposed request "was denied because he had not sent in the requested documents." Id. On July 1, 2011, BANA sent plaintiff a letter falsely stating that it had received plaintiff's "request for workout assistance," even though plaintiff had never requested assistance. Complaint ¶ 97. Plaintiff alleges that defendants sent similar false letters to the HAMP administrator. Complaint ¶ 95.

According to plaintiff, defendants did all this to collect money from plaintiff that he did not owe, and to create a false impression that they had complied with all guidelines permitting them to foreclose. Complaint ¶ 89-97. As a result, plaintiff alleges, plaintiff is now disqualified from applying for a loan modification through HAMP. Complaint ¶ 96.

Defendants move to dismiss based on the statute of limitations, since the loan was issued in 2001. This is no basis for dismissal, as the basis of the alleged fraud claim is conduct that took place in 2010 and 2011.

Defendants also move to dismiss asserting that the Complaint is not "specific enough" under Fed. R. Civ. P. 9(b), governing fraud allegations. This court finds that the allegations are sufficiently specific to allow defendants to defend themselves.

However, the Complaint on its fact does not state a claim for fraud or misrepresentation. An essential element of this claim is "deceit," that is, the victim of the fraud must be deceived, and take action (justifiable reliance) based upon that deceit. Here, plaintiff alleges that he knew that these letters were false, thus he was never deceived. Moreover, he does not allege that he justifiably relied upon the supposed truth of the communications. The claim for negligent misrepresentation also requires allegations that the victim was deceived and justifiably relied on the deception.

This portion of the fraud claim will be dismissed for failure to state a claim.

C. Conspiracy - The HAMP Program.

Plaintiff alleges that BANA, BAC Home Loans and FHLMC conspired in the creation of the false paper trail relating to the HAMP program, discussed above. This court has already found that there was no viable claim for fraud or misrepresentation against BANA, the only defendant charged with fraud. Therefore, there can be no claim for civil conspiracy against anyone who allegedly conspired with BANA to inflict a tort that never occurred.

There is no separate tort of civil conspiracy. The significance of the allegation is to hold each member of the conspiracy liable as a joint tortfeasor. This joint liability does not accrue unless a wrongful act is carried out and damage results.

The claim for conspiracy will therefore be dismissed in its entirety, for failure to state a claim.

VI. CLAIM 6 - BREACH OF CONTRACT

[T]he elements of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff.

Oasis West Realty, LLC v. Goldman, 51 Cal. 4th 811, 821 (2011). Plaintiff alleges that BANA breached the contract (the Deed of Trust) by (1) creating an "unlawful escrow account on Plaintiff's Mortgage loan," and (2) failing to credit his payments in a timely manner.

A. BANA and BAC Home Loans.

Defendants seek dismissal, asserting that plaintiff failed to allege his own performance (and indeed, that he alleged his own non-performance), and failed to allege defendant's breach.

As for plaintiff's own performance, it appears that plaintiff's obligation to have a homeowner's insurance policy arose in May 2001, when plaintiff took out a second mortgage on his home. See Complaint ¶ 23. It further appears that for nine (9) years, May 2001 until May 2010, BANA acquiesced in plaintiff's failure to obtain insurance - or at least, his failure to produce it - finally demanding it in May 2010. Id. Plaintiff accordingly alleges that defendant has waived this provision of the Deed of Trust. Thus, while plaintiff has not alleged complete performance, he has alleged an excuse for non-performance or waiver of performance. Defendant does not address the allegation of waiver, and the court will not reject it on its own initiative.

Defendants assert that plaintiff failed to allege breach. That is not so. Plaintiff alleges that a written modification to the Deed of Trust - which he has not attached to the complaint -contains an agreement that BANA would never create an escrow account against his mortgage, other than the initial PMI escrow account. He further alleges that in breach of that written agreement, defendant created an escrow account against his mortgage.

It does seem that plaintiff's allegation brushes right up against the "plausibility" standard of Iqbal. It is hard to believe that a lender would ever agree to such a thing, and it is suspicious that plaintiff has never produced this written modification. However, it seems to the court that plaintiff's allegations are merely improbable, rather than implausible, and therefore they will survive dismissal.

[s]ome improbable allegations might properly be disposed of on summary judgment, but to dismiss them as frivolous without any factual development is to disregard the age-old insight that many allegations might be "strange, but true; for truth is always strange, Stranger than fiction." Lord Byron, Don Juan, canto XIV, stanza 101 (T. Steffan, E. Steffan & W. Pratt eds. 1977)).

B. QLS and Balboa.

QLS and Balboa move to dismiss because plaintiff has not alleged that they were party to any contract with plaintiff. That is correct, and the court accordingly adopts the Magistrate Judge's findings and recommendations that the claim be dismissed against QLS and Balboa. See ECF No. 123 at 39.

