Janovich v. Wells Fargo Bank
| Docket Number | 2:21-cv-00402-TLN-KJN |
| Decision Date | 24 March 2022 |
| Parties | TIMOTHY P. JANOVICH, Plaintiff. v. WELLS FARGO BANK, N.A. Defendant. |
| Court | U.S. District Court — Eastern District of California |
This matter is before the Court on Defendant Wells Fargo Bank N.A.'s (“Defendant”) Motion to Dismiss. (ECF No. 5.) Plaintiff Timothy P. Janovich (“Plaintiff”) opposed the motion. (ECF No. 6.) Defendant replied. (ECF No. 10.) For the reasons set forth below, the Court GRANTS in part and DENIES in part Defendant's motion. (ECF No. 5.)
Plaintiff is a borrower who seeks to obtain damages from Defendant after the alleged wrongful foreclosure of his property located at 2536-2532 Michelle Drive, Sacramento, California (the “Subject Property”). (ECF No. 1 at 17.) In 2006, Plaintiff entered into a loan with World Savings Bank FSB in the amount of $225, 000 (the “Senior Loan”), collateralized by the Subject Property.[2] (Id. at 18.) Plaintiff also entered into an “Equity Line of Credit” in the amount of $25, 000 with World Savings Bank FSB (the “Junior Loan, ” referred to collectively with the Senior Loan as the “Subject Loan”). (Id.) The Subject Loan was subsequently assigned to Wachovia. (Id.) Defendant then purchased Wachovia and held the Note and the Subject Loan. (Id.) Plaintiff utilized the Subject Property for income as a transitional home for those who recently left mental institutions. (Id. at 19.) In 2011, Plaintiff filed a Voluntary Petition under Chapter 13 of Title 11 of the United States Code with the United States Bankruptcy Court for the Eastern District of California (the “2011 Bankruptcy Case”). (Id.) Mikalah Liviakis (“Mr. Liviakis”) and C. Anthony Hughes (“Mr. Hughes”) represented Plaintiff in the 2011 Bankruptcy Case. (Id. at 20-21.)
Following the 2011 Bankruptcy Case, Plaintiff scheduled payments to Defendant for $1, 174.31 a month for 132 months or 11 years until Plaintiff fully satisfied the claim. (Id. at 22.) Plaintiff hired Fiduciary Management Technologies, Inc. (“FMT”) to make payments on the Subject Loan, and FMT assigned Lisa M. Sackett, AVP (“Ms. Sackett”) to manage Plaintiff's account. (Id.) Thereafter Plaintiff's counsel closed the 2011 Bankruptcy Case because Plaintiff was able to make payments on the Subject Loan. (Id. at 23.) Thus, Mr. Liviakis and Mr. Hughes no longer represented Plaintiff. (Id. at 24.)
On July 5, 2012, Ms. Sackett, on Plaintiff's behalf, began payments on the Subject Loan. (Id. at 24.) Between 2012 and 2018, Defendant increased the amount of the monthly payments required on the Subject Loan without notifying Plaintiff. (Id. at 25.) During that time, Defendant failed to regularly cash checks on multiple occasions, making it impossible for Defendant to render true accountings of amounts paid, arrears, and late fees. (Id. at 25-26.) Defendant did not notify Plaintiff of existing arrears or late payments. (Id. at 26.) On February 1, 2018, Defendant recorded a Notice of Default reflecting that Plaintiff owed $14, 254.54 as of January 30, 2018, although the real amount to cure the loan was less than $4, 000. (Id. at 27-28.) Defendant initially only sent correspondence to Mr. Hughes, who had represented Plaintiff in the 2011 Bankruptcy Case, despite knowing the case had closed. (Id. at 28.)
