Kimball v. Flagstar Bank F.S.B

• Decision Date: 25 July 2012
• Docket Number: Case No.: 12cv0429 AJB (BGS),Doc. No. 10,Doc. No. 4
• Parties: LARRY A. KIMBALL, and KATHIE D. KIMBALL, Plaintiffs, v. FLAGSTAR BANK F.S.B., et al., Defendants.
• Court: U.S. District Court — Southern District of California

LARRY A. KIMBALL, and KATHIE D. KIMBALL, Plaintiffs,

v.FLAGSTAR BANK F.S.B., et al., Defendants.

Case No.: 12cv0429 AJB (BGS)

Doc. No. 4

Doc. No. 10

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

DATED: July 25, 2012

ORDER (1) GRANTING DEFENDANTS' MOTION TO DISMISS

AND (2) DENYING AS MOOT PLAINTIFFS' MOTION FOR LEAVE TO AMEND THE COMPLAINT

Presently before the Court are Defendants' motion to dismiss Plaintiffs' Complaint(Doc. No. 4) and Plaintiffs' motion for leave to amend the Complaint(Doc. No. 10).In accordance with Civil Local Rule 7.1.d.1, the Court finds these motions suitable for determination on the papers and without oral argument.Accordingly, the motion hearing scheduled for August 17, 2012 is hereby vacated.For the reasons set forth below, Defendants' motion to dismiss is GRANTED, and Plaintiffs' motion to amend is DENIED AS MOOT.

I.BACKGROUND

Plaintiffs Larry and Kathie Kimball(collectively "Plaintiffs") are owners of real property in San Diego.(Compl. ¶ 18.)In January 2008, Plaintiffs refinanced an existing loan with a new loan in the amount of $350,000.(Id.¶ 19.)The note on the property is secured by a Deed of Trust recorded on January 10, 2008.The Deed of Trust identifies DefendantFlagstar Bank, F.S.B.("Flagstar") as thelender, Joan H. Anderson as the trustee, and Mortgage Electronic Registration Systems, Inc.("MERS") as the beneficiary.(Req. for Judicial Notice ("RJN") Ex.A.)¹

After the value of Plaintiffs' residence considerably dropped, Plaintiffs"discovered that their loan had numerous violations of the Federal Truth in Lending Act ("TILA") and Federal Reserve Regulation Z, and determined that many of the disclosures did not comply with California and Federal law[,]" which spurred the instant lawsuit.(Compl. ¶¶ 20, 21.)In support of their TILA violation, Plaintiffs identify a myriad of defects in the loan documents.(Seeid. at ¶¶ 23(I)-(X).)Although Plaintiffs acknowledge that they received a copy, Plaintiffs allege that they failed to receive the requisite two copies of the Notice of Right to Cancel.They also claim that the Notice of Right to Cancel was defective as to the date the rescission period expired.(Id.at ¶¶ 23(I)-(II).)Plaintiffs further contend that the unsigned Truth in Lending Disclosure Statement incorrectly recites the Amount Financed and Finance Charges.(Id. at ¶¶ 23(IV)-(V).)Finally, Plaintiffs contend that although the Yield Spread Premium is stated in the Final Settlement Statement, Defendants allegedly failed to disclose information on the Estimated Closing Statement.(Id.at ¶ 23(IV);see also RJN Ex. D.)

Plaintiffs filed this action on February 17, 2012, seeking rescission of the loan and statutory damages.The Complaint sets forth ten causes of action: (1) intentional misrepresentation, (2) breach of the covenant of good faith and fair dealing, (3) declaratory relief, (4) quiet title, (5) rescission and damages under TILA, (6) California Unfair Business Practices, (7) fraud, (8) violation of the Home Affordable Modification Program ("HAMP") under the Emergency Economic Stabilization Act of 2008, (9) accounting, and (10) cancellation of instrument.

Defendants filed the instant motion to dismiss on March 16, 2012.Plaintiffs filed an Opposition on April 20, 2012, and Defendants filed a Reply on May 4, 2012.

II.LEGAL STANDARD

A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the pleadings and allows a court to dismiss a complaint upon a finding that the plaintiff has failed to state a claim upon which relief may be granted.SeeNavarro v. Block, 250 F.3d 729, 732(9th Cir.2001).The court only reviews the contents of the complaint, accepting all factual allegations as true, and drawing all reasonable inferences in favor of the nonmoving party. al-Kidd v. Ashcroft, 580 F.3d 949, 956(9th Cir.2009)(citations omitted).To avoid a Rule 12(b)(6) dismissal, a complaint need not contain detailed factual allegations, rather, it must plead "enough facts to state a claim to relief that is plausible on its face."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."Ashcroft v. Iqbal, 556 U.S. 662, 678(2009).

III.DISCUSSION

Defendants argue that all of Plaintiffs' causes of action should be dismissed for failure to state a claim under Rule 12(b)(6).The causes of action are addressed in turn.

