Ramirez et al v. Greenpoint Mortgage Funding, Inc.

MOTION to Dismiss PLAINTIFFS' FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

N.D. Cal.April 11, 2008

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 NOTICE OF MOTION TO DISMISS CASE NO. 3:08-cv-00369-TEH RAOUL D. KENNEDY (Bar No. 40892) JOREN S. BASS (Bar No. 208143) SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP Four Embarcadero Center, Suite 3800 San Francisco, California 94111-4144 Telephone: (415) 984-6400 Facsimile: (415) 984-2698 Email: rkennedy@skadden.com, jbass@skadden.com ANDREW L. SANDLER (Admitted Pro Hac Vice) ANAND S. RAMAN (Admitted Pro Hac Vice) CAITLIN M. KASMAR (Admitted Pro Hac Vice) SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP 1440 New York Avenue, N.W. Washington, D.C. 20005 Telephone: (202) 371-7000 Facsimile: (202) 393-5760 Email: asandler@skadden.com, araman@skadden.com, ckasmar@skadden.com Attorneys for DEFENDANT GREENPOINT MORTGAGE FUNDING, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ANA RAMIREZ, ISMAEL RAMIREZ and JORGE SALAZAR, on behalf of themselves and all others similarly situated, Plaintiffs, v. GREENPOINT MORTGAGE FUNDING, INC., Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. 3:08-cv-00369-TEH CLASS ACTION (1) NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS' FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; and (2) [PROPOSED] ORDER (lodged under separate cover) Date: May 19, 2008 Time: 10:00 a.m. Place: Courtroom 12 Judge: The Honorable Thelton E. Henderson Case 3:08-cv-00369-TEH Document 34 Filed 04/11/2008 Page 1 of 21 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 -i- NOTICE OF MOTION TO DISMISS CASE NO. 3:08-cv-00369-TEH NOTICE OF MOTION AND MOTION TO PLAINTIFFS AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE THAT at 10:00 a.m. on Monday, May 19, 2008, or as soon thereafter as the matter may be heard, Defendant GreenPoint Mortgage Funding, Inc. will move this Court to dismiss Plaintiffs' First Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted. This motion is based on this Notice of Motion and Motion, the attached Memorandum of Points and Authorities, and all exhibits attached thereto. DATED: April 11, 2008 SKADDEN, ARPS, SLATE, MEAGHER & FLOM, LLP By: /s/ Raoul D. Kennedy Raoul D. Kennedy Attorneys for DEFENDANT GREENPOINT MORTGAGE FUNDING, INC. Case 3:08-cv-00369-TEH Document 34 Filed 04/11/2008 Page 2 of 21 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- NOTICE OF MOTION TO DISMISS CASE NO. 3:08-cv-00369-TEH TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES..................................................................................................... iii MEMORANDUM OF POINTS AND AUTHORITIES ..............................................................1 I. INTRODUCTION...........................................................................................................1 II. LEGAL STANDARD .....................................................................................................2 III. ARGUMENT ..................................................................................................................3 A. Neither The FHA Nor The ECOA Permits Disparate Impact Claims ....................3 B. Plaintiffs Fail To Assert A Cognizable Disparate Impact Claim ...........................5 1. Overview Of Disparate Impact .................................................................6 2. Plaintiffs Do Not State A Disparate Impact Claim Because They Do Not Point To A Specific Policy Or Practice ..............................................7 3. Plaintiffs Fail To Allege A Disparate Impact ..........................................10 C. The Ramirezes' Claims Are Time-Barred And Must Be Dismissed ....................11 1. Each Of Plaintiffs' Claims Is Subject To A Two-Year Statute Of Limitation...............................................................................................12 2. The Tolling Allegations Do Not Save The Ramirezes' Claims ................12 (a) The Discovery Rule ....................................................................12 (b) Fraudulent Concealment .............................................................13 IV. CONCLUSION .............................................................................................................15 Case 3:08-cv-00369-TEH Document 34 Filed 04/11/2008 Page 3 of 21 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 -iii- NOTICE OF MOTION TO DISMISS CASE NO. 3:08-cv-00369-TEH TABLE OF AUTHORITIES PAGE(S) CASES AFSCME v. State of Washington, 770 F.2d 1401 (9th Cir. 1985) .................................................................................................... 9 Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) ................................................................................................................... 6 Anderson v. Douglas & Lomason Co., 26 F.3d 1277 (5th Cir. 1994) ...................................................................................................... 9 Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007) ........................................................................................................... 2, 3 Budnick v. Town of Carefree, No. 06-15841, 2008 U.S. App. LEXIS 5152 (9th Cir. Mar. 11, 2008)......................................... 3 Conley v. Gibson, 355 U.S. 41 (1957)..................................................................................................................... 3 Dothard v. Rawlinson, 433 U.S. 321 (1977) ................................................................................................................... 6 Edwards v. Johnston County Health Department, 885 F.2d 1215 (4th Cir. 1989) .................................................................................................. 11 Garcia v. Johanns, 444 F.3d 625 (D.C. Cir. 2006)................................................................................................ 4, 7 Gerdom v. Continental Airlines, Inc., 692 F.2d 602 (9th Cir. 1982) ...................................................................................................... 