VII. DECLARATORY RELIEF

"To qualify for declaratory relief, [a party] would have to demonstrate its action presented two essential elements: '(1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to [the party's] rights or obligations.'"

Plaintiff seeks a declaration determining the respective rights of the parties. Defendant seeks to dismiss solely on the grounds that it is duplicative of the relief he seeks from the lawsuit as a whole. It does appear that "this cause of action is redundant of [plaintiff's] other claims," and will be dismissed for that reason. Jolley, 213 Cal. App. 4th at 909. However, the request for declaratory relief remains in the Complaint as one of the requested elements of relief. See Complaint page 47.

VIII. ACCOUNTING

Plaintiff seeks an accounting of moneys paid and due on the mortgage transaction.

A cause of action for an accounting requires a showing that a relationship exists between the plaintiff and defendant that requires an accounting, and that some balance is due the plaintiff that can only be ascertained by an accounting.

Defendants seek dismissal solely on the grounds that plaintiff has not alleged that any sums are due to him that would be the subject of an accounting. ECF No. 69 at 28-29. That is not so. Plaintiff alleges that "he has actually overpaid [defendants] and is entitled to a refund on his mortgage account." Complaint ¶ 134. Plaintiff seeks an accounting to determine the amount of his overpayment.

IX. CONVERSION

Plaintiff alleges that defendants collected from him "escrow funds" which were to be credited to his mortgage payments (interest and principal) and, to the degree they were surplus, were to be returned to plaintiff. Complaint ¶¶ 136-37. Instead of doing either, plaintiff alleges, defendants wrongfully kept the funds. Id.

"'Conversion is the wrongful exercise of dominion over the property of another.'" The elements of a claim for conversion are (1) "the plaintiff's ownership or right to possession of the property at the time of the conversion," (2) "the defendant's conversion by a wrongful act or disposition of property rights," and (3) damages. "It is not necessary that there be a manual taking of the property," only "an assumption of control or ownership over the property, or that the alleged converter has applied the property to his [or her] own use."

A cause of action for conversion of money can be stated only where defendant interferes
with plaintiff's possessory interest in a specific, identifiable sum, such as when a trustee or agent misappropriates the money entrusted to him. "'Money cannot be the subject of a cause of action for conversion unless there is a specific, identifiable sum involved, such as where an agent accepts a sum of money to be paid to another and fails to make the payment.

Defendant moves to dismiss on the grounds that plaintiff's right to payment is a "mere contractual one." ECF No. 96 at 29. This misconceives the claim plaintiff is making. Plaintiff does not simply assert that defendants owe him money under the contract. Rather, he asserts that pursuant to the contract, he entrusted specific sums of money to defendants, which defendants were to use for a specific purpose - to credit plaintiff's mortgage account, and return the surplus. Plaintiff further asserts that defendants instead took the money entrusted to them, used it to pay fees plaintiff did not owe, and are refusing to return it, or even any surplus after the fees are paid. This states a claim for conversion.

X. WRONGFUL FORECLOSURE

Plaintiff asserts a claim for wrongful foreclosure, alleging numerous errors and points of unfairness, and also alleging that he has made "full and timely tender of all amounts owed to defendants." See Complaint ¶ 147. Defendant

To obtain the equitable set aside of a trustee's sale or maintain a wrongful foreclosure claim, a plaintiff must allege that (1) defendants caused an illegal,
fraudulent, or willfully oppressive sale of the property pursuant to a power of sale in a mortgage or deed of trust; (2) plaintiff suffered prejudice or harm; and (3) plaintiff tendered the amount of the secured indebtedness or were excused from tendering. Recognized exceptions to the tender rule include when: (1) the underlying debt is void, (2) the foreclosure sale or trustee's deed is void on its face, (3) a counterclaim offsets the amount due, (4) specific circumstances make it inequitable to enforce the debt against the party challenging the sale, or (5) the foreclosure sale has not yet occurred.

Defendant BANA moves to dismiss on the ground that plaintiff has not alleged "tender." This has two problems. First, plaintiff has alleged "tender." See Complaint ¶ 147. Second, tender is not required where the claim is for "wrongful foreclosure" where, as here, "the foreclosure sale has not yet occurred." Chavez, 219 Cal. App. 4th at 1062. BANA also asserts that plaintiff has not performed under the Deed of Trust by failing to obtain insurance on the property. As discussed above, plaintiff has credibly alleged that BANA has waived plaintiff's performance.