A.Intentional Misrepresentation and Fraud

In their first cause of action for intentional misrepresentation, Plaintiffs allege that Defendants concealed or suppressed material facts, including Plaintiffs' right to cancel, the accuracy of the finance charges, and the Yield Spread Premium charges.(Compl. ¶ 27.)Plaintiffs also allege that Defendants failed to assess Plaintiffs' ability to repay the loan and put Plaintiffs in a loan where there was a high probability of default.(Id.)Plaintiffs' seventh cause of action for fraud alleges that Defendants failed to "accurately and honestly disclose the material terms of the loan to the Plaintiffs and to make certain Plaintiffs understood the terms of the loan that they were entering into."(Id.at ¶ 67.)Plaintiffs claim that they relied upon such representations and omissions and were induced into obtaining the subject loan and modification on the Property.(Id.at ¶ 71.)Defendants move to dismiss Plaintiffs' fraud-based claims for failure to satisfy Rule 9(b)'s heightened pleading requirements.Additionally, Defendants assert that Plaintiffs' fraud-based causes of action are time-barred and therefore must be dismissed.

1.Particularity Pleading Standard

Under California law, the elements of common law fraud are "misrepresentation, knowledge of its falsity, intent to defraud, justifiable reliance, and resulting damages."Gil v. Bank of Am., Nat'l Ass'n, 138 Cal.App.4th 1371, 1381(Cal. Ct. App.2006).Under Federal Rule of Civil Procedure 9(b), a party alleging fraud or intentional misrepresentation must satisfy a heightened pleading standard by stating with particularity the circumstances constituting fraud.Fed. R. Civ. P. 9(b).Specifically, "[a]verments of fraud must be accompanied by 'the who, what, when, where, and how' of the misconduct charged."Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106(9th Cir.2003)(quotation omitted).Further, "a plaintiff must set forth more than the neutral facts necessary to identify the transaction.The plaintiff must set forth what is false or misleading about a statement, and why it is false."Id.(quotingIn re Glenfed, Inc. Securities Litigation, 42 F.3d 1541, 1548(9th Cir.1994), superceded by statute on other grounds).A plaintiff must also differentiate his allegations when suing more than one defendant, especially in the context of fraud claims.Swartz v. KPMG LLP, 476 F.3d 756, 765-66(9th Cir.2007).

Defendants argue that Plaintiffs"do not and cannot identify the individual at Flagstar they spoke with during the loan transaction that is responsible for the alleged misrepresentations."(Defs.' Mot.at 5.)Defendants further assert that the Complaint lacks specificity as to the fundamentals of when and where these misrepresentations occurred, or how Defendants prevented Plaintiffs from discovering them.(Id.)In their opposition, Plaintiffs assert that they cannot be expected to have personal knowledge of the relevant facts and therefore a relaxed pleading requirement should apply.(Pls.' Opp'nat 7.)The Court disagrees.Plaintiffs contend that they cannot identify when and where these alleged misrepresentations occurred, or what individual at Flagstar made such misrepresentations.(Seeid. at 8.)The conclusory allegations of fraud against Defendants are insufficient to meet Rule 9(b)'s strict pleading standards.

Furthermore, Defendants assert that Plaintiffs' allegation that Flagstar concealed or suppressed facts by non-disclosure of provided material documents is "not plausible" and contrary to the signedrecords.²(Defs.' Mot.at 5.)Defendants specifically contend that the documents attached to the Request for Judicial Notice confirm that Plaintiffs received all material disclosures.Moreover, even if Defendants failed to disclose material facts known only to Defendants and not to Plaintiffs, Defendants argue that because there is no fiduciary relationship between the parties, failure to disclose such material facts is not actionable fraud.SeeKovich v. Paseo Del Mar Homeowners' Ass'n, 41 Cal. App. 4th 863, 866(Cal. Ct. App.1996)("The general rule for liability for nondisclosure is that even if material facts are known to one party and not the other, failure to disclose those facts is not actionable fraud unless there is some fiduciary or confidential relationship giving rise to a duty to disclose.");see alsoNymark v. Heart Fed. Sav. & Loan Ass'n, 231 Cal. App. 3d 1089, 1093(Cal. Ct. App.1991)(stating that there is no fiduciary relationship between a lender and a borrower).The Court agrees, and thus Plaintiffs' bare allegations of fraud and intentional misrepresentations are insufficient to state a cognizable claim under the standards set forth above.

2.Limitations Period

Defendants additionally argue that Plaintiffs' fraud-based claims are barred by the three-year statute of limitation under California Code of Civil Procedure § 338(d), because they arise from an alleged wrongdoing that occurred at the time of the loan's origination on January 10, 2008.Plaintiffs did not file the Complaint until February 17, 2012, more than four years later.

Plaintiffs attempt to establish that their claims should not be barred by the applicable statute of limitations under the doctrine of equitable tolling.Plaintiffs, however, have failed to establish that equitable tolling should apply in this case.A party asserting equitable tolling must...