Elizabeth Asante et al v. Ocwen Loan Servicing, Llc

NOTICE OF MOTION AND MOTION to Dismiss Case

C.D. Cal.November 18, 2016

1 NOTICE OF MOTION AND MOTION TO DISMISS COMPLAINT - CASE #: 2:16-CV-08281-PSG-KS 794637.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 McGLINCHEY STAFFORD Adam S. Hamburg (SBN 247127) ahamburg@mcglinchey.com Brian A. Paino (SBN 251243) bpaino@mcglinchey.com 18201 Von Karman Avenue, Suite 350 Irvine, California 92612 Telephone: (949) 381-5900 Facsimile: (949) 271-4040 Attorneys for Defendant OCWEN LOAN SERVICING, LLC UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION ELIZABETH ASANTE; DEAN A. MENSAH, Plaintiffs, v. OCWEN LOAN SERVICING, LLC, Defendants. Case No.: 2:16-cv-08281-PSG-KS Hon. Philip S. Gutierrez DEFENDANT OCWEN LOAN SERVICING, LLC’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT OR ALTERNATIVELY, FOR A MORE DEFINITE STATEMENT PURSUANT TO FRCP 12(b)(6) and 12 (e); MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF [Filed concurrently with Request for Judicial Notice and [Proposed] Order] Hearing: Date: January 30, 2017 Time: 1:30 p.m. Ctrm. 880 State Court Case No. 16IWSC03697 Action Filed: October 4, 2016 Trial Date: November 29, 2016 Case 2:16-cv-08281-PSG-KS Document 12 Filed 11/18/16 Page 1 of 20 Page ID #:130 2 NOTICE OF MOTION AND MOTION TO DISMISS COMPLAINT - CASE #: 2:16-CV-08281-PSG-KS 794637.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO ALL INTERESTED PARTIES: PLEASE TAKE NOTICE that, on January 30, 2017, at 1:30 p.m., or as soon thereafter as the matter may be heard, in Courtroom 880 of the above-entitled court, located at 255 E. Temple Street, Los Angeles, California 90012, defendant Ocwen Loan Servicing, LLC (“Ocwen”) will, and hereby does, move the Court to dismiss all claims against it pursuant to Federal Rule of Civil Procedure (“FRCP”) Rule 12(b)(6), or alternatively, for an order for a more definite statement pursuant to FRCP Rule (12(e). As set forth more fully in the accompanying Memorandum of Points and Authorities (the “Memorandum”), this motion is made on the ground that plaintiff Dean Mensah lacks standing to assert any claims against Ocwen, and the Complaint, in its entirety, fails to state a claim against Ocwen upon which relief can be granted. This motion is based on this Notice, the attached Memorandum, the Request for Judicial Notice filed concurrently herewith, the pleadings and papers on file herein, and upon such oral and documentary evidence as may be presented by the parties at the hearing. DATED: November 18, 2016 McGLINCHEY STAFFORD By: /s/ Adam S. Hamburg ADAM S. HAMBURG BRIAN A. PAINO Attorneys for Defendant OCWEN LOAN SERVICING, LLC Local Civil Rule 7-3 Certification This motion is made following counsel’s conference with Plaintiff Dean Mensah pursuant to L.R. 7-3, which took place on October 13, 2016. Counsel for Ocwen has attempted to contact Plaintiff Elizabeth Asante to conduct a conference pursuant to Local Rule 7-3, but the telephone number listed for Ms. Asante is Dean Mensah’s telephone number. Case 2:16-cv-08281-PSG-KS Document 12 Filed 11/18/16 Page 2 of 20 Page ID #:131 i TABLE OF CONTENTS - CASE #: 2:16-CV-08281-PSG-KS 794637.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS I. INTRODUCTION ................................................................................................ 1 II. STATEMENT OF FACTS ................................................................................... 2 III. LEGAL AUTHORITY ......................................................................................... 3 IV. ARGUMENT........................................................................................................ 5 A. Dean Mensah Lacks Standing to Assert Any Claims Against Ocwen ......................................................................................................... 5 B. Each of Plaintiff’s Purported Causes of Action Are Fatally Flawed ......... 6 1. Plaintiff’s Breach of Contract Claim Fails as a Matter of Law .................................................................................................. 6 2. The Complaint Fails to State a Claim for Fraud .............................. 8 3. Plaintiff Has Not Alleged a Claim for Violation of RICO .............. 9 4. Plaintiff Has Not Alleged a Claim for Violation of FCRA ............. 9 5. Plaintiff’s UCL Claim is Fatally Defective ................................... 10 6. Unjust Enrichment is Not a Recognized Cause of Action ............ 12 C. Alternatively, the Court Should Order Plaintiff to Provide a More Definite Statement of Claims. .................................................................. 12 V. CONCLUSION .................................................................................................. 13 Case 2:16-cv-08281-PSG-KS Document 12 Filed 11/18/16 Page 3 of 20 Page ID #:132 ii TABLE OF AUTHORITIES - CASE #: 2:16-CV-08281-PSG-KS 794637.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES FEDERAL CASES Ashcroft v. Iqbal, 556 U.S. 662 (2009) .............................................................................................. 3, 10 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696 (9th Cir. 1990) ...................................................................................... 4 Bell Atlantic v. Twombly, 550 U.S. 544 (2007) ................................................................................................ 