Jordan v. Bank of Am., N.A., Case No. 2:18-cv-02717-KJM-AC

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
• Writing for the Court: Kimberly J. Mueller, UNITED STATES DISTRICT JUDGE
• Citation: 396 F.Supp.3d 922
• Decision Date: 03 July 2019
• Docket Number: Case No. 2:18-cv-02717-KJM-AC
• Parties: Jessica H. JORDAN, Plaintiff, v. BANK OF AMERICA, N.A., et al., Defendants.

396 F.Supp.3d 922

Jessica H. JORDAN, Plaintiff,
v.
BANK OF AMERICA, N.A., et al., Defendants.

Case No. 2:18-cv-02717-KJM-AC

United States District Court, E.D. California.

Signed July 3, 2019

396 F.Supp.3d 925

Nicole Cherones, Smart Law Offices, Sacramento, CA, David Len Smart, Smart Law Offices, Newport Beach, CA, for Plaintiff.

Alison Valerie Lippa, McGuireWoods LLP, Le T. Duong, Reed Smith LLP, San Francisco, CA, for Defendants.

ORDER

Kimberly J. Mueller, UNITED STATES DISTRICT JUDGE

Defendant Bank of America, N.A. moves to dismiss each of plaintiff Jessica Jordan's claims against it. For the following reasons, the court GRANTS the motion.

I. FACTUAL ALLEGATIONS

On July 12, 2007, plaintiff Jessica Jordan obtained a $608,000 loan for property located at 9711 Mindy Lane, Wilton, California 95693. Compl., ECF No. 1-1, ¶¶ 1, 8; Req. Jud. Not. ("RJN"), ECF No. 7-1, Ex. 1. The loan was secured by a deed of trust recorded on July 26, 2007, and that deed of trust identifies Countrywide Home Loans, Inc. as the lender, ReconTrust Company, N.A. as the trustee, and Mortgage Electronic Registration Systems, Inc. ("MERS") as the beneficiary and "a separate corporation that is acting solely as a nominee for [Countrywide] and [Countrywide]'s successors and assigns." Compl. ¶ 8; Ex. 1 at 8-9.¹

On June 6, 2011, Bank of America recorded MERS' assignment of the deed of trust and promissory note to BAC Home

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Loans Servicing LP, which later merged into Bank of America. Compl. ¶ 9; RJN Ex. 3. Jordan alleges there was no such assignment and the recorded assignment's representations are "false." Compl. ¶ 10. Specifically, Jordan contends that MERS lacked the necessary "interest in the promissory note to be able to assign it" because "MERS was named on the deed in a nominee capacity for Countrywide" but "not mentioned in the promissory note" and "[a]n assignment of a deed alone without the corresponding assignment of the actual note is a nullity." Id. Further, Jordan contends that "[e]ven if MERS was named on a promissory note ‘in a nominee capacity for Countrywide...’ and not merely on the deed of trust as it is here, MERS could not assign the note in 2012, as it could not act as nominee for Countrywide ... years after Countrywide...ceased to exist." Id. ¶ 11.

On July 5, 2012, Bank of America recorded another assignment, assigning the deed of trust and note to U.S. Bank, National Association, as trustee for the holders of the Deutsche Alt-A Securities Mortgage Loan Trust, Series 2007-2 Mortgage Pass Through Certificates. Id. ¶ 13; RJN Ex. 4. This, too, was false, Jordan alleges, because "Bank of America had no such interest in the promissory note to be able to assign it to any other person or entity." Compl. ¶ 14. Further, Deutsche Alt-A Securities Mortgage Loan Trust, Series 2007-2 Mortgage Pass Through Certificates stopped accepting new loans as of August 31, 2007, and the purported assignment would have violated the trust's pooling and servicing agreement's "particular cut-off date for the mortgage loans included in the trust,...subject[ing] it to penalties," while also violating "the enumerated specific chain of possession the promissory note was to take among the parties to the trust agreement...." Id. ¶¶ 16-20.

On September 26, 2012, Bank of America recorded another assignment, again purporting to assign the deed of trust and note to U.S. Bank, National Association, as trustee for the holders of the Deutsche Alt-A Securities Mortgage Loan Trust, Series 2007-2 Mortgage Pass Through Certificates. Id. ¶ 15; RJN Ex. 5. Jordan alleges this purported assignment was also false. Compl. ¶ 16. Not only did Bank of America lack any interest in the promissory note and thus lack the ability to assign that note, the assignment includes a notarization stating that a Bank of America representative executed the assignment in Los Angeles County while the document states it was executed in Ventura County. Id. Also on September 26, 2012, ReconTrust recorded a notice of default and election to sell under deed of trust, indicating Jordan was $112,628.72 in arrears. RJN Ex. 6.