Defendant QLS moves to dismiss because plaintiff has not alleged it did anything unlawful, and because it acted in good faith. However, plaintiff has set out in excruciating detail all the things he says went wrong with the Notice of Trustee's Sale, and why he thinks they violate specified sections of California law. If QLS wishes to get this claim dismissed, it must set forth which allegations are not legally sufficient, and why. This court will not, on its own initiative, try to identify the allegations QLS thinks are insufficient and why.

XI. BREACH OF THE COVENANT OF GOOD FAITH AND FAIR DEALING

Plaintiff asserts that all defendants breached the covenant of good faith and fair dealing in relation to the Deed of Trust. Broadly stated, that covenant requires that neither party do anything that will deprive the other of the benefits of the agreement. Freeman & Mills, Inc. v. Belcher Oil Co., 11 Cal. 4th 85, 91 (1995).

A. Defendants QLS and Balboa.

The court adopts the Magistrate's findings and recommendation that QLS and Balboa be dismissed from this claim because they are not alleged to be parties to the mortgage agreement. See ECF No. 123 at 46-47.

B. BANA and BAC Home Loans.

Defendants BANA and BAC Home Loans move to dismiss this claim because this claim "is limited to situations in which a fiduciary relationship exists." ECF No. 96 at 30. However, as the Magistrate Judge found, in California, every contract carries with it an implied covenant of good faith and fair dealing. See, e.g., Wilson v. 21st Century Ins. Co., 42 Cal. 4th 713, 720 (2007) ("The law implies in every contract ... a covenant of good faith and fair dealing"); Freeman & Mills, Inc. v. Belcher Oil Co., 11 Cal. 4th 85, 91 (1995) ("'It is well settled that, in California, the law implies in every contract a covenant of good faith and fair dealing.'") (emphasis in text); Carma Developers (Cal.), Inc. v. Marathon Development California, Inc., 2 Cal. 4th 342, 371-72 (1992) (same).

BANA also asserts that the Complaint does not allege that defendants have frustrated plaintiff's ability to obtain the benefits of the original loan. This is also not so. Plaintiff alleges that by placing the escrow account against his mortgage, BANA has prevented plaintiff from paying off his mortgage in the manner he anticipated and agreed to, at the time he signed the modified mortgage agreement.

This claim will not be dismissed against BANA.

XII. NEGLIGENCE

The court adopts the Magistrate Judge's findings and recommendation that the negligence claim be dismissed as to BANA, BAC Home Loans and Balboa, except that the claim will be dismissed with prejudice. See ECF No. 123 at 48-49.

XIII. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

The court adopts the Magistrate Judge's findings and recommendation that the claim for intentional infliction of emotional distress be dismissed as to BANA, BAC Home Loans, Balboa and QLS, except that the claim will be dismissed with prejudice. See ECF No. 123 at 49-50.

XIV. CALIFORNIA'S FAIR BUSINESS LAW

Defendants move to dismiss the claim under Cal. Bus. & Prof. Code § 17200 on the ground that the court should dismiss all the underlying claims of unfair or unlawful practices. Since some of those claims have survived dismissal, this claim will not be dismissed, to the degree it is predicated on a surviving claim.

XV. CIVIL RICO

The court adopts the Magistrate Judge's findings and recommendation that the civil claim under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), be dismissed as to BANA, BAC Home Loans, Balboa and QLS, except that the claim will be dismissed with prejudice. See ECF No. 123 at 28-29.

CONCLUSION

For the reasons set forth above:

1. The motion of BANA, BAC Home Loans, Balboa and QLS to dismiss the complaint in its entirety for failure to comply with Rule 8 is DENIED;

2. The motion of BANA and BAC Home Loans, to dismiss the RESPA claim (Claim One), under 12 U.S.C. § 2605(e) and 24 C.F.R. § 3500.21, is DENIED, as plaintiff has properly alleged that defendants failed to respond to three QWRs in a timely manner;

3. The motion of BANA and BAC Home Loans, to dismiss the RESPA claim (also Claim One), under 12 U.S.C. § 2609 AND 24 C.F.R. § 3500.17, is GRANTED without leave to amend, as there is no private right of action.

Accordingly, this portion of Claim One is DISMISSED in its entirety, with prejudice;

4. The motion of QLS, to dismiss the TILA and Regulation Z claim (Cl aim Two), is GRANTED without leave to amend, as the claim only lies against a creditor or lender.

Accordingly, this portion of Claim Two (against QLS) is DISMISSED, with prejudice;

5. The motion of BANA and BAC Home Loans to dismiss the TILA and Regulation Z claim (also Claim Two), is DENIED, as the allegations that defendants failed to provide a pay-off balance, and failed to credit plaintiff's payment in a timely manner, are sufficiently pled, and the claim is not barred by the statute of limitations;

7. The motion of BANA and BAC Home Loans to dismiss the FDCPA claim (Claim Three), is GRANTED without leave to amend, as BANA is categorically exempt as a "creditor," and BAC Home Loans is exempt because under the facts alleged in the Complaint, it is not a "debt collector."