6 Gibson v. United States, 781 F.2d 1334 (9th Cir. 1986) .................................................................................................. 14 Gregory v. Litton Systems, Inc., 472 F.2d 631 (9th Cir. 1972) ...................................................................................................... 6 Griggs v. Duke Power Co., 401 U.S. 424 (1971) ............................................................................................................... 4, 6 Harriss v. Pan American World Airways, Inc., 649 F.2d 670 (9th Cir. 1980) ...................................................................................................... 6 Hipp v. Liberty National Life Insurance Co., 252 F.3d 1208 (11th Cir. 2001) ................................................................................................ 15 Keith v. Volpe, 858 F.2d 467 (9th Cir. 1988) ...................................................................................................... 3 Case 3:08-cv-00369-TEH Document 34 Filed 04/11/2008 Page 4 of 21 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- NOTICE OF MOTION TO DISMISS CASE NO. 3:08-cv-00369-TEH Khalil v. Farash Corp., 452 F. Supp. 2d 203 (W.D.N.Y. 2006) ....................................................................................... 7 Knapp v. Eagle Property Management. Corp., 54 F.3d 1272 (7th Cir. 1995) ...................................................................................................... 7 Larson v. Northrup Corp., 21 F.3d 1164 (D.C. Cir. 1994).................................................................................................. 13 Lierboe v. State Farm Mutual Automobile Insurance Co., 350 F.3d 1018 (9th Cir. 2003) .................................................................................................. 15 Lockard v. Pizza Hut, Inc., 162 F.3d 1062 (10th Cir. 1998) ................................................................................................ 10 Moore v. Hughes Helicopters, Inc., 708 F.2d 475 (9th Cir. 1983) .................................................................................................... 11 NAACP v. American Family Mutual Insurance Co., 978 F.2d 287 (7th Cir. 1992) .................................................................................................. 6, 8 Neff v. American Dairy Queen Corp., 58 F.3d 1063 (5th Cir. 1995) .................................................................................................... 10 Orr v. Bank of America, NT & SA, 285 F.3d 764 (9th Cir. 2002) .................................................................................................... 12 Ove v. Gwinn, 264 F.3d 817 (9th Cir. 2001) ...................................................................................................... 3 Rambus Inc. v. Samsung Electronics Co., No. C-05-02298, 2007 U.S. Dist. LEXIS 3088 (N.D. Cal. Jan. 4, 2007) ............................. 13, 14 Rutledge v. Boston Woven Hose & Rubber Co., 576 F.2d 248 (9th Cir. 1978) .................................................................................................... 13 Smith v. City of Jackson, 544 U.S. 228 (2005) ....................................................................................................3, 4, 5, 8, 9 Spaulding v. University of Washington, 740 F.2d 686 (9th Cir. 1984) ................................................................................................ 7, 10 Stout v. Potter, 276 F.3d 1118 (9th Cir. 2002) ...................................................................................... 5, 8, 9, 10 Stutz Motor Car of America, Inc. v. Reebok International, Ltd., 909 F. Supp. 1353 (C.D. Cal. 1995).......................................................................................... 14 Volk v. D.A. Davidson & Co., 816 F.2d 1406 (9th Cir. 1987) .................................................................................................. 14 Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989) ................................................................................................5, 8, 9, 10, 11 Case 3:08-cv-00369-TEH Document 34 Filed 04/11/2008 Page 5 of 21 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- NOTICE OF MOTION TO DISMISS CASE NO. 3:08-cv-00369-TEH Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (1988) ................................................................................................................... 8 STATUTES 12 C.F.R. § 203.5......................................................................................................................... 13 15 U.S.C. § 1691 et seq. ................................................................................................................. 2 15 U.S.C.S. § 1691e(f) ................................................................................................................. 12 42 U.S.C. § 2000e-2....................................................................................................................... 6 42 U.S.C. § 2000e-2(a)................................................................................................................... 4 42 U.S.C. § 2000e-2(a)(2) .............................................................................................................. 4 42 U.S.C. § 3601............................................................................................................................ 2 42 U.S.C. § 3613(a)(1)(A)............................................................................................................ 12 OTHER AUTHORITIES Peter N. Cubita & Michelle Hartmann, The ECOA Discrimination Proscription and Disparate Impact Interpreting the Meaning of the Words That Actually Are There, 61 Bus. Law. 829 (2006) ............................................................................................................ 5 Ronald Turner, Thirty Years of Title VII's Regulatory Regime: Rights, Theories, and Realities, 46 Ala. L. Rev. 375, 456 (1995) ................................................................................................. 