Griffin v. Green Tree Servicing, LLC

• Decision Date: 09 April 2015
• Docket Number: CASE NO. CV 14–09408 MMM (VBKx)
• Citation: Griffin v. Green Tree Servicing, LLC, 166 F.Supp.3d 1030 (C.D. Cal. 2015)
• Parties: Elizabeth Joan Griffin, Plaintiff, v. Green Tree Servicing, LLC, a Delaware limited liability company; Northwest Trustee Services, Inc., a Washington corporation; Bank of America, National Association, a National Banking Association; Bank of America Corporation, a Delaware corporation; and Does 1-100, inclusive, Defendants.
• Court: U.S. District Court — Central District of California

166 F.Supp.3d 1030

Elizabeth Joan Griffin, Plaintiff,

v.Green Tree Servicing, LLC, a Delaware limited liability company; Northwest Trustee Services, Inc., a Washington corporation; Bank of America, National Association, a National Banking Association; Bank of America Corporation, a Delaware corporation; and Does 1-100, inclusive, Defendants.

CASE NO. CV 14–09408 MMM (VBKx)

United States District Court, C.D. California.

Signed April 9, 2015

Mark T. Young, Donahoe and Young LLP, Valencia, CA, Bernard R. Schwam, Bernard R. Schwam Law Offices, Encino, CA, Joseph Richard Manning, Jr., Law Offices of Joseph R. Manning Jr. APC, Newport Beach, CA, for Plaintiff.

Yaron Shaham, Severson and Werson, Irvine, CA, Adam F. Summerfield, McGuireWoods LLP, Los Angeles, CA, for Defendants.

ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS

MARGARET M. MORROW, UNITED STATES DISTRICT JUDGE

On October 31, 2014, Elizabeth Joan Griffin filed this action against Green Tree Servicing, LLC(“Green Tree”), Northwest TrusteeServices, Inc.(“Northwest”), Bank of America, N.A. (“BANA”), Bank of America Corporation(“BAC”)(collectively, “BofA”), and certain fictitious defendants in the Los Angeles Superior Court.¹The complaint alleges causes of action for promissory estoppel; breach of the implied covenant of good faith and fair dealing; negligence; violation of the California Consumers Legal Remedies Act(“CLRA”), California Civil Code § 1750, et seq . ; specific performance; fraud; negligent misrepresentation; and declaratory relief.²

On December 16, 2014, Green Tree filed a motion to dismiss.³On January 8, 2015, BANA and BAC filed a motion to dismiss.⁴Griffin opposes both motions.⁵Pursuant to Rule 78 of the Federal Rules of Civil Procedure and Local Rule 7–15, the court finds this matter appropriate for decision without oral argument; the hearing calendared for April 13, 2015, is therefore vacated, and the matter taken off calendar.

I.FACTUAL BACKGROUND

Griffin alleges that she is the owner of certain real property located at 19652 Chadway Street, Canyon Country, California 91351.⁶Griffin purchased the property in 1990.She asserts that in 2007, she owed $152,165.35 on her mortgage on the property, and that her monthly payment was $895.95.⁷In mid–2007, “Countrywide Home Loans” purportedly contacted her, and encouraged her to refinance the property because “this would undoubtedly be the last time she would be able to take advantage of the low interest and high interest loan rates available.”⁸Griffin decided to apply for a new loan, and her application was approved.⁹On September 12, 2007, Griffin obtained a mortgage, secured by a deed of trust on the property, in the amount of $384,000 from Countrywide Bank, FSB.¹⁰

After refinancing, Griffin experienced economic hardship; her salary was reduced by $2.00 per hour, the value of her stock portfolio was significantly affected by market crashes, and her lines of credit were canceled.¹¹Griffin was thus forced to deplete her savings to make her mortgage payments.¹²

In August 2009, Griffin submitted a loan modification application to BAC, Countrywide's successor in interest.¹³She contends that on December 5, 2009, a BANA representative named Marion told her that her loan modification application had been approved.¹⁴Under the loan modification, instead of a monthly payment of $3,074.38, Griffin's new payments were to be $1,841.47 per month.¹⁵The agreement allegedly provided that, if Griffin made “three (3) payments of $1,841.47 on December 10, 2009, January 10 and February 10, 2010,” her monthly mortgage payment would be permanently modified and become $1,841.47.¹⁶Griffin contends that she was given confirmation number 9467603,¹⁷ and that Marion “represented that she would send [Griffin] the modification agreement no later than December 29, 2009.”¹⁸

Griffin asserts she never received the modification agreement,¹⁹ despite the fact that she made the three trial payments.²⁰

In March 2010, Griffin contacted BAC.²¹Only then did she learn that the payments she had been making—per her verbal agreement with Marion—were considered “partial payments.”²²Griffin asserts she was then told that the payments were “prohibited under the terms of her mortgage[ ] and would not be accepted.”²³She also contends she was told that “BAC considered her to be delinquent, and that collection activities were going to [b]e commenced.”²⁴Griffin alleges that the three payments she made were neither credited to her account nor refunded.²⁵

