Salcido v. Jpmorgan Chase Bank Na
| Decision Date | 17 March 2015 |
| Docket Number | No. CV-14-02560-PHX-DGC,CV-14-02560-PHX-DGC |
| Parties | Gabriel Salcido, et al., Plaintiffs, v. JPMorgan Chase Bank NA, et al., Defendants. |
| Court | U.S. District Court — District of Arizona |
Defendants Seterus, Inc. and Federal National Mortgage Association have filed a motion of dismiss (Doc. 16), as have Defendants JPMorgan Chase Bank, N.A. and Chase Home Financial LLC (Doc. 21). Defendants argue that Plaintiffs' claims are barred by the statute of limitations. The motions are fully briefed, and will be granted.1
Plaintiffs' allegations are as follows. In 2005, Plaintiffs Gabriel Salcido and Ingrid Fisketjon, a married couple, took out a loan secured by a deed of trust for their house. Doc. 1-1, ¶ 10. This loan was subject to the Home Affordable Modification Program ("HAMP"), a federal program designed to facilitate the modification of mortgages. Id., ¶¶ 11-12. In 2009, Plaintiffs had financial difficulties and sought to modify the terms of their loan with Defendants JPMorgan Chase Bank and Chase Home Finance, LLC (collectively, "Chase"). Id., ¶ 11. On July 1, 2009, Chase informedPlaintiffs that it would not modify their loan under HAMP because Plaintiffs had failed to make several trial-period payments of $900 a month. Id., ¶ 17. Plaintiffs claim that they were ignorant of any requirement to make these payments. Id. Plaintiffs also claim that they were in fact eligible for a loan modification under HAMP. Id., ¶ 57.
Chase then offered an "internal" or "in-house" modification of Plaintiffs' loan. Id., ¶ 19. Plaintiffs agreed and paid $1,200 a month to Chase for at least fifteen months. Id. On August 10, 2010, Chase notified Plaintiffs that it had transferred the servicing rights on their loan to Defendant Seterus, Inc. Id., ¶ 20. After reviewing Plaintiffs' debt, Seterus informed Plaintiffs that it lacked documentation of Plaintiffs' loan modification with Chase and of Plaintiffs' $1,200 a month payments to Chase. Id., ¶ 22. Plaintiffs therefore had to apply for another loan modification with Seterus. Id.
Seterus then "drag[ged] out" this application process by requiring Plaintiffs to fill out detailed forms and keeping Plaintiffs on hold for hours, while Seterus "continued to rack up late fees, default interest, costs and other fees[.]" Id., ¶¶ 23-25. Finally, on February 10, 2011, Seterus orally agreed to modify Plaintiffs' loan if Plaintiffs paid $12,000 upfront and $2,300 a month afterwards. Id., ¶ 26. Plaintiffs requested that the $12,000 be held in escrow, Seterus refused, and the deal fell through. Id., ¶ 27.
Seterus then decided to hold a trustee's sale of the property. Id., ¶ 31. Plaintiffs tried to postpone this sale and enlisted the National Association of Consumer Advocates to help them. Id., ¶¶ 28, 31. In response, Seterus gave inconsistent and false information. Id., ¶¶ 31-34. The sale ultimately went through on March 3, 2011. Id., ¶¶ 31-34. On March 7, 2011, Plaintiffs learned that Defendant Federal National Mortgage Association ("FNMA") claimed to be the owner of Plaintiffs' loan. Id., ¶ 35. While receiving eviction notices, Plaintiffs attempted to modify their loan with FNMA. Id., ¶¶ 36-42. In May of 2011, FNMA orally requested Plaintiffs to pay $10,000 to Seterus, Plaintiffs asked that this be put in writing, and FNMA refused. Id., ¶ 42.
On July 1, 2011, Plaintiffs filed a Chapter 13 bankruptcy petition, which stalled the eviction efforts. Id., ¶ 43. The bankruptcy petition was voluntarily dismissed onJune 7, 2012. Id. Beginning in 2011, Plaintiffs also pursued what they term "administrative remedies." Id., ¶ 39. They sought another loan modification with Seterus on September 18, 2013. Id., ¶ 44. They also filed complaints with their United States senators, the Arizona Attorney General's Office, the United States Office of Homeownership Preservation, the HAMP Solutions Center, and the Consumer Financial Protection Bureau. Id., ¶¶ 39-47. When all of these complaints came to naught, Plaintiffs filed this lawsuit on October 8, 2014.
Plaintiffs assert five claims: (1) negligent performance of an undertaking against all Defendants; (2) unjust enrichment against the Chase Defendants and FNMA; (3) conversion against the Chase Defendants and FNMA; (4) breach of the covenant of good faith and fair dealing against all Defendants; and (5) wrongful foreclosure against FNMA.
