Summary
holding courts may take judicial notice of documents referenced in complaint and/or publicly filed
Summary of this case from Razzak v. Wells Fargo BankOpinion
Attorneys for Plaintiffs: Not Present.
Attorneys for Defendants: Not Present.
CIVIL MINUTES -- GENERAL
Honorable BEVERLY REID O'CONNELL, United States District Judge.
Proceedings : (IN CHAMBERS)
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS [17]
I. INTRODUCTION
Pending before the Court is Defendant Wells Fargo Bank, N.A.'s (" Wells Fargo") motion to dismiss Plaintiff Laura Sanchez's First Amended Complaint pursuant to Federal Rules of Civil Procedure 9(b) and 12(b)(6). (Dkt. No. 17.) After consideration of the papers filed in support of and in opposition to the instant motion, the Court deems this matter appropriate for decision without oral argument of counsel. See Fed.R.Civ.P. 78; C.D. Cal. L.R. 7-15. For the following reasons, Defendant's motion is GRANTED.
II. BACKGROUND
Plaintiff Laura Sanchez is an individual who resides in Los Angeles County. (First Am. Compl. (" FAC") at 2.) In April 2008, Plaintiff secured a loan pursuant to a deed of trust from Wachovia Mortgage, FSB (" Wachovia"). (FAC ¶ 1.) In November 2009, Wachovia merged with Defendant Wells Fargo, and Wells Fargo eventually assumed loan-servicing responsibilities for Plaintiff's mortgage. Although she was initially able to meet her loan obligations, Plaintiff asserts that in late 2010 and early 2011 she began struggling to make her mortgage payments. (FAC ¶ ¶ 3-7.)
Because the First Amended Complaint restarts its paragraph numbering in the " General Allegations" section, all references to portions of the First Amended Complaint that come before this section will be referenced by page number. Paragraph citations refer to the numbered paragraph in the " General Allegations" section of the First Amended Complaint.
Wells Fargo is the legal successor to Wachovia. See Guerrero v. Wells Fargo Bank, N.A., No. CV 10-5095-VBF AJWX, 2010 WL 8971769, at *3 (C.D. Cal. Sept. 14, 2010) (citing 9 Witkin, Summary of Cal. Law, Corporations § 198 (10th ed. 2005) (stating that in a merger the surviving entity " succeeds to the rights, property, debts and liabilities, without other transfer")).
Plaintiff alleges that she initially contacted to Wachovia--who was servicing the loan at the time--but that Wachovia " strung Plaintiff along keeping her in a state of default under the guise that there was nothing they could do unless she paid the entire past due amount in one payment." (FAC ¶ ¶ 8, 10 (emphasis in original).) Plaintiff further alleges that these " stall tactics" continued when Wells Fargo began servicing her loan. (FAC ¶ 11.) According to Plaintiff, these tactics began when Wells Fargo requested loan modification documents in March 2014. (FAC ¶ ¶ 12-13.) After Plaintiff submitted these documents, she received a confirmation letter in which Wells Fargo stated, " Now that we've received the documents, our home preservation bankruptcy team will carefully review what you've submitted to determine if you are eligible for mortgage assistance. . . . If you're not eligible for a loan modification program, we'll look at other options to help you avoid foreclosure." (FAC ¶ ¶ 14-15.)
After being notified that Wells Fargo needed additional documents to complete its review of Plaintiff's loan modification application, Plaintiff submitted the requested documents and received another confirmation letter from Wells Fargo on April 24, 2014. (FAC ¶ ¶ 17-19.) Shortly thereafter, Plaintiff contacted Wells Fargo to check on the status of her application, and she was again notified that additional documents were needed. (FAC ¶ 20.) Plaintiff sent these documents in as well, and she received a final letter of confirmation on May 2, 2014, acknowledging receipt of these documents. (FAC ¶ 23.) This was the last communication between Plaintiff and Wells Fargo before Plaintiff initiated this lawsuit. (FAC ¶ 24.) Plaintiff alleges that Defendants scheduled a foreclosure sale of Plaintiff's home on July 7, 2014. (FAC ¶ 26.)
