Robinson v. Bank of Am.

• Decision Date: 21 March 2022
• Docket Number: 21-cv-00110-AJB-DEB
• Court: U.S. District Court — Southern District of California
• Parties: CORY ROBINSON, individually and on behalf of others similarly situated, Plaintiff, v. BANK OF AMERICA, N.A., Defendant.

CORY ROBINSON, individually and on behalf of others similarly situated, Plaintiff, v. BANK OF AMERICA, N.A., Defendant.

No. 21-cv-00110-AJB-DEB

United States District Court, S.D. California

March 21, 2022

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS (DOC. NO. 12)

Hon Anthony J. Battaglia United States District Judge

Before the Court is Defendant Bank of America, N.A.'s (“Defendant” or “BANA”) motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. No. 12-1.) Concurrently with the motion to dismiss Defendant filed a request for judicial notice of five exhibits. (Doc. No. 12-2.) The motion has been fully briefed. (Doc. Nos. 15 & 16.) Pursuant to Civil Local Rule 7.1.d.1, the Court finds the instant matter suitable for determination on the papers and without oral argument. For the reasons set forth below, the Court GRANTS Defendant's motion to dismiss and GRANTS IN PART AND DENIES IN PART Defendant's request to take judicial notice.

I. BACKGROUND^[1]

Defendant Bank of America, N.A., is a national bank headquartered in Charlotte, North Carolina, and is the loan servicer for Plaintiff's mortgage. (First Amended Complaint (“FAC”), Doc. No. 11, ¶¶ 19, 21.) On July 20, 2020, Plaintiff, through counsel, sent Defendant a Notice of Error and Request for Information pursuant to the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2605(e), and Regulation X, 12 C.F.R. §§ 1024.35, 1024.36. (Id. ¶ 22.) The letter included Plaintiff's name, his loan account number, a request for information, and a reason for the request. (Id. ¶ 23.) In the letter, Plaintiff disputed the amount of debt owed and asked for several documents associated with his account, including “[a] copy of any and all recordings of [Plaintiff] or any other person concerning [Plaintiff's] account.” (Id.) In August 2020, Plaintiff's counsel received Defendant's response to the request. (Id. ¶ 24.) However, Defendant's response failed to provide any of the requested information. (Id. ¶ 25.) Rather, Defendant stated: “[w]e're committed to protecting the confidentiality of our customer's information and we require written authorization from the customer before we disclose any information . . . . We're unable to respond to the request and consider this inquiry closed . . . . The customer's signature(s) must be a ‘live' signature, not a digital signature.” (Id. ¶ 26.)

Plaintiff asserts he was not required to provide written authorization under RESPA or Regulation X for his QWRs or RFIs. (Id. ¶ 27.) Plaintiff's counsel, acting as Plaintiff's agent when he requested the information, is expressly permitted to do so under RESPA, 12 U.S.C. § 2605(e). (Id.) Still, on October 19, 2020, Plaintiff sent Defendant an Authorization to Furnish & Release Information to Plaintiff's counsel, as requested by Defendant in its response, and attached a Notice of Error and Request for Information pursuant to 12 U.S.C. § 2605(e) and Regulation X. (Id.) In early November of 2020, Plaintiff's counsel received Defendant's response, again failing to provide any of the requested information, stating:

“[t]he signature must be a ‘live' signature, not a digital signature.” (Id. ¶¶ 29-31.)

On November 23, 2020, Plaintiff again sent Defendant an Authorization to Furnish & Release Information to Plaintiff's counsel, as requested by Defendant in its response, and attached a second Notice of Error and Request for Information pursuant to 12 U.S.C. § 2605(e) and Regulation X. (Id. ¶ 32.) Several weeks later, Plaintiff's counsel received a response from Defendant, again failing to provide any of the requested information and using the same boilerplate language to deny the request, insisting the signature “be a ‘live' signature, not a digital signature.” (Id. ¶¶ 34-36.) Finally, on January 5, 2021, Plaintiff's counsel sent a meet and confer letter to Defendant explaining: “we have provided a valid, signed authorization form on multiple occasions . . . . Pursuant to 12 CFR § 1024.36(d)(ii) Bank of America is required to produce all information available through reasonable business efforts . . . . Therefore, please produce the requested documentation along with all audio recordings no later than January 15, 2021.” (Id. ¶¶ 37-38.) On or about January 20, 2021, Plaintiff's counsel received a response from Defendant, again failing to provide the requested information and reiterating that “[t]he signature must be a ‘live' signature, not a digital signature.” (Id. ¶¶ 39-42.) As of the time of filing this lawsuit, Plaintiff has not received any other documents from Defendant. (Id. ¶ 42.)