3, 4 Bias v. Wells Fargo & Co., 942 F.Supp.2d 915 (N.D. Cal. 2013) ........................................................................ 11 Cooper v. Pickett, 137 F.3d 616 (9th Cir. 1997) .................................................................................... 10 Doyle v. Hasbro, Inc., 103 F.3d 186 (1st Cir. 1996) ....................................................................................... 8 Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1 (2004) ........................................................................................................ 5 Emrich v. Touche Ross & Company, 846 F.2d 1190 (9th Cir. 1988) .................................................................................... 4 Grigoryan v. Bank of Am. Corp., No. ED CV 12-01219 MMM, 2012 WL 10423215 (C.D. Cal. Dec. 31, 2012) ....... 10 In re GlenFed, Inc. Sec. Litig., 42 F.3d 1541 (9th Cir. 1994) .................................................................................... 10 Kearns v. Ford Motor Co., 567 F.3d 1120 (9th Cir. 2009) .................................................................................. 10 Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580 (9th Cir. 2008) ...................................................................................... 4 Love v. United States, 915 F.2d 1242 (9th Cir. 1990) .................................................................................... 4 McGinty v. Beranger Volkswagen, Inc., 633 F.2d 226 (1st Cir. 1980) ....................................................................................... 4 Nelson v. Equifax Info. Servs., LLC, 522 F.Supp.2d 1222 (C.D. Cal. 2007) ...................................................................... 10 Tanaka v. First Hawaiian Bank, 104 F.Supp.2d 1243 (D. Haw. 2000) .......................................................................... 9 U-Haul Int'l, Inc. v. Jartran, Inc., 793 F.2d 1034 (9th Cir. 1986) .................................................................................... 5 Case 2:16-cv-08281-PSG-KS Document 12 Filed 11/18/16 Page 4 of 20 Page ID #:133 iii TABLE OF AUTHORITIES - CASE #: 2:16-CV-08281-PSG-KS 794637.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 U.S. ex rel. Costner v. U.S., 317 F.3d 883 (8th Cir. 2003) ...................................................................................... 4 United States ex rel. Spicer v. Westbrook, 751 F.3d 354 (5th Cir. 2014) ...................................................................................... 5 Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097 (9th Cir. 2003) .................................................................................. 10 STATE CASES Dinosaur Development, Inc. v. White, 216 Cal.App.3d 1310 (1989) .................................................................................... 12 Lauriedale Associates, Ltd. v. Wilson, 7 Cal.App.4th 1439 (1992) ....................................................................................... 12 Oasis West Realty, LLC v. Goldman, 51 Cal.4th 811 (2011) ................................................................................................. 6 Progressive West Ins. Co. v. Yolo County Superior Court, 135 Cal.App.4th 263 (2005) ....................................................................................... 6 Shamsian v. Atlantic Richfield Co., 107 Cal.App.4th 967 (2003) ....................................................................................... 8 Tarmann v. State Farm Mut. Auto Ins. Co., 2 Cal.App. 4th 153 (1991) .......................................................................................... 9 FEDERAL STATUTES 15 U.S.C. § 1681 ............................................................................................................. 1 18 U.S.C. § 1961 ............................................................................................................. 1 18 U.S.C. § 1961(5) ........................................................................................................ 9 State Statutes Cal. Bus. & Prof. Code § 17200 ..................................................................................... 1 Federal Rules Fed. R. Civ. P. 8 .............................................................................................................. 3 Fed. R. Civ. P. 9 .................................................................................................... 4, 8, 11 Fed. R. Civ. P. 9(b) ....................................................................................................... 10 Fed. R. Civ. P. 12(b)(6) .............................................................................................. 4, 8 Fed. R. Civ. P. 12(e) ..................................................................................................... 12 Fed. R. Civ. P. 17(a)(1) ................................................................................................... 5 Case 2:16-cv-08281-PSG-KS Document 12 Filed 11/18/16 Page 5 of 20 Page ID #:134 1 MEMORANDUM OF POINTS AND AUTHORITIES - CASE #: 2:16-CV-08281-PSG-KS 794637.