On July 24, 2014, Plaintiff filed a Complaint with the Superior Court of California, County of Ventura, in which she alleged six causes of action against Defendant: (1) violations of the California Homeowner's Bill of Rights; (2) promissory estoppel; (3) negligence; (4) negligent misrepresentation; (5) violation of California Civil Code section 2923.5; and (6) violation of California's Unfair Competition Law, Cal. Bus. & Prof. Code § § 17200 et seq . (Dkt. No. 1-1.) On September 11, 2014, Defendant removed the action to this Court on the basis of diversity of citizenship. (Dkt. No. 1.)
Defendant moved to dismiss Plaintiff's initial Complaint on September 18, 2014. (Dkt. No. 9.) Because Plaintiff failed to oppose this motion, the Court issued an Order to Show Cause as to why Plaintiff's Complaint should not be dismissed. (Dkt. No. 13.) In response, Plaintiff informed the Court that she would be amending her Complaint as a matter of course pursuant to Federal Rule of Civil Procedure 15(a)(1)(B). (Dkt. No. 14.) On October 9, 2014, Plaintiff filed her First Amended Complaint, which remains the operative complaint in this matter. (Dkt. No. 15.) On October 23, 2014, Defendant filed the instant motion to dismiss Plaintiff's First Amended Complaint. (Dkt. No. 17.) Plaintiff opposed this motion on November 3, 2014, (Dkt. No. 19), and Defendant responded on November 10, 2014, (Dkt. No. 20).
III. LEGAL STANDARD
Under Rule 8(a), a complaint must contain a " short and plain statement of the claim showing that the [plaintiff] is entitled to relief." Fed.R.Civ.P. 8(a). If a complaint fails to do this, the defendant may move to dismiss it under Rule 12(b)(6). Fed.R.Civ.P. 12(b)(6). " To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). A claim is plausible on its face " when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. " Factual allegations must be enough to raise a right to relief above the speculative level." Bell A. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Thus, there must be " more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678. " Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility'" that the plaintiff is entitled to relief. Id.
Where a district court grants a motion to dismiss, it should provide leave to amend unless it is clear that the complaint could not be saved by any amendment. Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008).
IV. REQUEST FOR JUDICIAL NOTICE
When considering a motion to dismiss, a court typically does not look beyond the complaint in order to avoid converting a motion to dismiss into a motion for summary judgment. See Mack v. S. Bay Beer Distribs., Inc., 798 F.2d 1279, 1282 (9th Cir. 1986), overruled on other grounds by Astoria Fed. Sav. & Loan Ass'n Solimino, 501 U.S. 104, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991). Notwithstanding this precept, a court may properly take judicial notice of (1) material which is included as part of the complaint or relied upon by the complaint, and (2) matters in the public record. See Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006); Lee v. City of L.A., 250 F.3d 668, 688-89 (9th Cir. 2001). Under Federal Rule of Evidence 201(b), a judicially noticed fact must be one " not subject to reasonable dispute in that it (1) is generally known within the territorial jurisdiction of the trial court; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Further, a court " must take judicial notice if a party requests it and the court is supplied with the necessary information." See Fed.R.Evid. 201(c)(2); In re Icenhower, 755 F.3d 1130, 1142 (9th Cir. 2014).
Defendant requests that the Court take judicial notice of a number of documents. First, Defendant requests that the Court take judicial notice of the Fixed Rate Mortgage Note signed by Plaintiff. (Dkt. No. 18-1 at 2-7.) Because Plaintiff refers to this document in the Complaint and Plaintiff does not question its authenticity in her opposition, the Court may properly take judicial notice of this document. See Branch v. Tunnell, 14 F.3d 449, 453-54 (9th Cir. 1994), overruled on other grounds by Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119 (9th Cir. 2002). Second, Defendant asks the Court to take judicial notice of a Deed of Trust, a Notice of Default, and a Notice of Trustee's Sale, all of which were recorded in the Official Records of the Ventura County Recorder's Office. (Dkt. No. 18-1 at 9-26, 40-41, 43-44.) As these documents have been publicly filed with the Ventura County Recorder's Office, the Court may take judicial notice of them as public records. See Gamboa v. Tr. Corps, No. 09-0007 SC, 2009 WL 656285, at *3 (N.D. Cal. Mar. 12, 2009) (taking judicial notice of documents related to a foreclosure sale as public documents).