Under Arizona law, "[t]he purpose of the statute of limitations is to 'protect defendants and courts from stale claims where plaintiffs have slept on their rights.'" Doe v. Roe, 955 P.2d 951, 960 (Ariz. 1998) (quoting Gust, Rosenfeld & Henderson v. Prudential Ins. Co. of Am., 898 P.2d 964, 968 (Ariz. 1995)). "As a general matter, a cause of action accrues, and the statute of limitations commences, when one party is able to sue another." Gust, 898 P.2d at 966 (citing Sato v. Van Denburgh, 599 P.2d 181, 183 (Ariz. 1979)). Thus, "the period of limitations begins to run when the act upon which legal action is based took place, even though the plaintiff may be unaware of the facts underlying his or her claim." Id. To mitigate the harshness that the traditional rule sometimes imposed, courts have developed the "discovery rule" exception. Id. Under the discovery rule, "a cause of action does not accrue until the plaintiff knows or with reasonable diligence should know the facts underlying the cause." Doe, 955 P.2d at 960. "The rationale behind the discovery rule is that it is unjust to deprive a plaintiff of a cause of action before the plaintiff has a reasonable basis for believing that a claim exists."Gust, 898 P.2d at 967. "The defense of statute of limitations is never favored by the courts, and if there is doubt as to which of two limitations periods should apply, courts generally apply the longer." Id. at 968.
Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980). The complaint cannot be dismissed, however, "'unless it appears beyond doubt that the plaintiff can prove no set of facts that would establish the timeliness of the claim.'" Hernandez v. City of El Monte, 138 F.3d 393, 402 (9th Cir. 1998) (quoting Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1206 (9th Cir. 1995)); see Cervantes v. City of San Diego, 5 F.3d 1273, 1275 (9th Cir. 1993). Indeed, "[d]ismissal on statute of limitations grounds can be granted pursuant to Fed. R. Civ. P. 12(b)(6) 'only if the assertions of the complaint, read with the required liberality, would not permit the plaintiff to prove that the statute was tolled.'" TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999) (quoting Vaughan v. Grijalva, 927 F.2d 476, 478 (9th Cir. 1991)); see Pisciotta v. Teledyne Indus., Inc., 91 F.3d 1326, 1331 (9th Cir. 1996). "'Because the applicability of the equitable tolling doctrine often depends on matters outside the pleadings, it is not generally amenable to resolution on a Rule 12(b)(6) motion.'" Hernandez, 138 F.3d at 402 (quoting Supermail Cargo, 68 F.3d at 1206).
Under Arizona law, "'[o]ne who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if . . . his failure to exercise reasonable care increases the risk of such harm[.]'" Diggs v. Arizona Cardiologists, Ltd., 8 P.3d 386, 390 (Ariz. Ct. App. 2000) (quoting Restatement (Second)of Torts § 324A). The statute of limitations for this claim is two years. A.R.S. § 12-542(3); see McManus v. Am. Exp. Tax & Bus. Servs., Inc., 67 F. Supp. 2d 1083, 1086 (D. Ariz. 1999).
Against Defendants JPMorgan Chase Bank, Chase Home Financial, and FNMA,2 Plaintiffs allege the following facts in support of this claim: (1) Defendants improperly evaluated Plaintiffs' eligibility for a loan modification under HAMP; (2) Defendants failed to inform Plaintiffs that they were required to make several "trial-period payments" for the loan modification under HAMP; (3) Defendants failed to document the "in-house" loan modification provided for Plaintiffs; and (4) Defendants failed to document receipt of the $1,200 monthly payments made by Plaintiffs. Doc. 1-1, ¶¶ 54-65.
Plaintiffs became aware of the first two facts on July 1, 2009, when Chase informed Plaintiffs that they were not eligible for a loan modification under HAMP due to their failure to make trial-period payments. Id., ¶ 17. Plaintiffs became aware of the third and fourth facts when Seterus told Plaintiffs that it did not have documentation of their loan modification with Chase and of their $1,200 monthly payments. Id., ¶ 22. Although Plaintiffs do not allege a date for this event, it certainly occurred before February 10, 2011, when Seterus offered a different loan modification. Id., ¶ 26. These dates are more than two years before the date of Plaintiffs' complaint, October 8, 2014. Plaintiffs' negligence claim against these Defendants is therefore barred by the statute of limitations.
Against Defendants Seterus and FNMA, Plaintiffs' allege the following facts in support of their claim: (1) Seterus did not timely process Plaintiffs' application for a loan modification; (2) Seterus improperly demanded a large upfront payment for a loan modification; and (3) Seterus failed to honor Plaintiffs' previous loan modification with and $1,200 monthly payments to Chase. Id., ¶¶ 68-70. Plaintiffs knew all of these factsby February 10, 2011. By this time, Plaintiffs had completed the application process for a loan modification, Seterus had demanded a large upfront payment, and Seterus had told Plaintiffs it would...
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