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION On October 4, 2016, Plaintiff Elizabeth Asante (“Plaintiff”) filed a small claims action against Ocwen Loan Servicing, LLC (“Ocwen”) wherein Plaintiff alleged that Ocwen, as the servicer of Plaintiff’s mortgage, breached the terms of the Promissory Note and Deed of Trust by purportedly miscalculating the interest rate of the loan, which increased her monthly payment by $50 a month from the period of December 1, 2013, through September 30, 2016. In connection with the filing of the form entitled “Plaintiff’s Claim and Order to Go to Small Claims Court” (“SC-100 form”), Plaintiff attached a document entitled “Plaintiff Elizabeth Asante et al Complaint for Breach of Contract, Damages and Injunctive Relief” (“Attachment”), which contains purported claims for violations of California’s Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 et seq. (“UCL”), violations of the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. (“FCRA”), violations of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961, et seq. (“RICO”), breach of contract, fraud, and unjust enrichment. For the purposes of this Motion the SC-100 form and the Attachment shall be referred to as the “Complaint.” While the Complaint identifies Dean Mensah as a co-plaintiff in the action, Mr. Mensah is not a borrower under the Note or Deed of Trust, nor is he a signatory or obligor under either agreement. In fact, Mr. Mensah has absolutely no interest in either the loan or the property securing the loan. Rather, Mr. Mensah is merely trustee on a junior lienholder’s deed of trust against the subject property, and for reasons that are unclear, Mr. Mensah has inserted himself into this action and is improperly attempting to litigate Ms. Asante’s claims on her behalf. As set forth here Mr. Mensah lacks standing to assert any claims against Ocwen, and as such, the Complaint in its entirety must be dismissed as to Mr. Mensah. Likewise, all of the claims asserted by Ms. Asante must also be dismissed on the grounds that such claims fail to state a claim upon which relief can be granted. Case 2:16-cv-08281-PSG-KS Document 12 Filed 11/18/16 Page 6 of 20 Page ID #:135 2 MEMORANDUM OF POINTS AND AUTHORITIES - CASE #: 2:16-CV-08281-PSG-KS 794637.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. STATEMENT OF FACTS On or about September 8, 2004 Plaintiff executed a Promissory Note (“Note”) in the amount of $427,000 in favor of GreenPoint Mortgage Funding, Inc. (Complaint, Exhibit “1A.”) The Note was secured by a Deed of Trust on the real property identified as 4136 Manhattan Beach Blvd., Lawndale, CA 90260 (“Property.”) A true and correct copy of the recorded Deed of Trust is attached to Ocwen’s Request for Judicial Notice (“RJN”) as Exhibit “1.” Thereafter, on June 14, 2012, Plaintiff obtained a loan in the amount of $24,000.00 from Americo Capital Holdings (“Americo”), which was secured by a Deed of Trust on the Property. See, RJN, Exhibit “2.” Mr. Mensah is the trustee of the Americo Deed of Trust. Pursuant to the terms of the Note, the loan is an Adjustable Rate Mortgage (“ARM”), which allows changes in the interest rate and the monthly payments. The Loan had an original interest rate of 6.250%, and pursuant to the terms of the Note, the interest rate adjusted on October 1, 2009, and every six months thereafter. (Complaint, Exhibit “5A.”) On or about December 1, 2013, Ocwen acquired the servicing rights of Plaintiff’s loan. (Complaint, ¶ 7.) In or about January 2016, Ocwen received notice from its tax service that there were delinquent taxes on Plaintiff’s Property and pursuant to the terms of the Deed of Trust, Ocwen requested that Plaintiff confirm that she had paid the taxes, or in the alternative, Plaintiff was required to pay the delinquent taxes and forward a copy of the receipt to Ocwen. (Complaint, Exhibit “5C.”) Ocwen further advised Plaintiff that if she failed to pay the taxes, Ocwen would pay the delinquent taxes and establish a forced placed escrow to recover the amounts paid by Ocwen. (Id.) While Plaintiff had approximately six (6) months for comply with the above- stated requirements, Plaintiff did not pay the delinquent taxes, nor did Plaintiff provide any receipts to Ocwen confirming that the taxes were paid. As such, Ocwen Case 2:16-cv-08281-PSG-KS Document 12 Filed 11/18/16 Page 7 of 20 Page ID #:136 3 MEMORANDUM OF POINTS AND AUTHORITIES - CASE #: 2:16-CV-08281-PSG-KS 794637.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 paid the delinquent taxes in order to protect its interest in the Property and established a forced placed escrow for the taxes. (Id.) As part of the forced placed escrow, Plaintiff’s monthly mortgage payment was increased to include the escrow component on the account. (Id.) While Plaintiff’s monthly payments were increased as the result of the forced placed escrow, Plaintiff failed to pay the entire monthly payment amounts due and owing for the months of May 2016 through September 2016, and as such, Ocwen accurately reported these delinquent payments to credit bureaus. (Complaint, ¶ 12, Exhibit “5C.”) Thereafter, Plaintiff purportedly sought to refinance the Note and/or her loan from Americo, but was purportedly denied because of the negative credit reporting related to her delinquent payments. (Complaint, ¶ 18.) As a result of the foregoing, Plaintiff and Mr. Mensah filed a small claims action against Ocwen in an attempt to extort Ocwen into removing the negative credit reporting from Plaintiff’s credit reports. III. LEGAL AUTHORITY Pursuant to FRCP 8, a complaint “must contain a short and plain statement of the claim showing that the pleader is entitled to relief…” While the Federal Rules adopt a flexible pleading policy, every complaint must, at a minimum, “give the defendant fair notice of what the…claim is and the grounds upon which it rests.” Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). Although a complaint does not need detailed factual allegations, “a plaintiff’s obligation to provide the ‘grounds’ for his ‘entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (citation omitted). Indeed, a complaint must “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at Case 2:16-cv-08281-PSG-KS Document 12 Filed 11/18/16 Page 8 of 20 Page ID #:137 4 MEMORANDUM OF POINTS AND AUTHORITIES - CASE #: 2:16-CV-08281-PSG-KS 794637.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 570). Likewise, a complaint that offers only “naked assertion[s]” devoid of “further factual enhancement” will not suffice. Id. Additionally, FRCP, Rule 9 imposes a heightened pleading requirement for allegations of fraud in order to give notice to the defendant of the plaintiff’s claim, and to protect defendant, whose reputation may be harmed by meritless claims of fraud, and to discourage “strike suits,” as well as to prevent the filing of suits that simply hope to uncover relevant information during discovery. McGinty v. Beranger Volkswagen, Inc., 633 F.2d 226, 228-29 & n. 2 (1st Cir. 1980). This particularity requirement demands a higher degree of notice than that required for other claims. The claim must identify who, what, where, when, and how. U.S. ex rel. Costner v. U.S. 317 F.3d 883, 888 (8th Cir. 2003). Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a complaint for “failure to state a claim upon which relief can be granted.” See Fed. R. Civ. P. 12(b)(6). A complaint may be dismissed as a matter of law for failure to state a claim for two reasons: (1) lack of a cognizable legal theory; or (2) insufficient facts under a cognizable legal theory. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). In determining whether the complaint states a claim on which relief may be granted, its allegations of material fact must be taken as true and construed in the light most favorable to plaintiffs. See Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1990); see also Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008). The court may properly look beyond the complaint only to items in the record of the case or to matters of general public record. Emrich v. Touche Ross & Company, 846 F.2d 1190, 1198 (9th Cir. 1988). If the factual allegations in a complaint dot not raise the “right to relief above the speculative level,” the complaint may be dismissed for failure to state a claim under Rule 12(b)(6). Twombly, 550 U.S. at 555. Case 2:16-cv-08281-PSG-KS Document 12 Filed 11/18/16 Page 9 of 20 Page ID #:138 5 MEMORANDUM OF POINTS AND AUTHORITIES - CASE #: 2:16-CV-08281-PSG-KS 794637.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IV. ARGUMENT A. Dean Mensah Lacks Standing to Assert Any Claims Against Ocwen Standing jurisprudence is comprised of two strands: Article III standing, which enforces the Constitution's case-or-controversy requirement, and prudential standing, which embodies “judicially self-imposed limits on the exercise of federal jurisdiction.” Elk Grove Unified School Dist. v. Newdow 542 U.S. 1, 11-12 (2004). The Article III limitations require that the plaintiff demonstrate that the conduct of which he complains has caused him to suffer an “injury in fact” that a favorable judgment will redress. Id. Prudential standing encompasses “the general prohibition on a litigant's raising another person's legal rights, the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches, and the requirement that a plaintiff's complaint fall within the zone of interests protected by the law invoked.” Id. Likewise, FRCP Rule 17(a)(1) requires that every action “…be prosecuted in the name of the real party in interest.” A “real party in interest” is the person who has the right to sue under the substantive law. Stated differently, a “real party in interest” is the person holding title to the claim or property involved, as opposed to others who may be interested in or benefit by the litigation. United States ex rel. Spicer v. Westbrook 751 F.3d 354, 362 (5th Cir. 2014); U-Haul Int'l, Inc. v. Jartran, Inc. 793 F.2d 1034, 1038 (9th Cir. 1986). As evidenced by the face of the Complaint, it is undisputed that Ms. Asante is the sole borrower under the Note and Deed of Trust. (Complaint, ¶ 7, 18, Exhibits “1A,” “5A,” “5B,” “5C,” RJN, Exhibit 1.) The Complaint does not allege that Mr. Mensah is a signatory or obligor to either the Note or Deed of Trust, nor does not Complaint allege that Mr. Mensah had any rights or obligations under either agreement. While Mr. Mensah alleges in conclusory fashion that he has an interest in the Property (Complaint, ¶ 1), this assertion is factually incorrect. Case 2:16-cv-08281-PSG-KS Document 12 Filed 11/18/16 Page 10 of 20 Page ID #:139 6 MEMORANDUM OF POINTS AND AUTHORITIES - CASE #: 2:16-CV-08281-PSG-KS 794637.