On February 9, 2018, Defendant sent Plaintiff the Notice of Default. (Id.) If Plaintiff had known the real amount was $4, 000, he could have easily paid. (Id.) To resolve this issue, Plaintiff sought out his former bankruptcy attorney Mr. Hughes. (Id. at 29.) However, Mr. Hughes had sold his practice to Gabriel Liberman (“Mr. Liberman”). (Id.) Mr. Liberman helped Plaintiff attempt to obtain an accounting of payments made to Defendant to no avail. (Id.) In March 2018, Plaintiff repeatedly requested an accounting, yet Defendant failed to meaningfully respond. (Id. at 29-30.) On or around March 29, 2018, Plaintiff faxed in a Mortgage Assistance Application. (Id. at 30.) On April 3, 2018, in response to the application, Defendant sent a request for documents to Mr. Hughes, even though he had not represented Plaintiff for six years. (Id.) Mr. Liberman informed Plaintiff of the correspondence and Plaintiff promptly submitted the requested documents. (Id.) However, on April 18, 2018, Defendant notified Plaintiff it was still waiting for further documents, including “the 4506T, Real Property Schedule, Rental Agreements, [one] month Rental Income, and Tax Returns.” (Id. at 31.) Plaintiff notified Defendant that he could not submit the tax returns for 2016 and 2017 because they had not yet been filed. (Id.) Defendant's employee told Plaintiff the tax returns he had previously submitted were sufficient to conduct a review for a foreclosure alternative, including modification. (Id.)
On April 27, 2018, Plaintiff again requested an audit of his account. (Id.) Defendant's employee emailed Plaintiff on May 3, 2018, the day documents were due, requesting further documents without identifying which documents were needed and stated he could not perform an audit in his position. (Id.) The email did not deny Plaintiff's application and stated “[i]f you're still interested in the modification, please feel free to contact our office regarding any questions you have pertaining to your mortgage assistance application.” (Id.) Less than 12 hours after this email, Defendant recorded a Notice of Trustee's Sale. (Id. at 31-32.) Defendant notified Plaintiff his loan modification was denied only after receiving Notice of the Trustee's Sale. (Id. at 32.) Plaintiff then tried twice to file a Voluntary Petition under Chapter 13 of the Bankruptcy Code on June 7, 2018 and August 23, 2019, but the court dismissed both cases because it was unable to confirm a workable plan and Plaintiff did not file the necessary paperwork. (Id.) On October 7, 2019, Defendant sold the Subject Property at a Trustee's Sale. (Id.)
Plaintiff filed the instant action with the Sacramento County Superior Court on December 16, 2020, which alleges: (1) unlawful business practices in violation of Cal. Bus. & Prof. Code § 17200 (California's Unfair Competition Law, or the “UCL”);[3] (2) wrongful foreclosure; (3) negligent interference with prospective economic advantage; and (4) a violation of the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2605. (ECF No. 1 at 16-54.) Defendant filed a notice of removal to this Court on March 5, 2021. (See id.) Defendant filed the instant motion to dismiss on March 12, 2021. (ECF No. 5.) Plaintiff filed an opposition on April 1, 2021. (ECF No. 6.) Defendant filed a reply on April 8, 2021. (ECF No. 10.)
A motion to dismiss for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure (“Rule”) 12(b)(6) tests the legal sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Rule 8(a) requires that a pleading contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a); see also Ashcroft v. Iqbal, 556 U.S. 662, 677-678 (2009). Under notice pleading in federal court, the complaint must “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007) (internal citation and quotations omitted). “This simplified notice pleading standard relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002).
On a motion to dismiss, the factual allegations of the complaint must be accepted as true. Cruz v. Beto, 405 U.S. 319, 322 (1972). A court must give the plaintiff the benefit of every reasonable inference to be drawn from the “well-pleaded” allegations of the complaint. Retail Clerks Int'l Ass'n v. Schermerhorn, 373 U.S. 746, 753 n.6 (1963). A plaintiff need not allege “‘specific facts' beyond those necessary to state his claim and the grounds showing entitlement to relief.” Twombly, 550 U.S. at 570 (internal citation omitted).
Nevertheless, a court “need not assume the truth of legal conclusions cast in the form of factual allegations.” U.S. ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). While Rule 8(a) does not require detailed factual allegations, “it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678 (). Thus, “[c]onclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss” for failure to state a claim. Adams v. Johnson, 355, F.3d 1179, 1183 (9th Cir. 2004) (citations omitted). Moreover, it is inappropriate to assume the plaintiff “can prove facts that it has not alleged or that the defendants have violated the . . . laws in ways that have not been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).
Ultimately a court may not dismiss a complaint in which the plaintiff has alleged “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “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.” Iqbal, 556 U.S. at 680. While the plausibility requirement is not akin...
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