6 Case 3:08-cv-00369-TEH Document 34 Filed 04/11/2008 Page 6 of 21 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 -1- NOTICE OF MOTION TO DISMISS CASE NO. 3:08-cv-00369-TEH MEMORANDUM OF POINTS AND AUTHORITIES Defendant GreenPoint Mortgage Funding, Inc. ("GreenPoint") moves this Court, pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss the First Amended Complaint ("Complaint") in this case, which alleges disparate impact discrimination,1 for failure to state a claim upon which relief can be granted. I. INTRODUCTION This putative class action filed by plaintiffs Ana and Ismael Ramirez and Jorge Salazar ("Plaintiffs") is one of a number of cookie cutter cases filed against mortgage lenders in courts across the country in the past year. See, e.g., Alleyne v. Flagstar Bank, FSB, No. 07cv12128 (D. Mass.) (filed 11/13/07); Garcia v. Countrywide Fin. Corp., No. 07cv01161 (C.D. Cal.) (filed 9/12/07); Zamora v. Wachovia Corp., No. 3:07cv4603 (N.D. Cal.) (filed 9/5/07); Taylor v. Accredited Home Lenders, Inc., No. 07cv01732 (S.D. Cal.) (filed 8/31/07); Ventura v. Wells Fargo Bank, N.A., No. 3:07cv04309 (N.D. Cal.) (filed 8/21/07); Sanchez v. Wash. Mut., Inc., No. 2:07cv05542 (C.D. Cal) (filed 8/13/07). In this installment of the series, both the Ramirezes and Mr. Salazar allege that they obtained loans to refinance their existing home loans through mortgage brokers. (Compl. ¶¶ 56, 67.) The Ramirezes obtained a mortgage loan through their broker, First Call, with a 30-year term and an APR of 6.191%. (Id. ¶ 59.) Mr. Salazar obtained a loan through his broker, TLN Financial, with a 30-year term and an APR of 7.181%. (Id. ¶ 69.) Plaintiffs allege that GreenPoint was the lender of record on each loan, but nowhere in the Complaint do they allege any direct contact between themselves and GreenPoint.2 Plaintiffs contend that GreenPoint's "Discretionary Policy" resulted in a disparate impact against them and other minority borrowers. (Id. ¶ 44.) Plaintiffs allege that this Policy gives brokers discretion to use subjective factors to determine the interest rate and fees charged to borrowers. (Id.) Plaintiffs further allege that this Policy has resulted in minority borrowers 1 Plaintiffs do not allege intentional discrimination on the part of GreenPoint. 2 GreenPoint permanently closed its lending operations in late 2007. Case 3:08-cv-00369-TEH Document 34 Filed 04/11/2008 Page 7 of 21 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 -2- NOTICE OF MOTION TO DISMISS CASE NO. 3:08-cv-00369-TEH receiving more costly loans than similarly-situated white borrowers. (Id. ¶ 48.) Plaintiffs allege violations of the Equal Credit Opportunity Act ("ECOA") (15 U.S.C. § 1691 et seq.) and the Fair Housing Act ("FHA") (42 U.S.C. § 3601). They seek injunctive and monetary relief. First, there is a threshold question whether disparate impact claims are even permitted under either the ECOA or the FHA. Second, even if such claims are permitted in the abstract, Plaintiffs' claims still fail because they are unable to point to any specific practice or policy of GreenPoint that resulted in the alleged disparate impact on minorities. Plaintiffs allege that they obtained mortgage loans from brokers and that the brokers charged them too much on account of their race. However, rather than bring an action against the brokers, they have chosen to proceed against the lender of record, GreenPoint, who had no interaction with the customers and who, Plaintiffs concede, set the component of the loan that it controls in an objective and non- discriminatory manner. Moreover, Plaintiffs are actually complaining about alleged disparate treatment by brokers, none of whom is even named as a defendant. Plaintiffs' claim is in actuality one of disparate treatment by brokers. However, Plaintiffs try to create a claim against GreenPoint by alleging that the brokers' setting of fees is a "policy" of GreenPoint. But, as Plaintiffs themselves allege, there are two components of loan pricing the base (or par rate) which is set by GreenPoint and the discretionary fee that is charged by the broker. Quite simply, GreenPoint cannot be held liable under the fair lending laws for any actions of the brokers and Plaintiffs' invocation of a "Discretionary Pricing Policy" is simply a linguistic attempt to circumvent the legal and factual reality that if Plaintiffs' loans were priced in a discriminatory manner, it is the brokers with whom they dealt, and not GreenPoint, that are responsible. Finally, the Ramirezes' claims are time-barred by the applicable statutes of limitations. Both the ECOA and the FHA have a two-year statute of limitations. The Ramirezes obtained their loan on August 3, 2005 more than two years prior to the filing of their Complaint. Therefore, their claims are time-barred and must be dismissed. II. LEGAL STANDARD Recently, in Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007), the Supreme Court Case 3:08-cv-00369-TEH Document 34 Filed 04/11/2008 Page 8 of 21 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 -3- NOTICE OF MOTION TO DISMISS CASE NO. 3:08-cv-00369-TEH clarified the pleading standard applicable to a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). The Supreme Court explicitly rejected the previously-accepted "no set of facts" language set forth in Conley v. Gibson,3 and instead held that a plaintiff must allege "enough facts to state a claim to relief that is plausible on its face" in order to survive a Rule 12(b)(6) motion. Twombly, 127 S. Ct. at 1974. "Factual allegations must be enough to raise a right to relief above the speculative level . . . ." Id. at 1965. In other words, a complaint must be dismissed if it does not contain a "set of facts" that renders a plaintiff's claims "plausible" rather than merely "conceivable." Id. at 1965, 1974. A plaintiff's "obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 1964-65 (internal quotations omitted). Accordingly, while a court must assume the truth of the facts that are alleged, "conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss." Ove v. Gwinn, 264 F.3d 817, 821 (9th Cir. 2001). III. ARGUMENT A. Neither The FHA Nor The ECOA Permits Disparate Impact Claims GreenPoint acknowledges that current Ninth Circuit precedent allows disparate impact claims under the ECOA and the FHA. See, e.g., Keith v. Volpe, 858 F.2d 467 (9th Cir. 1988). However, the Ninth Circuit does not appear to have addressed the conflict between this position and the recent Supreme Court decision of Smith v. City of Jackson, 544 U.S. 228 (2005), which mandates that courts undertake a careful textual analysis of anti-discrimination statutes in deciding whether they provide for a disparate impact claim.4 3 Conley v. Gibson, 355 U.S. 41, 45-46 (1957), was widely interpreted to stand for the proposition that a court could dismiss a complaint on a Rule 12(b)(6) motion only if "no set of facts" could be proved in support of the plaintiff's claim. The Court in Twombly noted that "Conley's 'no set of facts' language has been questioned, criticized, and explained away long enough . . .