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Simply stated, Mr. Mensah standing as a trustee of a deed of trust for a junior lienholder does not constitute an “interest” in the Property, nor does it satisfy the Article III limitations, which require that the he demonstrate that as a result of Ocwen’s conduct, he has suffered an “injury in fact” that a favorable judgment will redress. Likewise, Mr. Mensah has not and cannot establish that he is a “real party in interest.” Rather, it is evident that Mr. Mensah is attempting to litigate the rights of Ms. Asante, which is expressly prohibited as a matter of law. Mr. Mensah’s failure to establish that he has proper standing to prosecute any of the claims asserted against Ocwen in the Complaint requires that the Court dismiss the Complaint in its entirety on behalf of Mr. Mensah and as against Ocwen. B. Each of Plaintiff’s Purported Causes of Action Are Fatally Flawed 1. Plaintiff’s Breach of Contract Claim Fails as a Matter of Law A party alleging breach of contract must establish (1) the existence of a contract, (2) the complaining party's own performance or excuse for nonperformance, (3) the other party's breach, and (4) resulting damages suffered by the complaining party. Oasis West Realty, LLC v. Goldman,51 Cal.4th 811, 821 (2011). As evidenced by the face of Plaintiff’s Complaint, Plaintiff has failed to allege any of the requisite elements necessary to state a breach of contract claim. Rather, Plaintiff’s breach of contract claim is merely a hodgepodge of conflicting and confusing allegations that purport to allege that Ocwen breached the Note and Deed of Trust by establishing a forced place escrow account as a result of Plaintiff’s failure to pay her delinquent taxes and/or that Ocwen has incorrectly calculated the LIBOR rate on Plaintiff’s loan since it took over the servicing of the loan. As a preliminary matter, while Plaintiff contends that Ocwen has breached both the Note and Deed of Trust, Plaintiff has failed to allege or identify any specific terms of either agreement that Ocwen has purportedly breached. It is well settled that in order to state a claim for breach of contract, the complaint must identify the specific provision of the contract allegedly breached by the defendant. Progressive West Ins. Case 2:16-cv-08281-PSG-KS Document 12 Filed 11/18/16 Page 11 of 20 Page ID #:140 7 MEMORANDUM OF POINTS AND AUTHORITIES - CASE #: 2:16-CV-08281-PSG-KS 794637.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Co. v. Yolo County Superior Court 135 Cal.App.4th 263, 281 (2005). While the Complaint identifies various provisions of the Deed of Trust, Plaintiff does not allege any facts to establish that Ocwen has breached any of these provisions. Rather, Plaintiff contends that Ocwen was not obligated to pay the delinquent taxes until there is was a tax default and tax lien is placed on the Property. (Complaint, ¶ 11.) According to Plaintiff’s faulty logic, since no tax lien was recorded against the Property, Ocwen should not have paid the delinquent taxes or established the forced place escrow. This assertion is factually incorrect and directly contradicted by the express terms of the Deed of Trust. Specifically, section 3 of the Deed of Trust requires that Ms. Asante pay all taxes and other assessments when due, and to provide proof of such payment upon request. If Ms. Asante fails to make the required payment, Ocwen is entitled to make the payment on behalf of Ms. Asante and Ms. Asante is then obligated to repay Ocwen for any amounts paid. Section 3 expressly states that “Borrower’s obligation to make such payments and to provide receipts shall for all purposed be deemed to be a covenant and agreement contained in this Security Agreement, as the phrase ‘covenant and agreement’ is used in Section 9. If Borrower is obligated to pay Escrow Items [taxes] directly…and Borrower fails to pay the amount due for an Escrow Item, Lender may exercise its rights under section 9 and pay such amount and Borrower shall then be obligated under Section 9 to repay to Lender any such amount.” (RJN, Exhibit “1.”) With respect to Plaintiff’s purported LIBOR claims, these allegations are unintelligible. Plaintiff has failed to allege any facts that establish that Ocwen improperly calculated the interest rate on Plaintiff’s loan, and Plaintiff’s conclusory assertion that Ocwen had miscalculated the LIBOR interest rate for a period of 3 years and overcharged Plaintiff $50 per month during that time is insufficient to state a cause of action for breach of contract. Case 2:16-cv-08281-PSG-KS Document 12 Filed 11/18/16 Page 12 of 20 Page ID #:141 8 MEMORANDUM OF POINTS AND AUTHORITIES - CASE #: 2:16-CV-08281-PSG-KS 794637.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Irrespective of the foregoing, Plaintiff’s Complaint also fails to identify any specific provisions of the Note or Deed of Trust that Ocwen purportedly breached with respect to the her LIBOR claim, nor does Plaintiff allege any facts that establish that Ocwen engaged in any conduct that would constitute a breach of any of its obligations or duties under these agreements. As such, Plaintiff’s cause of action for breach of contract fails to state a claim as a matter of law, and therefore, must be dismissed under Rule 12(b)(6). 