Opinion
CASE NO. 19-cv-02946-YGR
08-21-2019
JEFFREY KUNTZ, Plaintiff, v. BANK OF AMERICA N.A., Defendant.
ORDER DENYING MOTION TO DISMISS
Re: Dkt. No. 10
Defendant's motion to dismiss only raises one issue - whether a cause of action for inadequate notice under Section 1691(d) of the Equal Credit Opportunity Act ("ECOA"), 15 U.S.C. § 1691(d), requires an allegation that the plaintiff is a member of a protected class. (See Dkt. No. 10 ("MTD") at 2.) The Ninth Circuit has not addressed this issue and courts within the Circuit have split on the issue. Compare Harvey v. Bank of Am., N.A., 906 F.Supp.2d 982, 990-91 (N.D. Cal. 2012) (citing Hafiz v. Greenpoint Mortg. Funding, Inc., 652 F.Supp.2d 1039, 1045 (N.D. Cal. 2009) (iterating the elements of an ECOA claim articulated in Hafiz and dismissing plaintiff's ECOA claims, including inadequate notice under Section 1691(d), for failure to allege her membership in a protected class) with Banks v. JPMorgan Chase Bank, N.A., No. LA 14-cv-06429 JAK, 2015 WL 2215220, at *5 (C.D. Cal. May 11, 2015) (denying motion to dismiss plaintiff's Section 1691(d) ECOA claim and finding that "neither the borrower's membership in a protected class nor the lender's discrimination is an element of a claim under 15 U.S.C. § 1691(d)").
The Court finds persuasive and adopts the analysis by those courts that have found that membership in a protected class is not an element of a claim of inadequate notice under Section 1691(d) of the ECOA. See id.; Vasquez v. Bank of Am. N.A., No. 13-cv-02902-JST, 2013 WL 6001924, at *10-12 (N.D. Cal. Nov. 12, 2013) (finding that the elements of an ECOA claim articulated in Hafiz do not apply to the ECOA's procedural notice and response requirements); Green v. Central Mortg. Co., 148 F.Supp.3d 852, 879 (N.D. Cal. 2013) (same); Perryman v. JPMorgan Chase Bank, N.A., No. 1:16-cv-00643, 2015 WL 444210, at *7 (E.D. Cal. 2016) (same); see also Errico v. Pac. Capital Bank, N.A., 753 F.Supp.2d 1034, 1042 (N.D. Cal. 2010) (citing Dufay v. Bank of Am., 94 F.3d 561 (9th Cir. 1996) ("As a preliminary matter, a procedural violation of the notice provisions of ECOA may provide the basis for a cause of action even without regard the allegations of discrimination."); Schlegel v. Wells Fargo Bank, N.A., 720 F.3d 1204, 1210 (9th Cir. 2013) (referring to the procedural notice requirements of the ECOA as "[o]ne way that ECOA effectuates" the goal of effectuating the broader antidiscrimination purpose of the statute). Accordingly, the Court DENIES defendant's motion to dismiss. Defendant shall file its answer to plaintiff's complaint no later than twenty-one (21) days from the date of this Order.
The Court finds unpersuasive the cases relied upon by defendant. (See MTD at 4; Dkt. No. 19 ("Reply") at 1-2.) In Harvey, the court applied the Hafiz ECOA discrimination elements to a notice claim without analysis. See 906 F.Supp.2d at 990-91. In Owens v. Bank of Am., N.A., this Court, in a case predating those adopted by the Court above, did the same as the argument presented here was not before the Court. See No. 11-cv-4580-YGR, 2012 WL 5340577, at *4 (N.D. Cal. Oct. 25, 2012); No. 11-cv-4580-YGR, Docket Number 99. In Saterbak v. Nat'l Default Servicing Corp., the court adopted the approach by the Harvey court without analysis. See No. 15cv956-WQH-NLS, 2015 WL 5794560, at *16 (S.D. Cal. Oct. 1, 2015) In Banks v. JPMorgan Chase Bank, N.A., although the court did dismiss plaintiff's Section 1691(d) claim for failure to allege membership in a protected class, relying on Hafiz and Harvey, No. CV 14-06429-JAK (FFMx), 2014 WL 6476139 (C.D. Cal. Nov. 19, 2014), the court subsequently found the plaintiff's renewed argument, very similar to the one articulated here, persuasive. See Banks, 2015 WL 2215220, at *5 (finding that "[o]n further view, [p]laintiff's argument is persuasive" and that "neither the borrower's membership in a protected class nor the lender's discrimination is an element of a claim under 15 U.S.C. § 1691(d)").
This Order terminates Docket Number 10.
IT IS SO ORDERED. Dated: August 21, 2019
/s/ _________
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE