Brooks v. Fci Lender Servs., Inc., 2:16-cv-2598-KJM-KJN PS
| Decision Date | 23 January 2017 |
| Docket Number | No. 2:16-cv-2598-KJM-KJN PS,2:16-cv-2598-KJM-KJN PS |
| Parties | JOHN BROOKS, et al., Plaintiffs, v. FCI LENDER SERVICES, INC., et al., Defendants. |
| Court | U.S. District Court — Eastern District of California |
Presently before the court is defendant FCI Lender Services, Inc.'s ("FCI") motion to dismiss the claims asserted against it in plaintiffs' complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), or, in the alternative, for a more definite statement pursuant to Federal Rule of Civil Procedure 12(e). (ECF No. 8.) Also before the court is FCI's motion to strike certain portions of the complaint pursuant to Federal Rule of Civil Procedure 12(f). (ECF No. 9.) Plaintiffs filed an opposition to the motions, and FCI filed a reply. (ECF Nos. 15, 25, 26.) The court heard this matter on its January 19, 2017 law and motion calendar. Plaintiff John Brooks appeared on his own behalf, but plaintiff Laura Brooks failed to make an appearance.1 AttorneyFred Hickman appeared telephonically on behalf of FCI.2 The undersigned has fully considered the parties' briefs, the parties' oral arguments, and appropriate portions of the record. For the reasons that follow, the court grants FCI's motion to dismiss, with leave to amend as to some claims, and without leave to amend as to others, as specified below. Furthermore, FCI's motion to strike is denied.
Plaintiffs allege in their complaint that they are the owners of real property located at 1682 Chilton Dr. Roseville, CA 95747 (the "Property"). (ECF No. 1 at 10.) Plaintiffs allege that they took out a "second Deed of Trust" ("Second DOT") on the Property on an unspecified date, which was originally held by defendant Homecoming Financial, LLC, and was subsequently transferred numerous times. (Id.) "At some point in or around 2013, Defendant Ocwen Loan Servicing serviced the loan on behalf of whichever entity held the [Second DOT] at that time." (Id.) Plaintiffs allege further that "[o]n February 20, 2008, Plaintiffs filed for Chapter 7 Bankruptcy in the Eastern District of California," which discharged the loan held by Homecoming Financial, LLC. (Id. at 11.)3
Plaintiffs also allege that "[i]n or around April 2015, the [Second DOT] was held by Defendant Bucks [Financial, LLC]" ("Bucks"). (Id. at 10.) They allege further that "[o]n or about April 13, 2015, Plaintiffs and Bucks reached a settlement/accord and satisfaction, in which Plaintiffs agreed to pay and Bucks agreed to accept the sum of Five Thousand Dollars and no cents ($5,000.00) as full and final settlement of the Second DOT." (Id.) Plaintiffs allege that "[t]his agreement was confirmed in writing."4 (Id.) Plaintiffs allege further that "[w]ithin days ofsending the confirming letter/contract, and prior to Plaintiffs' receipt of said letter, a representative from Bucks contacted Plaintiffs by phone to inform them that Bucks was breaching the agreement." (Id. at 11.) Plaintiffs allege that they offered to send the agreed-upon amount of money to Bucks forthwith, but "Bucks specifically refused Plaintiffs' tender of performance." (Id.)
Plaintiffs allege that Bucks sold the Second DOT to defendant MDJ Properties, LLC ("MDJ") "[i]n or around June 2015," and that MDJ is the current holder of that loan. (Id. at 10-11.) Plaintiffs allege further that defendant FCI is servicing the loan on MDJ's behalf. (Id. at 11.) Plaintiffs also allege that they have attempted to meet and confer with both FCI and MDJ regarding the purported contract plaintiffs had entered into with Bucks, but that both defendants "have refused to acknowledge the settlement/contract." (Id.) Plaintiffs allege that FCI, acting through defendant California TD Specialists, recorded a Notice of Default ("NOD") on the Property on July 5, 2016, and indicated that it will record a Notice of Trustee's Sale. (Id.) Finally, plaintiffs allege that "[a]t all times relevant, including after Plaintiffs filing for Chapter 7 Bankruptcy protection, defendants, and each of them, notified all 3 credit reporting agencies, TransUnion, Equifax, and Experian, that Plaintiffs were delinquent on the payments on the Second DOT." (Id.)