2. The Complaint Fails to State a Claim for Fraud While Plaintiff’s Complaint contains a heading entitled “Factual Specificity Required for Fraud Based Claims” and alleges thereunder that she is “also asserting a state law claim for fraud,” Plaintiff fails to assert any allegations that would establish or support a claim for fraud. In order to state a cause of action for fraud, a plaintiff must establish that (1) the defendant made a misrepresentation of a past or existing material fact, (2) without reasonable ground for believing it to be true, (3) with intent to induce another's reliance on the fact misrepresented, (4) ignorance of the truth and justifiable reliance on the misrepresentation by the party to whom it was directed; and (5) resulting damage. Shamsian v. Atlantic Richfield Co. 107 Cal.App.4th 967, 983 (2003). Additionally, as discussed above, FRCP, Rule 9 imposes a heightened pleading requirement for allegations of fraud. “[M]ere allegations of fraud, corruption or conspiracy, averments to conditions of mind, or referrals to plans and schemes are too conclusional to satisfy the particularity requirement, no matter how many times such accusations are repeated.” Doyle v. Hasbro, Inc. 103 F.3d 186, 194 (1st Cir. 1996). Furthermore, in cases involving a corporate entity, the specificity requirement is even more stringent: “[t]he requirement of specificity in a fraud action against a corporation requires plaintiff to allege the names of the persons who allegedly made the fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, Case 2:16-cv-08281-PSG-KS Document 12 Filed 11/18/16 Page 13 of 20 Page ID #:142 9 MEMORANDUM OF POINTS AND AUTHORITIES - CASE #: 2:16-CV-08281-PSG-KS 794637.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and when it was said or written.” Tarmann v. State Farm Mut. Auto Ins. Co. 2 Cal.App. 4th 153, 157 (1991). A thorough review of Plaintiff’s Complaint demonstrates that Plaintiff has failed to assert a viable cause of action for fraud against Ocwen. Specifically, Plaintiff’s Complaint does not contain any allegations that set forth the requisite elements necessary to state a claim for fraud. The mere assertion that Ocwen has engaged in “fraudulent behavior” is not sufficient to state a claim for fraud. As such, Plaintiff’s fraud claim fails as a matter of law. 3. Plaintiff Has Not Alleged a Claim for Violation of RICO While Plaintiff alleges that the second and third causes of action allege violations of RICO (Complaint, ¶ 34), Plaintiff’s Complaint does not appear to contain any such causes of action. Likewise, the Complaint is devoid of any allegations that establish that Ocwen has engaged in any conduct that would constitute a RICO violation. Specifically, a civil RICO claim requires (1) conduct (2) of an “enterprise” (3) through a “pattern” (4) of racketeering activity (or “predicate acts”) (5) causing injury to the plaintiff's “business or property.” Tanaka v. First Hawaiian Bank, 104 F.Supp.2d 1243, 1245 (D. Haw. 2000) A “pattern” for RICO purposes requires “at least two acts of racketeering activity ... the last of which occurred within ten years ... after a prior act of racketeering activity.” 18 U.S.C. § 1961(5). Since Plaintiff has not asserted any allegations establishing the requisite elements necessary to state a RICO claim, all such claims are fatally defective and must be dismissed. 4. Plaintiff Has Not Alleged a Claim for Violation of FCRA Similar to Plaintiff’s RICO claim, while Plaintiff has asserted that Ocwen has violated the FCRA (Complaint, ¶¶ 16-18), Plaintiff has failed to allege any facts that establish a claim for violation of the FCRA. Merely identifying the statute and contending that Ocwen violated it is not sufficient to state a cause of action. As discussed above, “a pleading that offers ‘labels and conclusions’ or ‘a formulaic Case 2:16-cv-08281-PSG-KS Document 12 Filed 11/18/16 Page 14 of 20 Page ID #:143 10 MEMORANDUM OF POINTS AND AUTHORITIES - CASE #: 2:16-CV-08281-PSG-KS 794637.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 recitation of the elements of a cause of action will not do.’” Iqbal, 556 U.S. at 678. Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual enhancement.” Id. Notwithstanding the foregoing, Plaintiff is barred from prosecuting any claim under the FCRA because the FCRA does not allow for a private right of action. It is firmly established that with the exception of a narrow subset of claims under § 1681s- 2(b), the FCRA affords no private right of action. Grigoryan v. Bank of Am. Corp., No. ED CV 12-01219 MMM, 2012 WL 10423215, at *6 (C.D. Cal. Dec. 31, 2012); Nelson v. Equifax Info. Servs., LLC, 522 F.Supp.2d 1222, 1230 (C.D. Cal. 2007). Since Plaintiff has not alleged a violation under section 1681s-2(b), Plaintiff’s claim does not fall within the exception identified above, and as such, Plaintiff’s claim is barred because there is no private right of action for the alleged violation of the FCRA. 5. Plaintiff’s UCL Claim is Fatally Defective While Plaintiff alleges that her UCL claim is being asserted under the “fraudulent” prong of the statute (Complaint, ¶ 42), it is well settled that where a UCL claim is grounded in or sounds in fraud, the pleading as a whole must satisfy the particularity requirement of FRCP Rule 9(b). Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1103-04 (9th Cir. 2003); Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir. 2009). To be alleged with particularity under Rule 9(b), a plaintiff must allege “the who, what, when, where, and how” of the alleged fraudulent conduct, (Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir. 1997)), and “set forth an explanation as to why [a] statement or omission complained of was false and misleading.” In re GlenFed, Inc. Sec. Litig., 42 F.3d 1541, 1548 (9th Cir. 1994). In other words, “the circumstances constituting the alleged fraud [must] be specific enough to give defendants notice of the particular misconduct ... so that they can defend against the charge and not just deny that they have done anything wrong.” Vess, 317 F.3d at 1106. As discussed above, Plaintiff’s entire Complaint, as well as her UCL claim, fail to Case 2:16-cv-08281-PSG-KS Document 12 Filed 11/18/16 Page 15 of 20 Page ID #:144 11 MEMORANDUM OF POINTS AND AUTHORITIES - CASE #: 2:16-CV-08281-PSG-KS 794637.