Third, Defendant requests that the Court take judicial notice of various public documents related to Wachovia's merger with Wells Fargo, as well as printouts from a government website. (Dkt. No. 18-1 at 27-38.) The Court may properly take judicial notice of these documents as well. See Hite v. Wachovia Mortg., No. 2:09-cv-02884-GEB-GGH, at *6 (E.D. Cal. June 10, 2010) (taking judicial notice of Wachovia's " Certificate of Corporate Existence, " " a letter dated November 19, 2007 from the Office of Thrift Supervision, " " Wachovia's charter dated December 31, 2007, " and a letter from the Comptroller of the Currency confirming Wachovia's conversion to " a national bank with the name Wells Fargo Bank Southwest, National Association"); Paralyzed Veterans of Am. v. McPherson, No. C064670SBA, 2008 WL 4183981, at *7 (N.D. Cal. Sept. 9, 2008) (taking judicial notice of printouts from an official state website).
Next, Defendant asks the Court to judicially notice a number of documents filed in Plaintiff's bankruptcy proceedings. (Dkt. No. 18-1 at 46-263.) Courts regularly take judicial notice of court filings in other proceedings. See Trigueros v. Adams, 658 F.3d 983, 987 (9th Cir. 2011) (" In particular, we 'may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.'" (quoting United States ex rel. Robinson Rancheria Citizens Council v. Borneeo, Inc., 971 F.2d 244, 248 (9th Cir. 1992))). Thus, the Court will take judicial notice of these documents as well.
Finally, Defendants submit (1) an opinion letter by the Federal Home Loan Bank Board; (2) an opinion letter by the Office of Thrift Supervision, Department of the Treasury; and (3) a bulletin by the Office of the Comptroller of the Currency, Department of the Treasury. (Dkt. No. 18-1 at 265-79.) As publicly filed documents, the Court may properly take judicial notice of these documents as well. Accordingly, the Court GRANTS Defendant's request for judicial notice.
V. DISCUSSION
While both parties address the merits of Plaintiff's specific allegations regarding each cause of action, Defendant also raises two threshold issues, each of which bars Plaintiff's claims. As discussed below, the Court finds that Plaintiff's claims are both barred by the doctrine of judicial estoppel and preempted by the Home Owner's Loan Act of 1933, 12 U.S.C. § § 1461 et seq . (" HOLA").
A. Judicial Estoppel
Defendant argues that Plaintiff should be judicially estopped from bringing her claims. " The doctrine of judicial estoppel prevents a party from asserting a claim in a legal proceeding that is inconsistent with a claim taken by that party in a previous proceeding." New Hampshire v. Maine, 532 U.S. 742, 749, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001) (quoting 18 Moore's Federal Practice § 134.30, at 134-62 (3d ed. 2000)). In determining whether to apply judicial estoppel, courts consider three factors: (1) whether the party's later position is " clearly inconsistent with its earlier position"; (2) whether the party succeeded in persuading the first court to accept the party's earlier position, so that " judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or the second court was misled"; and (3) whether the party now seeking to assert an inconsistent position would " derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped." Id.
Defendant argues that judicial estoppel applies here because Plaintiff failed to identify her claim against Defendant as an asset in her bankruptcy proceedings. Indeed, the documents of which this Court has taken judicial notice demonstrate that Plaintiff has filed for bankruptcy seven times since 2010. ( See Dkt. No. 18-1 at 46-136.) Plaintiff does not dispute the accuracy of these documents, and the parties agree that Plaintiff's most recent bankruptcy proceeding was dismissed in June 2014. Plaintiff also does not dispute that she never listed her claim against Defendant as an asset in any of these bankruptcy proceedings. Rather, Plaintiff contends that she should not be judicially estopped from bringing her claims because she was not aware that she had a potential cause of action against Defendant at the time of these proceedings.
