Schneider v. Bank of Am. N.A.
| Decision Date | 26 March 2013 |
| Docket Number | No. 2:11-cv-2953-LKK-EFB PS,2:11-cv-2953-LKK-EFB PS |
| Parties | CHRISTOPHER D. SCHNEIDER, Plaintiff, v. BANK OF AMERICA N.A.; FHLMC LBAC 173 a.k.a. FEDERAL HOME LOAN MORTGAGE CORPORATION (FREDDIE MAC); BAC HOME LOANS SERVICING LP; BALBOA INSURANCE CO.; BANK OF AMERICA MORTGAGE; QUALITY LOAN SERVICE CORP.; HOME RETENTION GROUP; and DOES 2-40, Defendants. |
| Court | U.S. District Court — Eastern District of California |
This case, in which plaintiff is proceeding pro se, is before the undersigned pursuant to Eastern District of California Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). Defendants Quality Loan Service Corporation ("QLS"), Bank of America, N.A. ("BANA") for itself and as successor by merger to BAC Home Loans Servicing, LP ("BAC"), Balboa Insurance Company ("Balboa"), and Federal Home Loan Mortgage Company (erroneously sued herein as FHLMC LBAC 173 a.k.a. Federal Home Loan Mortgage Corporation (Freddie Mac)) ("FHLMC") move to dismiss plaintiff's second amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Dckt. Nos. 93, 96; see also Dckt. No. 100. Plaintiff also seeks approval for the filingof a lis pendens. Dckt. No. 121. For the reasons stated herein, the undersigned recommends that the motions to dismiss be granted in part and that plaintiff's motion for approval of a lis pendens be denied without prejudice.
In November 2011, plaintiff filed a complaint in this action, alleging numerous state and federal claims against a variety of defendants based on the purported foreclosure of his home. He also filed a motion for a temporary restraining order and an ex parte motion for approval of plaintiff's filing of a lis pendens. Dckt. Nos. 1, 6, 9. On November 17, 2011, the assigned district judge granted the motion for a temporary restraining order and enjoined defendants from foreclosing on plaintiff's property. Dckt. No. 12. The court provided that the restraining order would expire within fourteen days. Id. at 8.1
On November 28, 2011, before a responsive pleading had been filed, plaintiff filed an amended complaint. Dckt. No. 15. Then, on November 29, 2011, plaintiff filed a request for an extension of the temporary restraining order and for an order to show cause as to why a preliminary injunction should not issue. Dckt. No. 16.
On December 1, 2011, the assigned district judge directed plaintiff to file his motion for a preliminary injunction in accordance with the Local Rules and set a hearing on the motion for January 17, 2012. The court also extended the temporary restraining order through the date of that hearing. Dckt. No. 17. On December 19, 2011, plaintiff filed his formal motion for a preliminary injunction, Dckt. No. 24, and on December 22, 2011, some of the defendants filed a motion to dismiss, Dckt. No. 26.
Then, on January 12, 2012, the district judge vacated the January 17, 2012 hearing and ordered the parties to re-notice their motions before the assigned magistrate judge. Dckt. No. 42.The January 12, 2012 order provided that the temporary restraining order was to remain in effect until the hearing on plaintiff's motion for a preliminary injunction. Id. at 3.
Defendants then noticed their motions to dismiss before the assigned magistrate judge, Dckt. Nos. 47 and 48, and plaintiff re-noticed his motion for a preliminary injunction, Dckt. No. 49. Plaintiff also filed a motion for sanctions against defendant QLS. Dckt. No. 51.
On March 2, 2012, the then-assigned magistrate judge held a hearing on all of the pending motions. Dckt. No. 63. At the hearing, and in a subsequent written order, the magistrate judge denied plaintiff's motion for a preliminary injunction without prejudice, denied plaintiff's motion for sanctions, denied plaintiff's ex parte motion for approval of a lis pendens without prejudice, and granted defendants' motions to dismiss plaintiff's federal claims with leave to amend.2 Id.; see also Dckt. No. 65. The court also held that the district judge's temporary restraining order "will remain in effect, absent further order of the court, until plaintiff has filed an amended complaint found to state a cognizable claim or this matter is dismissed." Dckt. No. 65 at 22.
Per the parties' agreement, on March 16, 2012, the then-assigned magistrate judge conducted an early settlement conference. Dckt. Nos. 63, 64, 69. The parties reached a tentative settlement agreement, subject to approval by defendant BANA. Dckt. No. 69. On March 26, 2012, BANA filed a notice of approval of settlement terms. Dckt. No. 70. However, on April 17, 2012, plaintiff filed a motion for extension of time to file a second amended complaint, stating that "settlement negotiations [are] taking additional time." Dckt. No. 71. Accordingly, the court scheduled a status of settlement conference for May 25, 2012. Dckt. No. 72.