[A]fter puzzling the profession for 50 years, this famous observation has earned its retirement. The phrase is best forgotten . . . ." Twombly, 127 S. Ct. at 1969. 4 See, e.g., Budnick v. Town of Carefree, No. 06-15841, 2008 U.S. App. LEXIS 5152, at *22-24 (9th Cir. Mar. 11, 2008) (affirming grant of summary judgment on disparate impact claim arising under FHA without addressing whether such claims may be maintained following Smith). Case 3:08-cv-00369-TEH Document 34 Filed 04/11/2008 Page 9 of 21 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 -4- NOTICE OF MOTION TO DISMISS CASE NO. 3:08-cv-00369-TEH The Supreme Court held in Smith that certain sections of the Age Discrimination in Employment Act (ADEA) permit a disparate impact claim because they include language regarding the "effect" on protected classes equivalent to that found in § 703(a)(2) of Title VII.5 The Court noted that the statutory basis for disparate impact claims under Title VII comes from § 703(a)(2) of that statute, which states: It shall be an unlawful employment practice for an employer (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin. Title VII § 703(a), 42 U.S.C. § 2000e-2(a) (emphasis added); see also Griggs v. Duke Power Co., 401 U.S. 424 (1971). Comparing the ADEA to § 703(a)(2) of Title VII, the Court found that the ADEA permits disparate impact claims because § 4(a)(2) of the ADEA mirrors the language of § 703(a)(2) of Title VII. Smith, 544 U.S. at 235-38, 240. In contrast, the Court noted, subsection (a)(1) of both statutes which do not contain the "effects" language do not allow for disparate impact claims, based on the "key textual differences" between subsection (a)(1) and (a)(2) of both statutes. Id. at 236-38. Rather, based on the plain language of subsection (a)(1) of both statutes, intentional discrimination is required to bring a claim under those subsections. Id. This portion of Smith is dispositive here, because neither the FHA nor the ECOA contain the crucial "effects" language discussed in Smith. See Garcia v. Johanns, 444 F.3d 625, 633 n.9 (D.C. Cir. 2006) ("The Supreme Court has held that this ['effects'] language gives rise to a cause of action for disparate impact discrimination under Title VII and the ADEA. ECOA contains no such language.") (citation omitted). In fact, the language of the FHA and ECOA is more similar to the (a)(1) language discussed above, which the Court held requires a showing of intentional 5 42 U.S.C. § 2000e-2(a)(2). Smith, 544 U.S. at 235-36. Case 3:08-cv-00369-TEH Document 34 Filed 04/11/2008 Page 10 of 21 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 -5- NOTICE OF MOTION TO DISMISS CASE NO. 3:08-cv-00369-TEH discrimination. Thus, both the ECOA and the FHA should be read to require a showing of discriminatory intent in order to state a claim. Smith, 544 U.S. at 236-38. In sum, Smith requires this Court to look to the plain language of both statutes, as the Supreme Court did in interpreting the ADEA. 6 Because it is clear from their plain language that neither the ECOA nor the FHA permits a disparate impact claim, Plaintiffs' Complaint must be dismissed.7 B. Plaintiffs Fail To Assert A Cognizable Disparate Impact Claim Even if the Court were to find that disparate impact is a viable theory under the FHA and ECOA as a general matter, the Complaint should nonetheless be dismissed because Plaintiffs have failed to state a claim of discrimination based on disparate impact. A disparate impact claim requires: (1) a specific and clearly delineated policy adopted by the defendant; (2) a disparate impact on a protected group; and (3) facts demonstrating a causal connection between the specific challenged policy and the alleged disparate impact. Smith, 544 U.S. at 241;Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 657-58 (1989); Stout v. Potter, 276 F.3d 1118, 1121 (9th Cir. 2002). In this case, Plaintiffs were free to have filed suit against the brokers from whom they obtained their loans. In fact, to the extent their claims are not time-barred (see infra § III.C), they remain free to do so. Instead, Plaintiffs chose to sue GreenPoint. In so doing, they have, in essence, attempted to cast their claim of intentional discrimination by the brokers as a claim of disparate impact by GreenPoint. This contorts the very concept of disparate impact. Because Plaintiffs' Complaint fails to allege a specific policy that resulted in a disparate impact on a protected class, and because disparate impact analysis is not applicable in this case, the Complaint 6 For further discussion of the impact of Smith on disparate impact claims brought under ECOA, see Peter N. Cubita & Michelle Hartmann, The ECOA Discrimination Proscription and Disparate Impact Interpreting the Meaning of the Words That Actually Are There, 61 Bus. Law. 829 (2006). 7 Although a recent decision by Judge Phillips of the U.S. District Court for the Central District of California holds otherwise, GreenPoint respectfully disagrees with the analysis performed by the court in that case. Garcia v. Countrywide Fin. Corp., Case No. EDCV 07-1161-VAP (JCRx) (Order, January 17, 2008) (Attached as Ex. A). In that case, Judge Phillips sustained plaintiff's disparate impact claims but dismissed his disparate treatment claims. See id. Case 3:08-cv-00369-TEH Document 34 Filed 04/11/2008 Page 11 of 21 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- NOTICE OF MOTION TO DISMISS CASE NO. 3:08-cv-00369-TEH must be dismissed. 1. Overview Of Disparate Impact The disparate impact analysis applied by courts today evolved out of employment discrimination cases brought under Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e-2). In the first such case to reach the Supreme Court, Griggs v. Duke Power Co., 401 U.S. 424 (1971), the Court held that an employer could not require a high school education or the passing of a standardized intelligence test as a condition of employment where neither requirement was significantly related to successful job performance and where both requirements disqualified black candidates at a higher rate than whites. Cases decided after Griggs have applied disparate impact to specific policies of employers, such as policies requiring certain physical characteristics of employees (e.g., that employees be of a certain height and weight or other requirements affecting those of a certain sex) e.g., Dothard v. Rawlinson, 433 U.S. 321 (1977); Gerdom v. Continental Airlines, Inc., 692 F.2d 602 (9th Cir. 1982) (en banc); policies requiring commencement of leave upon pregnancy, e.g., Harriss v. Pan American World Airways, Inc., 649 F.2d 670 (9th Cir. 1980); or policies which exclude applicants based on arrest records, e.g., Gregory v. Litton Sys., Inc., 472 F.2d 631 (9th Cir. 1972). In each of these cases, the court relied on a specific employment practice or policy which, although facially neutral, was potentially being used as a "pretext" for intentional discrimination. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975). Although disparate impact analysis in the employment context does not require a showing of discriminatory intent on the part of the defendant, the approach outlined by the Court in Griggs and its progeny "makes an initial assumption that any significant 'underrepresentation' of protected groups in an employer's work force may reflect and constitute evidence of discrimination." Ronald Turner, Thirty Years of Title VII's Regulatory Regime: Rights, Theories, and Realities, 46 Ala. L. Rev. 375, 456 (1995). But the assumptions that apply in the context of employment do not translate well to the realm of fair lending. See, e.g., NAACP v. Am. Family Mut. Ins. Co., 978 F.2d 287, 290-91 (7th Cir. 1992) (noting that the practice of "redlining," in which insurers charge higher rates or decline to underwrite insurance for people who live in certain neighborhoods, is not Case 3:08-cv-00369-TEH Document 34 Filed 04/11/2008 Page 12 of 21 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 -7- NOTICE OF MOTION TO DISMISS CASE NO. 3:08-cv-00369-TEH necessarily appropriate for disparate impact analysis because "efforts to differentiate more fully among risks may produce classifications that could be generated by discrimination"). A brief sampling of cases in the fair lending context in which courts have applied (or not applied) the disparate impact analysis demonstrate that Title VII cases cannot automatically be applied to non-employment situations. See, e.g., Knapp v. Eagle Prop. Mgmt. Corp., 54 F.3d 1272, 1280 (7th Cir. 1995) (refusal of landlord to accept Section 8 tenants cannot form basis of a claim for racial discrimination under disparate impact analysis); Garcia, 444 F.3d 625 (affirming district court's refusal to certify class of Hispanic farmers where plaintiffs failed to demonstrate, under disparate impact theory, a facially-neutral USDA policy that adversely affected them as a class); Khalil v. The Farash Corp., 452 F. Supp. 2d 203, 209 (W.D.N.Y. 2006) (dismissing disparate impact claims where "the gist" of plaintiffs' claims was that the rule at issue was being applied in a discriminatory manner, which is "essentially a claim of disparate treatment"). 2. Plaintiffs Do Not State A Disparate Impact Claim Because They Do Not Point To A Specific Policy Or Practice The cases cited above illustrate the fact that all claims labeled "disparate impact" are not cut from the same cloth. Rather, the court must determine whether the facts at hand lend themselves to such an analysis or not. See Knapp, 54 F.3d at 1280. Here, Plaintiffs do not point to a specific rule, test, or policy of the Defendant, but instead are simply attacking the cumulative effects of pricing by thousands of independent brokers. As the Ninth Circuit has explained, the cumulative effects of numerous decisions and negotiations cannot be aggregated into a claim of disparate impact: The case before us simply does not fit into the disparate impact model. The model was developed as a form of pretext analysis to handle specific employment practices not obviously job-related, such as [] intelligence tests . . . [T]he discriminatory impact model of proof . . . is not, however, the appropriate vehicle from which to launch a wide ranging attack on the cumulative effect of a company's employment practices. Spaulding v. Univ. of Wash., 740 F.2d 686, 707 (9th Cir. 1984) (emphasis added) (internal citations and quotations omitted).8 8 See also Knapp, 54 F.3d at 1280 ("we 'refuse[] to conclude that every action which produces discriminatory effects is illegal. . . . Rather, the courts must use their discretion in deciding (cont'd) Case 3:08-cv-00369-TEH Document 34 Filed 04/11/2008 Page 13 of 21 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 -8- NOTICE OF MOTION TO DISMISS CASE NO. 3:08-cv-00369-TEH To state a disparate impact claim, a plaintiff must "isolat[e] and identif[y] the specific . . . practices that are allegedly responsible for any observed statistical disparities." Smith, 544 U.S. at 241 (emphasis in original). Both the U.S. Supreme Court and the Ninth Circuit have stressed that plaintiffs in disparate impact cases must identify a specific policy or practice of the defendants rather than waging broad-based attacks against decision-making processes. See, e.g., Smith, 544 U.S. at 241;Wards Cove, 490 U.S. at 657;Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994 (1988); Stout v. Potter, 276 F.3d 1118 (9th Cir. 2002). Plaintiffs attempt to bypass the "specific practice" requirement through the linguistic artifice of framing the "policy" that they are purportedly challenging as being GreenPoint's "policy" relating to brokers. However, as even the most liberal reading of the Complaint reveals, Plaintiffs have not been harmed by any GreenPoint "policy," "rule," or "test." Plaintiffs are instead complaining about the decision-making processes of thousands of brokers during their negotiations with individual customers. Quite simply, Plaintiffs fail to identify a policy of GreenPoint that is subject to challenge in a lawsuit against GreenPoint. The situation here is similar to that in Smith, where the plaintiffs challenged a pay plan that granted proportionately greater pay raises to employees with less than five years of tenure. Plaintiffs argued that this plan had a discriminatory effect on older employees. Id. at 231. The Supreme Court, however, held that the plaintiffs had failed to state a claim for disparate impact: They have not identified any specific test, requirement, or practice within the pay plan that has an adverse impact on older workers. As we held inWards Cove, it is not enough to simply allege that there is a disparate impact on workers, or point to a generalized policy that leads to such an impact. Rather, the employee is "'responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities.'" Petitioners have failed to do so. Their failure to identify the specific practice being challenged is the sort of omission that could "result in employers being potentially liable for 'the myriad of innocent causes that may lead to statistical imbalances . . . .'" ________________________ (cont'd from previous page) whether, given the particular circumstances of each case, relief should be granted under the statute.'") (quoting Metropolitan Housing Development Corp. v. Village of Arlington Heights, 558 F.2d 1283, 1290 (7th Cir. 1977), cert. denied, 424 U.S. 1025 (1978); Am. Family, 978 F.2d at 290-91 (noting that "risk discrimination" in the context of insurance is not the same as race discrimination). Case 3:08-cv-00369-TEH Document 34 Filed 04/11/2008 Page 14 of 21 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 -9- NOTICE OF MOTION TO DISMISS CASE NO. 3:08-cv-00369-TEH Smith, 544 U.S. at 241 (internal citations omitted; emphasis in original). Similarly, in AFSCME v. State of Washington, 770 F.2d 1401 (9th Cir. 1985), plaintiffs contended that the state's practice of setting salaries based on periodic studies assessing prevailing market rates for each position was discriminatory. The District Court entered judgment in favor of the plaintiff class. The Court of Appeals, in a decision written by then Circuit Judge Anthony Kennedy, reversed, holding that "the decision to base compensation on the competitive market . . . involves the assessment of a number of complex factors not easily ascertainable, an assessment too multifaceted to be appropriate for disparate impact analysis." Id. at 1406 (emphasis added). Thus, a compensation system that is "responsive to supply and demand and other market forces" does not constitute an "employment practice that yields to disparate impact analysis." Id. More recently, in Stout v. Potter, 276 F.3d 1118 (9th Cir. 2002), a group of postal inspectors challenged the process by which a review panel screened applicants for promotion. Judge Wilken granted summary judgment in favor of the defendant after which the Ninth Circuit affirmed, explaining that the plaintiffs had "fail[ed] to identify a specific employment practice that disproportionately excludes female applicants because of their gender." Id. at 1125. The court went on to note: Plaintiffs generally cannot attack an overall decision-making process in the disparate impact context, but must instead identify the particular element or practice within the process that causes an adverse impact. Id. at 1124 (citing Wards Cove, 490 U.S. at 656-57). See also Anderson v. Douglas & Lomason Co., 26 F.3d 1277, 1284 (5th Cir. 1994) (affirming district court's refusal to consider plaintiff's claims under disparate impact theory where plaintiff failed to "identify a specific aspect of subjective decision-making by [defendant] that was shown to have any causal connection to the alleged class-based imbalance in [defendant]'s general or supervisory work force," but instead "merely launched a wide-ranging attack on the cumulative effects of [defendant]'s employment practices"). Returning to the present case, Plaintiffs have not identified a specific policy of the type required to state a claim of disparate impact. Instead, they allege that GreenPoint, through its Case 3:08-cv-00369-TEH Document 34 Filed 04/11/2008 Page 15 of 21 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 -10- NOTICE OF MOTION TO DISMISS CASE NO. 3:08-cv-00369-TEH "Discretionary Pricing Policy," authorized brokers to impose discretionary charges on borrowers based on subjective criteria. (See Compl. ¶ 35.) The Complaint does not allege what these subjective criteria are, nor does it allege that the subjective criteria actually relied upon by brokers were authorized by GreenPoint. Rather, Plaintiffs simply challenge the cumulative effects of the pricing practices of thousands of brokers. As in Stout and Spaulding, Plaintiffs here are attempting to mount a broad-based attack on the cumulative effects of decision-making processes. That does not relieve them of the need to satisfy the well-established requirement of pleading a specific policy or practice of the Defendant (and not of someone else) to state a disparate impact claim. In short, Plaintiffs are asserting the kind of non-specific disparate impact claim that courts have repeatedly disallowed.9 3. Plaintiffs Fail To Allege A Disparate Impact Even if Plaintiffs could allege a specific GreenPoint "policy," their Complaint would still fail because they have not alleged an actual disparate impact on a protected class. Wards Cove, 490 U.S. at 657-58. Plaintiffs tacitly acknowledge that they must allege that similarly-situated minority borrowers paid more for their loans. (See Compl. ¶ 48 ("statistical analysis of . . . customers of other mortgage companies . . . has revealed that minority borrowers, after