The Ninth Circuit has recognized the application of judicial estoppel in this context. In Hamilton v. State Farm Fire & Casualty Co., 270 F.3d 778, 784 (9th Cir. 2001), the Ninth Circuit discussed the general rule that " a debtor who fail[s] to disclose a pending claim as an asset in a bankruptcy proceeding where debts [a]re permanently discharged [i]s estopped from pursuing such claim in a subsequent proceeding." Moreover, this rule applies even where the claim is not pending at the time of the bankruptcy proceeding. The Ninth Circuit made this clear in Hay v. First Interstate Bank of Kalispell, N.A., where the court stated: " We recognize that all facts were not known to Desert Mountain at that time, but enough was known to require notification of the existence of the asset to the bankruptcy court. Failure to give the required notice estops Desert Mountain and justifies the grant of summary judgment to the defendants." 978 F.2d 555, 557 (9th Cir. 1992) (citations omitted) (citing Monroe Cnty. Oil Co. v. Amoco Oil Co., 75 B.R. 158, 162 (S.D. Ind. 1987) (" Among other things, the debtor must disclose any litigation likely to arise in a nonbankruptcy context.")).
Because Plaintiff took the inconsistent position in her bankruptcy proceedings that she did not have any claims against Defendant, and because the bankruptcy courts necessarily relied on this position in implementing the automatic stay that enabled Plaintiff to delay foreclosure proceedings, Defendant argues that Plaintiff's claims should be barred by judicial estoppel. See HPG Corp. v. Aurora Loan Servs., LLC, 436 B.R. 569, 578 (E.D. Cal. 2010) (" By filing their petitions with the bankruptcy court, the debtors, by operation of laws that initially presume the filing of good-faith and truthful petitions, received the benefits of automatic stays from the bankruptcy courts."). Plaintiff, however, contends that her claims should not be barred due to her failure to list them in her bankruptcy proceedings because she is " an unsophisticated consumer with no real knowledge of the laws governing non-judicial foreclosures in the state of California, " and, consequently, she " could not know the validity of any claim at the time of her Bankruptcy filing, nor during the life of the bankruptcy case." (Dkt. No. 19 at 10.)
Yet Plaintiff's actual knowledge of her claims-or her understanding of the law in general--is not at issue. " Under the standard set forth by the Ninth Circuit in Hamilton and Hay, the issue is instead whether Plaintiff had sufficient factual knowledge about [her claim] to know that a potential cause of action existed during the pendency of [her] bankruptcy." Granados v. Supervalu, Inc., No. LA CV11-10175 JAK, 2012 WL 3562521, at *4 (C.D. Cal. Aug. 16, 2012) (emphasis added); accord Hamilton, 270 F.3d at 785 (" Judicial estoppel will be imposed when the debtor has knowledge of enough facts to know that a potential cause of action exists during the pendency of the bankruptcy, but fails to amend his schedules or disclosure statements to identify the cause of action as a contingent asset."); Swendsen v. Ocwen Loan Servicing, LLC, No. 2:13-CV-02082-TLN, 2014 WL 1155794, at *5 (E.D. Cal. Mar. 21, 2014) (" [A] debtor must disclose not only the claims he is aware of when he files a petition, but also those potential claims which are acquired 'after the commencement of the case but before the case is closed, dismissed, or converted.'" (quoting 11 U.S.C. § 1306(a)(1))); Shokohi v. JP Morgan Chase Bank, No. C 11-4947 MMC, 2011 WL 5412933, at *2-3 (N.D. Cal. Nov. 8, 2011) (" It is the awareness of the factual, not the legal, basis of a claim that triggers a bankruptcy petitioner's duty to list the claim as an asset."); Rose v. Beverly Health & Rehab. Servs., Inc., 356 B.R. 18, 25 (E.D. Cal. 2006) (" [T]he duty of the bankruptcy petitioner to disclose the existence of a potential claim is . . . a duty of candor that accrues from the time the facts that give rise to the potential claim are known."); Donato v. Metro. Life Ins. Co., 230 B.R. 418, 421 (N.D. Cal. 1999) (" The debtor must disclose any litigation likely to arise in a nonbankruptcy context." (emphasis added)).