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 comply with the requirements of FRCP Rule 9, and as such, are subject to a motion to dismiss. In addition to the foregoing, Plaintiff’s cause of action for violation of the UCL is merely a “cut and paste” of the factual allegations and legal analysis set forth in Bias v. Wells Fargo & Co. 942 F.Supp.2d 915 (N.D. Cal. 2013). Notably, it appears that Plaintiff has simply copied certain portions of the Bias case and replaced the court’s references to “Wells Fargo” with “Ocwen” and/or “Defendants.” In Bias, the gravamen of the plaintiff’s claims were based on the assessment of default fees charged to the homeowners that were allegedly marked-up from the actual fees incurred by the lender. Bias, 942 F.Supp.2d at 923. While Ms. Asante’s Complaint does not contain any allegations regarding the imposition of improper fees or “marked-up fees,” the entirety of the allegations contained in Plaintiff’s UCL claim assert that Ocwen imposed “marked-up fees” on delinquent borrowers. Specifically, Plaintiff alleges in paragraph 43 of the Complaint that “Ocwen ‘affirmatively mislead delinquent borrowers into paying marked-up fees.” In paragraph 44, Plaintiff asserts that “Defendants send delinquent borrowers monthly statements which disguise the fact that the amounts Ocwen represents as being owned have been marked-up beyond the actual costs of services, violating the disclosures in the mortgage contract. Like paragraph 45 states “According to Plaintiffs, with the ‘true character, quality, and nature of their assessment of marked- up default related service fees’ concealed from unsuspecting borrowers, Defendants use the full force of their position as a major financial institution to sell the fraud and collect the prohibited fees.” Simply stated, these allegations are nonsensical and have no application to Ocwen nor its servicing of Plaintiff’s loan. Based on the foregoing, it is evident that Plaintiff’s Complaint does not contain any allegations that demonstrate that Ocwen has engaged in any conduct that constitutes a violation of the UCL, and as such, Plaintiff’s UCL claim fails as a matter of law. Case 2:16-cv-08281-PSG-KS Document 12 Filed 11/18/16 Page 16 of 20 Page ID #:145 12 MEMORANDUM OF POINTS AND AUTHORITIES - CASE #: 2:16-CV-08281-PSG-KS 794637.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6. Unjust Enrichment is Not a Recognized Cause of Action California does not recognize a cause of action for unjust enrichment. The phrase “unjust enrichment” is not a cause of action, nor does it describe a theory of recovery, but rather, is merely a term applied by the court when the result of a failure to make restitution under circumstances where it is equitable to do so. Lauriedale Associates, Ltd. v. Wilson, 7 Cal.App.4th 1439, 1448 (1992.) Unjust enrichment is “a general principle, underlying various legal doctrines and remedies” rather than a remedy itself. Dinosaur Development, Inc. v. White (1989) 216 Cal.App.3d 1310, 1315, 265 (1989). Since Plaintiff has not alleged a viable cause of action that would support the remedy of restitution, Plaintiff’s claim for unjust enrichment is fatally defective and must be dismissed. C. Alternatively, the Court Should Order Plaintiff to Provide a More Definite Statement of Claims. Pursuant to FRCP Rule 12(e), a defendant may make a motion for a more definite statement of Plaintiff’s claims if the Complaint is so vague or ambiguous that a Defendant cannot reasonably make a response. In light of Plaintiff’s numerous legal conclusions and the absence of any specific factual allegations of wrongdoing against Ocwen, should the Court elect to deny the instant Motion to Dismiss, Ocwen respectfully requests that the Court require Plaintiff to make a more definite statement of her claims. /// /// Case 2:16-cv-08281-PSG-KS Document 12 Filed 11/18/16 Page 17 of 20 Page ID #:146 13 MEMORANDUM OF POINTS AND AUTHORITIES - CASE #: 2:16-CV-08281-PSG-KS 794637.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 V. CONCLUSION Based on the arguments set forth herein above, Ocwen respectfully requests that the Court grant its Motion to Dismiss as to all causes of action alleged in Plaintiff’s Complaint and dismiss the entire Complaint with prejudice, or alternatively, order that Plaintiff provide Ocwen with a more definite statement of her claims. DATED: November 18, 2016 McGLINCHEY STAFFORD By: /s/ Adam S. Hamburg ADAM S. HAMBURG BRIAN A. PAINO Attorneys for Defendant OCWEN LOAN SERVICING, LLC Case 2:16-cv-08281-PSG-KS Document 12 Filed 11/18/16 Page 18 of 20 Page ID #:147 14 MEMORANDUM OF POINTS AND AUTHORITIES - CASE #: 2:16-CV-08281-PSG-KS 794637.