controlling for credit risk, are substantially more likely than similarly situated whites to pay such charges").)10 But they do not follow that principle through to its obvious conclusion which is that, at a minimum, they must allege that GreenPoint charged those minority borrowers more. Instead, Plaintiffs' sole allegation 9 Plaintiffs' attempt to hold GreenPoint accountable for the actions of brokers is analogous to suits brought against franchisors by plaintiffs who allege that they experienced discrimination at the hands of a franchisee. Courts have rejected such lawsuits under various federal anti- discrimination laws. See, e.g., Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1071 (10th Cir. 1998) (rejecting attempt to hold franchisor liable for allegedly discriminatory conduct of employees of franchisee under Title VII, finding, inter alia, no evidence that franchisor controlled the day- to-day employment decisions of franchisee); Neff v. Am. Dairy Queen Corp., 58 F.3d 1063, 1068-69 (5th Cir. 1995) (affirming summary judgment in favor of franchisor in ADA claim based on franchisee's failure to make accommodations for disabled people, holding that franchisor did not have structural control over its franchise stands). 10 In this regard, Plaintiffs are right. A disparate impact case must be premised on a comparison of similarly-situated applicants. See Wards Cove, 490 U.S. at 651-53. Case 3:08-cv-00369-TEH Document 34 Filed 04/11/2008 Page 16 of 21 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 -11- NOTICE OF MOTION TO DISMISS CASE NO. 3:08-cv-00369-TEH regarding similarly-situated borrowers pertains to an analysis of "other mortgage companies." (Id. (emphasis added).) Any pattern of alleged discrimination by other mortgage lenders cannot be the basis for a disparate impact claim against GreenPoint. The only statistical allegation Plaintiffs make that is based on data particular to GreenPoint is publicly available Home Mortgage Disclosure Act (HMDA) data, which, according to Plaintiffs, shows that minorities were more likely than white borrowers to receive high-APR loans from GreenPoint. (See Compl. ¶¶ 35-36.) Significantly, however, the HMDA data does not control for credit risk differences between minority and white borrowers, thus rendering it facially insufficient in support of a disparate impact claim. Under established precedent, borrowers cannot be similarly situated if they are not alleged to have equal credit risk and other factors affecting available loan terms and programs, including equal financial resources to secure the same loan products. See Wards Cove, 490 U.S. at 651-53 (holding that plaintiffs had not made out a disparate impact claim based on a statistical comparison of two workforces that compared unskilled workers with skilled workers, two populations which were not similarly situated). And a plaintiff that does not support allegations with facts illustrating that the groups are similarly situated cannot state a claim for disparate impact. See id.; see also , 885 F.2d 1215, 1223 (4th Cir. 1989) (in evaluating a motion to dismiss, noting that "merely demonstrating a statistical imbalance, without more, does not establish a greater discriminatory adverse effect on one race compared to another");Moore v. Hughes Helicopters, Inc., 708 F.2d 475, 482-83 (9th Cir. 1983). In sum, Plaintiffs' claims do not fit within the framework of disparate impact analysis due to their inability to point to any policy of GreenPoint responsible for the alleged disparate impact, and because Plaintiffs fail to allege facts demonstrating a disparate impact on a protected class. C. The Ramirezes' Claims Are Time-Barred And Must Be Dismissed Even if the Court finds that Plaintiffs have alleged a disparate impact claim, the Ramirezes' claims still fail because they are barred by the two-year statute of limitation governing ECOA and FHA claims. Case 3:08-cv-00369-TEH Document 34 Filed 04/11/2008 Page 17 of 21 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 -12- NOTICE OF MOTION TO DISMISS CASE NO. 3:08-cv-00369-TEH 1. Each Of Plaintiffs' Claims Is Subject To A Two-Year Statute Of Limitation Claims brought under either the ECOA or the FHA must be brought within two years of the date of the injury. See 15 U.S.C.S. § 1691e(f) (ECOA) ("No such action shall be brought later than two years from the date of the occurrence of the violation."); 42 U.S.C. § 3613(a)(1)(A) (FHA) ("An aggrieved person may commence a civil action . . . not later than 2 years after the occurrence or the termination of an alleged discriminatory housing practice."). Here, the Ramirezes allege that they obtained their allegedly discriminatory loan on August 3, 2005. (Compl. ¶ 57.) Therefore, the last date on which Plaintiffs could have commenced their action was August 2, 2007. 2. The Tolling Allegations Do Not Save The Ramirezes' Claims The Ramirezes seek to forestall the obvious statute of limitations problem by arguing that they could not have discovered the factual bases of their claims until recently. (Compl. ¶ 87.) They contend that they did not discover, and were unable to discover, the factual bases of their claims due to both the nature of their cause of action and GreenPoint's knowing and active concealment of the facts. (Id.) However, each of those theories of tolling carves out only a limited exception to the statute of limitations, and neither applies in this case. (a) The Discovery Rule Under the so-called "discovery rule," a plaintiff's cause of action does not accrue until such date as the plaintiff discovered or reasonably could have discovered the injury. See Orr v. Bank of Am., NT & SA, 285 F.3d 764, 780 (9th Cir. 2002) (holding plaintiff's claim barred by statute of limitations where she "failed to exercise reasonable diligence in attempting to discover the cause of her injury"). This rule does not save the Ramirezes' claims, because they do not allege any facts that plausibly illustrate that they exercised "reasonable diligence" to uncover the factual basis for their claims. As they themselves concede, that information regarding the alleged discriminatory impact of discretionary pricing systems has been