The parties agree that Plaintiff's most recent bankruptcy proceedings were dismissed in June 2014. Accordingly, if Plaintiff had sufficient knowledge of the factual basis for her claims in June 2014, her claims must be barred, because it is undisputed that she neither listed these claims as an asset nor amended her filings when she became aware of them. See Dorado v. Shea Homes Ltd. P'ship, No. 1:11-CV-01027 OWW, 2011 WL 3875626, at *3 n.1 (E.D. Cal. Aug. 31, 2011) (" If the debtor is not knowledgeable of all the facts giving rise to a civil action before the filing of his or her petition and financial schedules, the debtor must amend those schedules when he or she becomes aware of the existence of the action because it is an asset of the bankruptcy estate." (citing Hay, 978 F.2d at 557; Fed.R.Bankr.P. 1009(a))). Plaintiff filed her initial Complaint in this matter on July 24, 2014. (Dkt. No. 1-1.) She does not claim to have discovered any facts between June and July 2014 that would form the basis of her claims in this matter. In fact, Plaintiff alleges in her First Amended Complaint that the last communication she had with Defendant was on May 2, 2014, (FAC ¶ 23), and she makes clear that the events giving rise to her claims transpired during her loan modification application process before that. (FAC ¶ ¶ 1-25.) As a result, the Court is left with the inescapable conclusion that Plaintiff was aware of the facts giving rise to her claims during the pendency of at least her most recent bankruptcy proceeding yet failed to assert these claims. Pursuant to Hay and Hamilton, Plaintiff's claims are thus barred by the doctrine of judicial estoppel.
Plaintiff has asserted in both her original Complaint and her First Amended Complaint that Defendant has scheduled a foreclosure sale on July 7, 2014, (FAC ¶ 26), but that date was several weeks before she filed her Complaint and several months before she filed her First Amended Complaint. And there appears to be no dispute that this sale never in fact occurred.
B. Preemption by the Home Owners' Loan Act
Alternatively, Defendant also argues that Plaintiff's claims are preempted by the HOLA. The HOLA, which regulates federal savings banks, was enacted during the Great Depression of the 1930s in order to " restore the public's confidence in savings and loan associations at a time when 40% of home loans were in default." Bank of Am. v. City & Cnty. of S.F., 309 F.3d 551, 559 (9th Cir. 2002); accord 12 U.S.C. § 1464(d)(5) (defining a " savings association"). As discussed below, the HOLA has a preemptive effect that also precludes Plaintiff from raising her claims against Defendant.
1. HOLA Preemption Applies
Through the HOLA, Congress gave the Office of Thrift Supervision (" OTS") broad authority to issue regulations governing thrifts. See 12 U.S.C. § 1464. As the principal regulator of federal savings associations, the OTS promulgated a preemption regulation in 12 C.F.R. § 560.2. This regulation states:
That this rule of preemption is expressed in a federal regulation rather than a federal statute is of no consequence. " Federal regulations have no less pre-emptive effect than federal statutes." Fid. Fed. Sav. & Loan Ass'n v. de la Cuesta, 458 U.S. 141, 153, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982).
OTS hereby occupies the entire field of lending regulation for federal savings associations. OTS intends to give federal savings associations maximum flexibility to exercise their lending powers in accordance with a uniform federal scheme of regulation. Accordingly, federal savings associations may extend credit as authorized under federal law, including this part, without regard to state laws purporting to regulate or otherwise affect their credit activities, except to the extent provided in paragraph (c) of this section or § 560.110 of this part. For purposes of this section, " state law" includes any state statute, regulation, ruling, order or judicial decision.
