Darrin v. Bank of Am., N.A.
| Decision Date | 06 March 2013 |
| Docket Number | No. 2:12-cv-00228-MCE-KJN,2:12-cv-00228-MCE-KJN |
| Court | U.S. District Court — Eastern District of California |
| Parties | JUDE DARRIN, individually, and on behalf of the general public, Plaintiff, v. BANK OF AMERICA, N.A., EXPERIAN INFORMATION SOLUTIONS, INC., EQUIFAX INFORMATION SERVICES, LLC, & TRANSUNION LLC, Defendants. |
On November 12, 2012, Jude Darrin ("Plaintiff") filed a Second Amended Complaint ("SAC") against Bank of America ("BoA"), Experian Information Solutions, Inc. ("Experian"), Equifax Information Services, LLC ("Equifax"), and TransUnion LLC ("TransUnion") (collectively referred to as "Defendants").1 (ECF No. 23.)Plaintiff alleges the following causes of actions against BoA: (1) violations to the Fair Credit Reporting Act 15 U.S.C § 1681s-2(b); (2) violations to the California Consumer Credit Reporting Agencies Act; (3) violations to the California Rosenthal Act; (4) violations to the California Consumers Legal Remedies Act; (5) violations to the California Business and Professions Code § 17200; (6) Defamation; and (7) Conversion. Id. Plaintiff alleges that Equifax, Experian and TransUnion violated: (1) the Fair Credit Reporting Act 15 U.S.C. § 1681e(b); (2) the Fair Credit Reporting Act 15 U.S.C. §1681(i); (3) the California Business and Professions Code § 17200; and (4) Defamation. Id. On November 29, 2012, BoA filed a Motion to Dismiss. (ECF No. 25.) On January 3, 2013, TransUnion filed a Motion to Dismiss. (ECF No. 41.) Equifax filed a Motion for Judgment on the Pleadings and joined TransUnion's Motion to Dismiss on January 24, 2013. (ECF No. 48.) On January 31, 2013, Experian filed a Motion to Join TransUnion's Motion to Dismiss. (ECF No. 53.) For the reasons discussed below, BoA's Motion is GRANTED in part and DENIED in part. (ECF No. 25.) For the reasons discussed below, TransUnion's, Equifax's, and Experian's Motions are GRANTED. (ECF Nos. 41, 48 and 53.)
BACKGROUND2
In May 2004, Plaintiff refinanced her home loan mortgage through Countrywide. Plaintiff's monthly payments were due the first of each month. The refinancing terms stated that Countrywide would assess late charges against Plaintiff if her full payment was not received by the end of the fifteenth calendar day after the first day of the month. Until July 2007, Plaintiff paid $910.18 monthly, but after July 2007 her payment fluctuated. In July 2009, Plaintiff's payment was set at $1058.49. Later, BoA took over the loan from Countrywide.
In September 2009, Plaintiff learned that her monthly payment would increase to $1366.89 in October 2009. On September 30, 2009, Plaintiff called BoA and spoke with "Vlad," a BoA employee. Plaintiff told Vlad that she would be unable to make the higher mortgage payment. During their September 2009 conversation, Vlad told Plaintiff that she might qualify for a loan modification and that she should make an $800.56 payment in November 2009. Thus, in November 2009 Plaintiff sent BoA a check for $800.56.
Meanwhile, in October 2009, Plaintiff applied for a loan modification though the government-sponsored Home Affordable Modification Program ("HAMP"). In response to her application, BoA wrote Plaintiff and told her to stop making her existing mortgage payment of $808.52 and instead to pay $675.87 starting December 4, 2009. Plaintiff submitted her $675.87 payment for December, and BoA posted it on December 11, 2009.
On December 29, 2009, Plaintiff signed the HAMP Trial Period Plan and agreed to pay BoA $675.87 in January 2010, February 2010 and March 2010. The payment coupons that accompanied the loan stated that Plaintiff's payment would be considered on time if the payment was received no later than the fifteenth day after the first of each month. Plaintiff made her January 2010, February 2010 and March 2010 payments on time. BoA did not contact Plaintiff about her April 2010 payment. As a precautionary measure, Plaintiff paid BoA $675.87, which BoA posted to her account on March 29, 2010.