Accordingly, this portion of Claim Three (against BANA and BAC Home Loans) is DISMISSED, with prejudice;

8. The motion of QLS to dismiss the FDCPA claim (also Claim Three), is DENIED, as the Complaint sufficiently alleges that QLS is a "debt collector," and sufficiently alleges conduct that violates the FDCPA;

9. The motion of BANA to dismiss the Rosenthal Act claim (also Claim Three) is DENIED, because BANA is not exempt and the Complaint sufficiently alleges that BANA falsely referred to QLS as "the attorneys;"

10. The motion of BANA to dismiss the claim under Cal. Civ. Code § 2954(a)(1) (Claim Four), is DENIED for reasons set forth by the Magistrate Judge;

11. The motion of BANA to dismiss the fraud claim (Claim Five), is DENIED, as it is not barred by the statute of limitations and sufficiently pleads a claim for fraud;

12. The motion of BANA, BAC Home Loans and QLS to dismiss the Negligent Misrepresentation claim regarding loan modification activities (also Claim Five) is GRANTED without leave to amend, as the allegations fail to state a claim.

Accordingly, this portion of Claim Five is DISMISSED in its entirety, with prejudice;

13. The motion of BANA and BAC Home Loans to dismiss the conspiracy claim (also Claim Five), is GRANTED without leave to amend, as the allegations fail to state a claim.

Accordingly, the conspiracy portion of Claim Five is DISMISSED in its entirety, with prejudice;

14. The motion of BANA to dismiss the breach of contract claim (Claim Six), is DENIED, as the Complaint sufficiently alleges the elements of the claim;

15. The motions of and BAC Home Loans, Balboa and QLS to dismiss the breach of contract claim (also Claim Six), are GRANTED without leave to amend, as plaintiff does not allege any contract with BAC Home Loans, Balboa or QLS.

Accordingly, this portion of Claim Six (against BAC Home Loans, Balboa and QLS) is DISMISSED, with prejudice;

16. The motions of BANA, BAC Home Loans, Balboa and QLS to dismiss the claim for declaratory relief (Claim Seven), are GRANTED without leave to amend, as the claim is redundant of the request for relief.

Accordingly, Claim Seven is DISMISSED in its entirety, with prejudice;

17. The motion of BANA and BAC Home Loans to dismiss the claim for an accounting (Claim Eight), is DENIED, as the Complaint sufficiently pleads the claim;

18. The motion of BANA and BAC Home Loans to dismiss the conversion claim (Claim Nine), is DENIED, as the Complaint sufficiently pleads the claim;

19. The motions of BANA, BAC Home Loans, Balboa and QLS to dismiss the claim for wrongful foreclosure (Claim Ten), is DENIED, as the Complaint sufficiently pleads the claim;

20. The motion of BANA and BAC Home Loans to dismiss the claim for breach of the covenant of good faith and fair dealing (Claim Eleven), is DENIED, as the Complaint sufficiently pleads the claim;

21. The motions of Balboa and QLS to dismiss the claim for breach of the covenant of good faith and fair dealing (also Claim Eleven), is GRANTED without leave to amend, as the Complaint does not allege they are parties to the contract.

Accordingly, this portion of Claim Eleven (against Balboa and QLS) is DISMISSED, with prejudice;

22. The motion of BANA and BAC Home Loans to dismiss the claim for negligence (Claim Twelve), is GRANTED without leave to amend, as the Complaint fails to state a claim;

Accordingly, Claim Twelve is DISMISSED in its entirety, with prejudice;

23. The motions of BANA, BAC Home Loans, Balboa and QLS to dismiss the claim for intentional infliction of emotional distress (Claim Thirteen), is GRANTED without leave to amend, as the Complaint fails to state a claim;

Accordingly, Claim Thirteen is DISMISSED in its entirety, with prejudice;

24. The motions of BANA, BAC Home Loans, Balboa and QLS to dismiss the claim for violation of Cal. Bus. & Prof. Code § 17200 (Claim Fourteen), is DENIED to the degree the claim is predicated upon any of the surviving claims discussed above;

25. The motions of BANA, BAC Home Loans, Balboa and QLS to dismiss the claim for civil RICO (Claim Fourteen), is GRANTED without leave to amend, for failure to state a claim;

Accordingly, Claim Fifteen is DISMISSED in its entirety, with prejudice.

This matter is remanded to the Magistrate Judge for further proceedings.

IT IS SO ORDERED.

__________

LAWRENCES K. KARLTON

SENIOR JUDGE

UNITED STATES DISTRICT COURT