Id. (emphasis added). Section 560.2 also provides specific examples of laws that are preempted, including " [l]oan-related fees, including without limitation, initial charges, late charges, prepayment penalties, servicing fees, and overlimit fees"; " [d]isclosure and advertising"; " [p]rocessing, origination, servicing, sale or purchase of, or investment or participation in, mortgages"; and " [d]isbursements and repayments." Id. § 560.2(b).
Plaintiff contracted with Wachovia, as the lender and trust deed holder, in April 2008. (FAC ¶ 1.) It is undisputed that Wachovia was then a Federal Savings Bank. ( See Dkt. No. 18-1 at 32-33.) As a Federal Savings Bank, Wachovia was " chartered under section 5 of the [HOLA]." (Dkt. No. 18-1 at 32.) Moreover, Paragraph 15 of the trust deed signed by Plaintiff states that the instrument " shall be governed by and construed under federal law and federal rules and regulations, including those for federally chartered savings institutions." (Dkt. No. 18-1 at 17.) And despite Plaintiff's arguments to the contrary, that Wachovia merged into Wells Fargo does not render the HOLA inapplicable. Courts have held that successors in interest may properly assert preemption under the HOLA even if the successor entity is not a federally chartered savings institution. See, e.g., Williams v. Wells Fargo Bank, NA, No. SA CV 13-0303-DOC, 2013 WL 2047000, at *3 (C.D. Cal. May 13, 2013) (" HOLA preemption analysis applies even after the FSB merges into a national bank, as long as the mortgage originated with an FSB."); Gorton v. Wells Fargo Bank NA, No. SA CV 12-1245 JVS (MLGx), at *12 (C.D. Cal. Nov. 27, 2012) (" HOLA preemption continues to apply to loans originated by a federal savings bank even after those banks are merged into national banking associations."); Appling v. Wachovia Mortg., FSB, 745 F.Supp.2d 961, 971 (N.D. Cal. 2010) (" [A]lthough Wells Fargo itself is not subject to HOLA and OTS regulations, this action is nonetheless governed by HOLA because Plaintiff's loan originated with a federal savings bank and was therefore subject to the requirements set forth in HOLA and OTS regulations."). " These cases teach that the preemptive power of HOLA attaches to a loan, and continues with that loan throughout its lifetime." Poyorena v. Wells Fargo Bank, N.A., No. CV 14-683 GAF (Ex), at *16 (C.D. Cal. Apr. 3, 2014). HOLA preemption may thus apply.
See generally Metzger v. Wells Fargo Bank, N.A., No. LA CV14-00526 JAK SS, 2014 WL 1689278, at *3-4 (C.D. Cal. Apr. 28, 2014) (discussing this issue at length and concluding that HOLA preemption applies in similar circumstances).
2. The Standard for Preemption Under the HOLA
The OTS has outlined the proper framework to apply in evaluating whether a state law is preempted pursuant to section 560.2:
When analyzing the status of state laws under § 560.2, the first step will be to determine whether the type of law in question is listed in paragraph (b). If so, the analysis will end there; the law is preempted. If the law is not covered by paragraph (b), the next question is whether the law affects lending. If it does, then, in accordance with paragraph (a), the presumption arises that the law is preempted. This presumption can be reversed only if the law can clearly be shown to fit within the confines of paragraph (c). For these purposes, paragraph (c) is intended to be interpreted narrowly. Any doubt should be resolved in favor of preemption .
OTS, Final Rule, 61 Fed. Reg. 50951, 50966-67 (Sept. 30, 1996) (emphasis added); Silvas v. E* Trade Mortg. Corp., 514 F.3d 1001, 1005 (9th Cir. 2008).