Jordan accepted a permanent modification offer, which she signed on May 13, 2013, and which was recorded on August 23, 2013. Id. Ex. 8. ReconTrust recorded a notice of rescission of its notice of default and election to sell on August 29, 2013. Id. Ex. 7.

On June 26, 2015, Nationstar Mortgage LLC ("Nationstar")² recorded a substitution of trustee, under which "Deutsche Alt-A Securities Mortgage Loan Trust, Series 2007-2 Mortgage Pass Through Certificates, U.S. Bank, National Association, as Trustee Nationstar Mortgage LLC, as Attorney-in-fact [sic],’ " substituted Barrett, Daffin, Frappier, Treder & Weiss LLP ("Barrett, Daffin") as trustee under the

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deed of trust. Compl. ¶ 21; RJN Ex. 9. Nationstar recorded another such substitution on December 6, 2016, as "attorney-in-fact" for Deutsche Alt-A Securities Mortgage Loan Trust, Series 2007-2 Mortgage Pass Through Certificates, U.S. Bank, National Association, as Trustee, again substituting Barrett, Daffin as trustee. Compl. ¶ 22; RJN Ex. 10.

On December 8, 2016, Nationstar recorded a notice of default and election to sell, stating Jordan was $27,703.83 in arrears. Compl. ¶ 23; RJN Ex. 11. The accompanying declaration stated that Nationstar satisfied the California Homeowner Bill of Rights ("HBOR") due diligence requirements by attempting to contact Jordan. Compl. ¶ 23; RJN Ex. 11; see Cal. Civ. Code § 2923.5. Jordan disputes that Nationstar provided her with the information required under HBOR. Compl. ¶ 24. Barrett, Daffin recorded a notice of rescission of the notice of default and election to sell on May 18, 2017. RJN Ex. 12.

On April 2, 2018, Nationstar recorded another notice of default and election to sell, stating Jordan was $31,550.83 in arrears. Compl. ¶ 25; RJN Ex. 13. This notice again stated that Nationstar satisfied HBOR's due diligence requirements, which Jordan again disputes. Compl. ¶¶ 25-26. On August 8, 2018, Jordan found a notice of trustee's sale taped to her home's front door, which stated a trustee's sale was scheduled for September 7, 2018. Id. ¶ 27; RJN Ex. 14 (notice of trustee's sale recorded August 3, 2018). After filing this suit in state court, on September 6, 2018, Jordan obtained a temporary restraining order on the trustee's sale. ECF No. 1-1 at 55-57 (granting Jordan's ex parte request for a temporary restraining order "solely on the ground that a showing ha[d] been made, unrebutted, that [defendants] have not complied with [ section] 2923.5"). Before the state court heard Jordan's motion for a preliminary injunction, Nationstar removed the action to this court. Removal Not., ECF No. 1.

Jordan's complaint includes the following six claims: (1) declaratory relief, (2) cancellation of instruments, (3) slander of title, (4) violation of California Civil Code section 2923.5 (formerly § 2923.55), (5) violation of the California Rosenthal Fair Debt Collection Practices Act, California Civil Code sections 1788, et seq., (6) negligence and negligence per se, and (7) violation of California Business & Professions Code section 17200 ("UCL"). Jordan brings her fourth claim against Nationstar alone. Jordan brings the balance of her claims against both Nationstar and Bank of America. Bank of America now moves to dismiss each of Jordan's six claims against it. Mot., ECF No. 7. Jordan opposes, Opp'n, ECF No. 10, and Bank of America has replied, Reply, ECF No. 13. The court submitted the motion after oral argument and resolves it here.

II. LEGAL STANDARD

Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may move to dismiss a complaint for "failure to state a claim upon which relief can be granted." A court may dismiss "based on the lack of cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't , 901 F.2d 696, 699 (9th Cir. 1990).

Although a complaint need contain only "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), in order to survive a motion to dismiss this short and plain statement "must contain sufficient factual matter ... to ‘state a claim to relief that is plausible on its

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face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929...