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) I, Marina Hegel, declare: I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action. My business address is 18201 Von Karman Ave., Suite 350, Irvine, California 92612. On November 18, 2016, I served the document(s) described as DEFENDANT OCWEN LOAN SERVICING, LLC’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT OR ALTERNATIVELY, FOR A MORE DEFINITE STATEMENT PURSUANT TO FRCP 12(b)(6) and 12 (e); MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF as follows: BY MAIL: As follows: FEDERAL - I deposited such envelope in the U.S. mail at Irvine, California, with postage thereon fully prepaid, BY CM/ECF NOTICE OF ELECTRONIC FILING: I caused said document(s) to be served by means of this Court’s Electronic transmission of the Notice of Electronic Filing through the Court’s transmission facilities, to the parties and/or counsel who are registered CM/ECF users set forth in the service list obtained from this Court. Pursuant to Electronic Filing Court Order, I hereby certify that the above documents(s) was uploaded to the website and will be posted on the website by the close of the next business day and the webmaster will give e-mail notification to all parties. FEDERAL: I declare that I employed in the office of a member of the State Bar of this Court at whose direction the service was made. Executed on November 18, 2016, at Irvine, California. Marina Hegel Marina Hegel Case 2:16-cv-08281-PSG-KS Document 12 Filed 11/18/16 Page 19 of 20 Page ID #:148 15 MEMORANDUM OF POINTS AND AUTHORITIES - CASE #: 2:16-CV-08281-PSG-KS 794637.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SERVICE LIST U.S. District Court Case No. 2:16-cv-08281-PSG-KS ELIZABETH ASANTE, et al. v. OCWEN LOAN SERVICING, LLC, et al. File # 104938.1885 Elizabeth Asante 4136 Manhattan Beach Blvd., Apt. A Lawndale, CA 90260 Plaintiff, In Pro Per Tel: (818) 730-7785 Dean A. Mensah 16940 Chatsworth Street, Unit 201 Granada Hills, CA 91344 Plaintiff, In Pro Per Tel: (818) 730-7785 Case 2:16-cv-08281-PSG-KS Document 12 Filed 11/18/16 Page 20 of 20 Page ID #:149 1 [PROPOSED] ORDER GRANTING MOTION TO DISMISS COMPLAINT - CASE #: 2:16-CV-08281-PSG-KS 794637.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION ELIZABETH ASANTE; DEAN A. MENSAH, Plaintiffs, v. OCWEN LOAN SERVICING, LLC, Defendants. Case No.: 2:16-cv-08281-PSG-KS Hon. Philip S. Gutierrez [PROPOSED] ORDER GRANTING DEFENDANT OCWEN LOAN SERVICING, LLC’S MOTION TO DISMISS PLAINTIFFS’ COMPLAINT OR ALTERNATIVELY, FOR A MORE DEFINITE STATEMENT PURSUANT TO FRCP 12(b)(6) and 12 (e) Hearing: Date: January 30, 2017 Time: 1:30 p.m. Ctrm. 880 State Court Case No. 16IWSC03697 Action Filed: October 4, 2016 Trial Date: November 29, 2016 The motion of Defendant OCWEN LOAN SERVICING, LLC (“Defendant”) to dismiss Plaintiffs ELIZABETH ASANTE and DEAN A. MENSAH’s (“Plaintiffs”) Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) (the “Motion”) came on regularly for hearing before the Honorable Philip S. Gutierrez at the date and time set forth above. Case 2:16-cv-08281-PSG-KS Document 12-1 Filed 11/18/16 Page 1 of 4 Page ID #:150 2 [PROPOSED] ORDER GRANTING MOTION TO DISMISS COMPLAINT - CASE #: 2:16-CV-08281-PSG-KS 794637.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 After having considered the moving papers, opposition papers, reply papers, and oral argument, if any, and GOOD CAUSE APPEARING THEREFOR, IT IS ORDERED THAT the Motion is GRANTED. IT IS FURTHER ORDERED THAT this action is hereby dismissed with prejudice. IT IS SO ORDERED. Dated: _________________________ _________________________________ HON. PHILIP S. GUTIERREZ UNITED STATES DISTRICT JUDGE Case 2:16-cv-08281-PSG-KS Document 12-1 Filed 11/18/16 Page 2 of 4 Page ID #:151 3 [PROPOSED] ORDER GRANTING MOTION TO DISMISS COMPLAINT - CASE #: 2:16-CV-08281-PSG-KS 794637.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) I, Marina Hegel, declare: I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action. My business address is 18201 Von Karman Ave., Suite 350, Irvine, California 92612. On November 18, 2016, I served the document(s) described as [PROPOSED] ORDER GRANTING DEFENDANT OCWEN LOAN SERVICING, LLC’S MOTION TO DISMISS PLAINTIFFS’ COMPLAINT OR ALTERNATIVELY, FOR A MORE DEFINITE STATEMENT PURSUANT TO FRCP 12(b)(6) and 12 (e) as follows: BY MAIL: As follows: FEDERAL - I deposited such envelope in the U.S. mail at Irvine, California, with postage thereon fully prepaid, BY CM/ECF NOTICE OF ELECTRONIC FILING: I caused said document(s) to be served by means of this Court’s Electronic transmission of the Notice of Electronic Filing through the Court’s transmission facilities, to the parties and/or counsel who are registered CM/ECF users set forth in the service list obtained from this Court. Pursuant to Electronic Filing Court Order, I hereby certify that the above documents(s) was uploaded to the website and will be posted on the website by the close of the next business day and the webmaster will give e-mail notification to all parties. FEDERAL: I declare that I employed in the office of a member of the State Bar of this Court at whose direction the service was made. Executed on November 18, 2016, at Irvine, California. Marina Hegel Marina Hegel Case 2:16-cv-08281-PSG-KS Document 12-1 Filed 11/18/16 Page 3 of 4 Page ID #:152 4 [PROPOSED] ORDER GRANTING MOTION TO DISMISS COMPLAINT - CASE #: 2:16-CV-08281-PSG-KS 794637.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SERVICE LIST U.S. District Court Case No. 2:16-cv-08281-PSG-KS ELIZABETH ASANTE, et al. v. OCWEN LOAN SERVICING, LLC, et al. File # 104938.1885 Elizabeth Asante 4136 Manhattan Beach Blvd., Apt. A Lawndale, CA 90260 Plaintiff, In Pro Per Tel: (818) 730-7785 Dean A. Mensah 16940 Chatsworth Street, Unit 201 Granada Hills, CA 91344 Plaintiff, In Pro Per Tel: (818) 730-7785 Case 2:16-cv-08281-PSG-KS Document 12-1 Filed 11/18/16 Page 4 of 4 Page ID #:153