The Ninth Circuit applied this framework in a similar context in Silvas . There, " the Ninth Circuit focused not on the nature of the cause of action allegedly preempted, but rather on the functional effect upon lending operations of maintaining the cause of action." Rumbaua v. Wells Fargo Bank, N.A., No. 11-1998 SC, 2011 WL 3740828, at *7 (N.D. Cal. Aug. 25, 2011). Under this approach, even state laws of general applicability such as tort, contract, and real property laws are preempted if their enforcement would impact federal savings associations in areas listed in section 560.2(b). See Silvas, 514 F.3d at 1006; see also 12 C.F.R. § 560.2(c). Alternatively, such laws are preempted if they have more than an incidental effect on the lending operations of a federal savings association. 12 C.F.R. § 560.2(c). Moreover, a claim or state law may be preempted on an " as applied" or case-specific basis. See Silvas, 514 F.3d at 1006.
3. Plaintiff's Claims Are Preempted by the HOLA
Plaintiff has brought claims against Defendant for (1) violations of the California Homeowners' Bill of Rights (" HBOR") (first and fifth causes of action), (FAC ¶ ¶ 27-58, 105-19); (2) promissory estoppel, negligence, and negligent misrepresentation (second, third, and fourth causes of action, respectively), (FAC ¶ ¶ 59-104); and (3) violations of California's Unfair Competition Law (" UCL"), (FAC ¶ ¶ 120-57). Applying the framework described above to Plaintiff's claims, the Court finds that all of Plaintiff's causes of action are preempted under the HOLA.
a. Violations of the HBOR (First and Fifth Claims)
First, Plaintiff alleges that Defendant has violated various provisions of the HBOR in the course of its servicing and modification review process of Plaintiff's loan. Specifically, Plaintiff alleges that Defendant has violated the following statutes: Cal. Civ. Code § § 2923.5, 2923.6, 2923.7, 2923.55, 2924(a)(6), 2924.10(a), 2924.17. (FAC ¶ ¶ 27-58, 105-19.) The factual predicate for these alleged violations, however, is the same in that the basis for each relates to Defendant's loan servicing or alleged delay or denial of Plaintiff's application for a loan modification.
Courts have routinely held that such claims are preempted by the HOLA. See, e.g., Metzger, 2014 WL 1689278, at *5 (" '[C]laims arising under . . . section 2924 are preempted by HOLA' because such claims concern the 'processing' and 'servicing' of mortgages." (modification in original) (quoting Sami v. Wells Fargo Bank, N.A., No. C 12-00108 DMR, 2012 WL 967051, at *8 (N.D. Cal. Mar. 21, 2012))); id . (finding that the HOLA preempted claims under California Civil Code sections 2923.6(c), 2923.55, 2924(a)(6), and 2924.17); Marquez v. Wells Fargo Bank, N.A., No. C 13-2819 PJH, 2013 WL 5141689, at *5 (N.D. Cal. Sept. 13, 2013) (finding that four " causes of action, which allege various violations of the HBOR, are preempted by HOLA"); Williams, 2013 WL 2047000, at *3 (" Because Section 2923.5 is a state law that attempts to regulate federal savings banks and their lending and servicing activities, it is exactly the sort of statute that is proscribed by the HOLA."); Nodari v. Wells Fargo Bank, N.A., CV 11-9681-JFW (SHx), at *11 (C.D. Cal. Jan. 4, 2012) (finding that the HOLA preempted the plaintiff's claims under sections 2923.5 and 2923.6); Taguinod v. World Sav. Bank, FSB, 755 F.Supp.2d 1064, 1074 (C.D. Cal. 2010) (" [I]t is evident that the overwhelming weight of authority has held that a claim under § 2923.5 is preempted by HOLA."); Murillo v. Aurora Loan Servs., LLC, No. C 09-00503 JW, 2009 WL 2160579, at *4 (N.D. Cal. July 17, 2009) (finding that plaintiffs' claim under section 2923.5 was preempted because it " concern[ed] the processing and servicing of Plaintiffs' mortgage"). As in these cases, the Court finds that Plaintiff's HBOR claims relate to the " processing" and " servicing" of her mortgage and are thus precisely the type of claims that are preempted by section 560.2(b)(10). See Metzger, 2014 WL 1689278, at *5.