At the May 25, 2012 status conference, the court noted that the matter had settled on March 16 and reviewed the terms that had been agreed upon at the settlement conference. Dckt. No. 73. The court also addressed plaintiff's motion for an extension of time to file a secondamended complaint and inquired as to the status of the settlement. Id. Plaintiff then informed the court of his position and objections, as well as his proposed changes to the settlement. Id. Counsel for BANA then stated BANA's position with respect to those objections. Id. A further settlement conference was then set for June 6, 2012. Id.
Because the court was unable to resolve plaintiff's objections to the proposed written settlement agreement memorializing the agreement that had been reached at the March 16, 2012, settlement conference, on June 8, 2012, the court concluded that the matter had not been settled and granted plaintiff's motion for an extension of time to file a second amended complaint. Dckt. No. 85. Also on June 8, the then-assigned magistrate judge disqualified himself from the action pursuant to 28 U.S.C. § 455, and the case was reassigned to the undersigned. Dckt. Nos. 83, 84.
On July 11, 2012, plaintiff filed a second amended complaint, alleging fifteen claims for relief against seven defendants, including four new claims and a new party, FHLMC. Second Am. Compl. ("SAC"), Dckt. No. 91. Defendants QLS, BANA (on behalf of itself and BAC), Balboa, and FHLMC now move to dismiss that complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).3 Dckt. Nos. 93, 96; see also Dckt. No. 100. Plaintiff opposes the motions, Dckt. Nos. 107,4 117, and 118, and once again moves for approval of the filing of a lis pendens, Dckt. No. 121.
Plaintiff's second amended complaint alleges various state and federal claims related to the property located at 16291 Stone Jug Drive, Sutter Creek, California 95685 (the "subjectproperty"). See generally SAC. Specifically, plaintiff alleges the following federal claims: (1) violation of the Real Estate Settlement and Procedures Act ("RESPA"), 12 U.S.C. § 2605; (2) violation of Regulation Z of the Truth in Lending Act ("TILA"), 12 C.F.R. Part 226; (3) violation of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692; (4) violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961 et. seq.; and (5) a request for declaratory relief (arguably under the Declaratory Judgment Act, 28 U.S.C. § 2201). Id. Plaintiff also alleges the following state law claims: (1) violation of California's Rosenthal Fair Debt Collection Practices Act ("RFDCPA"); (2) violation of California Civil Code section 2954(a)(1); (3) fraud, negligent misrepresentation, and conspiracy; (4) breach of deed of trust and contract; (5) accounting; (6) conversion; (7) wrongful foreclosure; (8) violation of the covenant of good faith and fair dealing; (9) negligence; (10) intentional infliction of emotional distress; and (11) violation of California Business and Professions Code section 17200. Id.
Plaintiff alleges that in late January or early February of 2001 he purchased his home with a mortgage obtained from defendant BANA. Id. ¶¶ 14-17. Because plaintiff did not make an initial down payment of 20% or greater when purchasing his home, he was required to pay a monthly mortgage insurance premium into an escrow account opened by BANA, in addition to his regular mortgage payment. Id. ¶ 19. In November of 2004, plaintiff had the value of his home reappraised. As a result of the reappraisal, he was able to eliminate the mortgage insurance requirement. This reduced plaintiff's monthly payment to the mortgage payment only, which was in the amount of $968.57. Id. ¶¶ 19-20. Accordingly, BANA closed the escrow account associated with plaintiff's mortgage insurance premium and permanently lowered plaintiff's monthly payment to $968.57. Id. ¶ 21.
Plaintiff alleges that in May of 2010, he received, for the first time, a notice from defendant BAC stating that they had not received a copy of plaintiff's homeowner's insurance policy. Id. ¶ 23. Plaintiff contends that for the eight to nine years prior, defendants BANA,BAC, and FHLMC never asked for any copies of his homeowner's insurance policies, never attempted to enforce any of the provisions in the deed of trust regarding homeowner's insurance, and never notified plaintiff regarding any concerns with regard to his homeowner's insurance. Id. Plaintiff states that he believes defendants' silence amounted to a waiver. Id.
Plaintiff contends that in May 2010, he spoke to numerous insurance brokers who were unwilling to insure the subject property. Id. ¶ 24. Plaintiff alleges that in December 2010, "after six months of continuous effort," plaintiff obtained a binding insurance policy for the property, with coverage effective until December 2011. Id. ¶ 25. Plaintiff contends that, as additional insured, BANA and BAC receive copies of all policy paperwork at the same time as plaintiff. Id.
However, because the subject property was uninsured from May...
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