On April 1, 2010, Plaintiff received a letter from BoA informing her that BoA approved Plaintiff for a permanent loan modification, that the new monthly payment was set at $790.10, and that she should not make her April 2010 payment. BoA and Plaintiff finalized the loan modification on May 28, 2010. Plaintiff called BoA and again spoke with Vlad about the loan modification. Plaintiff informed Vlad that she made her April 2010 payment before receiving BoA's instructions not to make the payment. Vlad explained that BoA would put her April 2010 payment towards Plaintiff's May 2010 payment.Vlad directed Plaintiff to pay the difference between the old payment amount ($675.87) and the new amount ($790.10) to satisfy her May 2010 obligations. Plaintiff mailed the difference ($114.23), which BoA posted on May 3, 2010.
After May 2010, Plaintiff's monthly mortgage amount changed each month. Each month, Plaintiff waited for BoA to inform her of the amount she owed. After receiving the amount, Plaintiff mailed the payment before the fifteenth of each month. BoA posted Plaintiff's June 2010 - September 2011 payments before the fifteenth of each month.
In September 2011, Plaintiff put an offer on a house and it was accepted pending financing. At that time, Plaintiff discovered that BoA was reporting her mortgage payments as late, specifically, that it reported her November 2009, December 2009, January 2010, February 2010, March 2010, May 2010, September 2010 and June 2011 payments as late. BoA's reporting surprised Plaintiff because BoA never charged Plaintiff a late fee or notified Plaintiff that she was late. In April 2010, Plaintiff received a "pay for performance" credit because her payments had been so timely.
In September 2011, Plaintiff wrote BoA and requested that it correct the information it provided Experian, Equifax and TransUnion about her late payment history. Plaintiff also contacted Experian, Equifax and TransUnion about correcting the erroneous information. Experian, Equifax and TransUnion investigated the dispute and forwarded the information they received from Plaintiff to BoA along with a Consumer Dispute Verification Form. BoA verified the late payment history. Experian, Equifax and TransUnion informed Plaintiff that they would not change the information on Plaintiff's credit report because BoA verified it as correct.
In October 2011, Plaintiff asked Defendants to reinvestigate her claim. Experian, Equifax and TransUnion sent BoA a new Consumer Dispute Verification Form. Again, BoA verified the late payment history. In November 2011, Equifax, TransUnion and Experian informed Plaintiff that they would not change the untimely payments on her credit report as BoA confirmed its accuracy.
Plaintiff was unable to buy the home she bid on in September 2011 because of the payment history BoA reported to the credit reporting agencies. In January 2012, BoA sent Plaintiff a "Notice of Intent to Accelerate" and informed Plaintiff that she could cure the default if she paid $1,617.04 on or before February 16, 2012. Plaintiff sent BoA a check on January 26, 2012. On or about February 2, 2012, Plaintiff received a letter from BoA stating that BOA had contacted Experian, Equifax and TransUnion and informed the agencies that the November 2009, December 2009, January 2010, February 2010, March 2010 and April 2010 payments were timely.
STANDARD
On a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)3, all allegations of material fact must be accepted as true and construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Rule 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief" in order to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A complaint attacked by a Rule 12(b)(6) motion to dismiss does not require detailed factual allegations. However, "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 (internal citations, brackets and quotations omitted). A court is not required to accept as true a "legal conclusion couched as a factual allegation." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009) (quoting Twombly, 550 U.S. at 555). "Factual allegations must be enough to raise a right to relief above the speculative level."Twombly, 550 U.S. at 555 ().
Furthermore, "Rule 8(a)(2) . . . requires a showing, rather than a blanket assertion, of entitlement to relief." Twombly, 550 U.S. at 556 n.3 (internal citations and quotations omitted). Thus, "[w]ithout some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirements of providing not only 'fair notice' of the nature of the claim, but also 'grounds' on which the claim rests." Id. (citing 5 Charles Alan Wright & Arthur R. Miller, supra, at § 1202). A pleading must contain "only enough facts to state a claim to relief that is plausible on its face." Id. at 570. If the "plaintiffs . . . have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed." Id. However, "[a] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and 'that a recovery is very remote and unlikely.'" Id. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
BANK OF AMERICA
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