b. Plaintiff's Common Law Causes of Action (Second, Third, and Fourth Claims)
Next, Plaintiff asserts common law claims for promissory estoppel, negligence, and negligent misrepresentation. (FAC ¶ ¶ 59-104.) Each of these claims alleges that Defendant failed to process Plaintiff's loan modification application properly. ( See FAC ¶ ¶ 61 (supporting Plaintiff's promissory estoppel claim by alleging that Defendant " promised Plaintiff on a number of occasions that if she submitted the required documentation, she would be reviewed for a loan modification, as well as other loss mitigation options"), 67 (alleging that Defendant was negligent because it breached its duty of care to Plaintiff " by needlessly stringing Plaintiff along for nearly a year, and then failing to process Plaintiff's 20l4 loan modification application"), 100 (asserting negligent misrepresentation on the basis that Defendant's representative failed to address her concerns regarding her loan modification application).)
HOLA preempts exactly this type of activity. Section 560.2(b)(4) preempts claims pertaining to " the circumstances under which a loan may be called due and payable upon the passage of time or a specified event external to the loan." 12 C.F.R. § 560.2(b)(4). This section is synonymous with loan modification. Even assuming it is not, however, section 560.2(b)(10) encompasses claims based on a loan's " processing [or] servicing, " such as a bank's actions in preparing a loan modification. See, e.g., Guerrero, 2010 WL 8971769, at *3-4 (finding that the HOLA preempted promissory estoppel claims); Nga Do v. Wells Fargo Bank, N.A., No. CV 12-5645 PA (AGRx), at *14-16 (C.D. Cal. Aug. 27, 2012) (holding that the HOLA preempted state law claims based upon a bank's delay or denial of loan modification); Murillo, 2009 WL 2160579, at *4 (holding that a claim was preempted because it " concern[ed] the processing and servicing of Plaintiffs' mortgage"). As in these cases, the activities underlying Plaintiff's claims for promissory estoppel, negligence, and negligent misrepresentation relate to the modification, servicing, and processing of Plaintiff's loan and are thus preempted by the HOLA.
c. Plaintiff's UCL Cause of Action (Sixth Claim)
Finally, Plaintiff's sixth cause of action alleges violation of the UCL for committing unlawful business practices. (FAC ¶ ¶ 120-57.) Although this portion of Plaintiff's First Amended Complaint contains a great deal of legal argument, it provides few additional facts. Rather, Plaintiff's UCL claim rests on the same facts underlying her first through fifth causes of action-- i.e., that Defendant acted unfairly, unlawfully, or fraudulently in servicing Plaintiff's loan and in processing her loan modification application. ( See FAC ¶ ¶ 137-57.) California courts have repeatedly held that claims based on the UCL must plead or allege that a business practice independently forbidden by law has occurred. See, e.g., Korea Supply Co. v. Lockheed Martin Corp., 29 Cal.4th 1134, 1143, 131 Cal.Rptr.2d 29, 63 P.3d 937 (Cal. 2003). As applied, Plaintiff's first five claims are all preempted under section 560.2(b). As a result, Plaintiff's UCL claim is also preempted. See Silvas, 514 F.3d at 1006 (" Because the UCL § 17200 claim, as applied, is a type of state law listed in paragraph (b) . . . the preemption analysis ends there."); Williams, 2013 WL 2047000, at *4 (" Plaintiffs' pleadings fail to allege any unlawful business practice that are not tied to his already dismissed Section 2923.5 claim, and so this claim must be dismissed."); Taguinod, 755 F.Supp.2d at 1074 (" [B]ecause there are no remaining causes of action, derivative liability under the UCL would be impossible.").
VI. CONCLUSION
For the foregoing reasons, the Court GRANTS Defendant's motion. Each of Plaintiff's claims is hereby DISMISSED with prejudice. The hearing set for November 24, 2014 is VACATED.
IT IS SO ORDERED.