Based on these factual allegations, plaintiffs assert the following 15 causes of action against all defendants: (1) breach of contract and the implied covenant of good faith and fair dealing; (2) fraudulent inducement to contract; (3) common law restitution/unjust enrichment; (4) specific performance; (5) accounting; (6) declaratory judgment and injunctive relief; (7) bad faith denial of contract; (8) violation of bankruptcy discharge injunction; (9) violation of the Fair Debt Collections Practices Act, 15 U.S.C. §§ 1601, 1692 et seq.; (10) violation of the California Fair Debt Collections Practices Act, California Civil Code §§ 1788 et seq.; (11) violation of the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq.; (12) violation of the California Consumer Credit Reporting Act, California Civil Code § 1785.10 et seq.; (13) fraud and conspiracy to commit fraud; (14) unlawful business practices in violation of [California] Business & Professions Code Section 17200; and (15) fraudulent business practices in violation of[California] Business & Professions Code Section 17200. (Id. at 12-25.)
A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the sufficiency of the pleadings set forth in the complaint. Vega v. JPMorgan Chase Bank, N.A., 654 F. Supp. 2d 1104, 1109 (E.D. Cal. 2009). Under the "notice pleading" standard of the Federal Rules of Civil Procedure, a plaintiff's complaint must provide, in part, a "short and plain statement" of plaintiff's claims showing entitlement to relief. Fed. R. Civ. P. 8(a)(2); see also Paulsen v. CNF, Inc., 559 F.3d 1061, 1071 (9th Cir. 2009). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
In considering a motion to dismiss for failure to state a claim, the court accepts all of the facts alleged in the complaint as true and construes them in the light most favorable to the plaintiff. Corrie v. Caterpillar, Inc., 503 F.3d 974, 977 (9th Cir. 2007). The court is "not, however, required to accept as true conclusory allegations that are contradicted by documents referred to in the complaint, and [the court does] not necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Paulsen, 559 F.3d at 1071. The court must construe a pro se pleading liberally to determine if it states a claim and, prior to dismissal, tell a plaintiff of deficiencies in his complaint and give plaintiff an opportunity to cure them if it appears at all possible that the plaintiff can correct the defect. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc); accord Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990) (); see also Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) ().
//// In ruling on a motion to dismiss filed pursuant to Rule 12(b)(6), the court "may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice." Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007) (citation and quotation marks omitted). Although the court may not consider a memorandum in opposition to a defendant's motion to dismiss to determine the propriety of a Rule 12(b)(6) motion, see Schneider v. Cal. Dep't of Corrections, 151 F.3d 1194, 1197 n.1 (9th Cir. 1998), it may consider allegations raised in opposition papers in deciding whether to grant leave to amend, see, e.g., Broam v. Bogan, 320 F.3d 1023, 1026 n.2 (9th Cir. 2003).
As an initial matter, both plaintiffs and FCI request that the court take judicial notice of certain documents purportedly related to the allegations of the complaint, or to this action more generally. (ECF Nos. 10, 15-1.)5 While the court recognizes that many of the documents for which the parties seek judicial notice are properly noticeable, the court declines to notice them at this juncture as none of these documents alter or assist in the court's analysis of FCI's motions set forth below.
For their first cause of action, plaintiffs claim that they entered into a valid written contract with defendant Bucks to fully settle the debt they owed under the Second DOT, which was alleged to be in excess of $70,000, for a total of $5,000, but that Bucks repudiated thatagreement when plaintiffs attempted to tender performance pursuant to its terms. Plaintiffs allege further that the terms of the alleged contract subsequently became binding on defendants FCI and MDJ when MDJ purchased Bucks' rights under the Second DOT and FCI took over the role as servicer under that note, but that both of those defendants refused to acknowledge the terms of that agreement. Based on these allegations, plaintiffs contend that "[d]efendants breached the contract and their duties of good faith and fair dealing . . . insofar as they refused to honor their contractual obligations." (ECF No. 1 at 12.)
To state a claim for breach of contract under California law, plaintiffs must allege (1) the existence of a...
To continue reading
Request your trial