According to Plaintiff, Defendant's refusal to provide requested information to borrowers or their agents who submit valid QWRs or RFIs is Defendant's standard business policy. (Id. ¶ 45.) Furthermore, Plaintiff believes Defendant has refused to produce documents and recordings for “possibly hundreds if not thousands of customers that have requested them.” (Id. ¶ 46.) Plaintiff alleges Defendant “systematically denied each of its customer's requests by, among other things, requiring that they provide additional information not required under RESPA or Regulation X.” (Id. ¶ 47.) Plaintiff further alleges Defendant's “uniform responses, requiring a ‘live' signature and failing to provide any of the requested documents and recordings, shows a pattern and practice of noncompliance with RESPA.” (Id. ¶ 49.)

On January 20, 2021, Plaintiff filed the instant action in this court. (Doc. No. 1.) In March 2021, Plaintiff filed the FAC, alleging one claim for violations of RESPA, 12 U.S.C. § 2601, et seq. (Id. ¶¶ 66-78.) By the present motion, Defendant moves to dismiss Plaintiff's FAC for failure to state a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. No. 12-1 at 7-8.)

II. LEGAL STANDARD

A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a plaintiff's complaint. See Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “[A] court may dismiss a complaint as a matter of law for (1) lack of cognizable legal theory or (2) insufficient facts under a cognizable legal claim.” SmileCare Dental Grp. v. Delta Dental Plan of Cal., 88 F.3d 780, 783 (9th Cir. 1996) (citation omitted). However, a complaint will survive a motion to dismiss if it contains “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). In making this determination, a court reviews the contents of the complaint, accepting all factual allegations as true and drawing all reasonable inferences in favor of the nonmoving party. See Cedars-Sinai Med. Ctr. v. Nat'l League of Postmasters of U.S., 497 F.3d 972, 975 (9th Cir. 2007). Notwithstanding this deference, the reviewing court need not accept legal conclusions as true. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). It is also improper for a court to assume “the [plaintiff] can prove facts that [he or she] has not alleged.” Assoc. Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). However, “[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 664. “In sum, for a complaint to survive a motion to dismiss, the non-conclusory factual content, and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quotations and citation omitted).

III. REQUESTS FOR JUDICIAL NOTICE

While the scope of review on a motion to dismiss for failure to state a claim is limited to the complaint, a court may consider evidence on which the complaint necessarily relies if “(1) the complaint refers to the document; (2) the document is central to the plaintiff['s] claim; and (3) no party questions the authenticity of the copy attached to the 12(b)(6) motion.” Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010) (internal quotation marks and citations omitted). Furthermore, Federal Rule of Evidence 201 permits judicial notice of a fact which is “not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Welk v. Beam Suntory Imp. Co., 124 F.Supp.3d 1039, 1041-42 (S.D. Cal. 2015).

Additionally, courts may consider documents under the “incorporation by reference” doctrine when a plaintiff “refers extensively to the document or the document forms the basis of the plaintiff's claim.” Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 1002 (9th Cir. 2018) (quoting United States v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003)) (internal quotations omitted). Under the “incorporation by reference” doctrine, courts may “take into account documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the [plaintiff's] pleading.” Davis v. HSBC Bank Nev., N.A., 691 F.3d 1152, 1160 (9th Cir. 2012) (internal quotations omitted). A court “may treat such a document as part of the complaint, and thus may assume that its contents are true for purposes of a motion to dismiss under Rule 12(b)(6).” Ritchie, 342 F.3d at 908. However, the court cannot consider any documents incorporated by reference in a complaint if the authenticity of those documents is contested. See Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998), superseded by statute on other grounds as recognized in Abrego Abrego v. Dow Chem. Co., 443 F.3d 676, 681-82 (9th Cir. 2006).

In support of its motion to dismiss, Defendant requ...