More than one year later, on June 7, 2011, Griffin purportedly received a notice of trustee's sale from ReconTrust Company as trustee for BAC,²⁶ stating that the property would be sold at a trustee's sale on July 6, 2011.²⁷Before receiving the June 7, 2011 notice, Griffin allegedly had not received a notice of default, as required by California Civil Code § 2924.²⁸Griffin also contends that BAC did not attempt to contact her to work out a foreclosure prevention alternative in violation of California Civil Code § 2923.5.Finally, she asserts that the notice of trustee's sale failed to reflect the three payments she made in December 2009 and January and February 2010.²⁹

On May 11, 2013, BAC purportedly informed Griffin that servicing of her mortgage loan would be transferred to Green Tree effective June 1, 2013.³⁰As the servicer, Green Tree was responsible for “billing, payment, processing and customer support” on the loan.³¹Before receiving this notice, Griffin asserts that she did not know Green Tree had assumed servicing responsibility for the loan; in fact, she believed BAC was still considering her loan modification request, which it was allegedly “required to do pursuant to new Federal laws and regulations.”³²Griffin also contends she entered into a contract with BAC, pursuant to which she agreed to dismiss an earlier lawsuit breach of contract and violation of other state laws in exchange for BAC's rescission of the foreclosure sale and continued consideration of her loan modification application.³³

In June 2013, Griffin allegedly received a telephone call from a woman who purportedly worked for Green Tree, and asked to discuss Griffin's loan.³⁴Griffin informed the individual that she had retained counsel and asked that Green Tree contact him.³⁵When the employee refused to do so, Griffin asked to speak with a supervisor; Griffin repeated her request, and the supervisor purportedly hung up on her.³⁶Griffin had no further communication with Green Tree until more than one year later, on July 14, 2014, when she received a notice of default and election to sell under deed of trust,³⁷ which stated that Green Tree would foreclose on Griffin's property unless she paid the full balance of the loan—$533,541.50.³⁸Griffin contends the notice violates California Civil Code § 2923.5.³⁹

Griffin asserts that BAC has attempted since 2011 to offer her a permanent loan modification; she contends that “part of the dispute with Green Tree is that certain personnel at Green Tree contend that [she] does not have a pending loan modification.”⁴⁰

II.DISCUSSION

A.Defendants' Requests for Judicial Notice

Because Rule 12(b)(6) review is confined to the complaint, the court typically does not consider material outside the pleadings (e.g., facts presented in briefs, affidavits, or discovery materials) when deciding such a motion.In re American Continental Corp./Lincoln Sav. & Loan Securities Litig.,102 F.3d 1524, 1537(9th Cir.1996).It may, however, properly consider exhibits attached to the complaint and documents whose contents are alleged in the complaint but not attached, if their authenticity is not questioned.Lee v. City of Los Angeles,250 F.3d 668, 688(9th Cir.2001).

In addition, the court can consider matters that are proper subjects of judicial notice under Rule 201 of the Federal Rules of Evidence.Id. at 688–89;Branch v. Tunnell,14 F.3d 449, 454(9th Cir.1994), overruled on other grounds byGalbraith v. County of Santa Clara,307 F.3d 1119(9th Cir.2002);Hal Roach Studios, Inc. v. Richard Feiner and Co., Inc ., 896 F.2d 1542, 1555 n. 19(9th Cir.1990);see alsoTellabs, Inc. v. Makor Issues & Rights, Ltd ., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179(2007)(“[C]ourts must consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice”).⁴¹The court is “not required to accept as true conclusory allegations which are contradicted by documents referred to in the complaint” or proper subjects of judicial notice.Steckman v. Hart Brewing Inc ., 143 F.3d 1293, 1295(9th Cir.1998);see alsoSprewell v. Golden State Warriors,266 F.3d 979, 988(9th Cir.2001)(“The court need not, however, accept as true allegations that contradict matters properly subject to judicial notice or by exhibit”).

1.Green Tree's Request for Judicial Notice

Green Tree asks that the court take judicial notice of Exhibits A through G to its request for judicial notice, all of which are documents that concern the chain of title on Griffin's mortgage.The documents include an October 3, 2007 deed of trust;⁴² two assignments of deed of trust dated June 8, 2011 and July 5, 2011; a corrective assignment of deed of trust dated June 10, 2014; a notice of substitution of trustee dated June 26, 2014; a notice of default dated July 14, 2014; and a notice of trustee's sale dated October 17, 2014.⁴³All of these documents were recorded in the Los Angeles County Recorders Office, and each has a document number and filing stamp.⁴⁴The documents bear directly on Griffin's allegations and claims.Other courts have taken judicial notice of such documents as public filings.SeeVelazquez v. GMAC Mortgage Corp.,605 F.Supp.2d 1049, 1057–58(C.D.Cal.2008)(taking judicial notice of documents recorded by the Los Angeles...