publicly available for years. (Compl. ¶ 88 ("[k]nowledge concerning the . . . discriminatory impact of such commission-driven, discretionary credit-pricing systems has been widely circulated within the financing industry for several years, as a result of numerous actions by the United States Department of Justice and federal regulatory Case 3:08-cv-00369-TEH Document 34 Filed 04/11/2008 Page 18 of 21 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 -13- NOTICE OF MOTION TO DISMISS CASE NO. 3:08-cv-00369-TEH agencies").) These "facts" were a matter of public record and in fact, according to the Ramirezes were widely known. Thus, this information was manifestly available to the Ramirezes through the exercise of reasonable diligence. Moreover, the Ramirezes themselves allege data, as reported under HMDA, reflected a disparity in the percentage of high-APR loans made to minorities as compared to white customers. (Compl. ¶ 35.) (As discussed above, this allegation is the only pricing discrimination allegation in the Complaint that specifically relates to GreenPoint). That 2004 HMDA data has been publicly available since at least March 31, 2005. See 12 C.F.R. § 203.5 (requiring HMDA data to be made available to the public no later than March 31 of the calendar year following the year for which the data were compiled). Consequently, the Ramirezes cannot reasonably argue that as of the date of their loan they would have been unable to determine the facts underlying their cause of action. (b) Fraudulent Concealment Similarly, the Ramirezes' "fraudulent concealment" allegations do not save their claims. First and foremost, "fraudulent concealment " must be alleged with particularity pursuant to Federal Rule of Civil Procedure 9(b). See, e.g., Larson v. Northrup Corp., 21 F.3d 1164, 1173 (D.C. Cir. 1994); Rambus Inc. v. Samsung Elecs. Co., No. C-05-02298, 2007 U.S. Dist. LEXIS 3088, at *19-22 (N.D. Cal. Jan. 4, 2007). The allegations of GreenPoint's "deception and concealment" are wholly conclusory and fail to meet the heightened pleading standard for fraud under Rule 9(b). See Rambus, 2007 U.S. Dist. LEXIS, at *19-22 (dismissing fraudulent concealment allegations for failure to meet heightened pleading standard); see also Rutledge v. Boston Woven Hose & Rubber Co., 576 F.2d 248, 250 (9th Cir. 1978) (affirming dismissal of allegations of fraudulent concealment where plaintiff failed to "plead with particularity the circumstances surrounding the concealment" and failed to "state facts showing his due diligence in trying to uncover the facts"). The Ramirezes have not alleged any facts supporting their claim that GreenPoint "knowingly and actively concealed" the facts alleged in the Complaint, nor have they alleged facts detailing their efforts to uncover the basis of their claims through reasonable diligence. Second, the doctrine of fraudulent concealment "is properly invoked only if a plaintiff Case 3:08-cv-00369-TEH Document 34 Filed 04/11/2008 Page 19 of 21 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 -14- NOTICE OF MOTION TO DISMISS CASE NO. 3:08-cv-00369-TEH establishes 'affirmative conduct upon the part of the defendant which would, under the circumstances of the case, lead a reasonable person to believe that he [the plaintiff] did not have a claim for relief.'" Stutz Motor Car of Am., Inc. v. Reebok Int'l, Ltd., 909 F. Supp. 1353, 1363 (C.D. Cal. 1995) (quoting Volk v. D.A. Davidson & Co., 816 F.2d 1406, 1415 (9th Cir. 1987)); see also Gibson v. United States, 781 F.2d 1334, 1345 (9th Cir. 1986). As discussed above, the Ramirezes allege no facts suggesting that GreenPoint took any affirmative steps to hide relevant facts from the Ramirezes, and instead allege to the contrary, that GreenPoint publicly reported data that supports their claim. Third, the Ramirezes must further demonstrate "that they had neither actual nor constructive notice of the facts constituting their claims for relief." Volk, 816 F.2d at 1415. As with the discovery rule, the doctrine of fraudulent concealment "does not come into play, whatever lengths to which a defendant has gone to conceal the wrongs, if a plaintiff is on notice of a potential claim." Rambus, 2007 U.S. Dist. LEXIS, at *23 (internal citation omitted). Similarly, "[a] plaintiff is under a duty to reasonably investigate, and a suspicion of wrongdoing, coupled with a knowledge of the harm and its cause, commences the limitations period." Id. The Ramirezes' own allegations including those based on GreenPoint's publicly available HMDA data contradict their claim that they had no knowledge nor any way to uncover the basis of their action. The "facts" cited in their Complaint were publicly available long before the limitations period expired for the Ramirezes. Similarly, the Ramirezes cannot avail themselves of the continuing violations doctrine to extend the limitations period. The continuing violations doctrine, like the discovery rule, is a narrow exception to the statute of limitations, under which some courts have extended limitations periods where a plaintiff was subject to a continuing practice of discrimination both within and outside of the limitations period. Even assuming for the sake of argument that this doctrine is applicable here, it does not benefit the Ramirezes, since the discrimination of which they complain occurred entirely outside of the limitations period. Indeed, even under the continuing violations doctrine: Case 3:08-cv-00369-TEH Document 34 Filed 04/11/2008 Page 20 of 21 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 -15- NOTICE OF MOTION TO DISMISS CASE NO. 3:08-cv-00369-TEH 205335-San Francisco Server 1A - MSW If an event or series of events should have alerted a reasonable person to act to assert his or her rights at the time of the violation, the victim cannot later rely on the continuing violation doctrine to overcome the statutory requirement of filing [suit] with respect to that event or series of events. Hipp v. Liberty Nat'l Life Ins. Co., 252 F.3d 1208, 1222 (11th Cir. 2001) (quotations and citations omitted). In addition, even though the Ramirezes seek to represent a class of potential plaintiffs, some of whom may have obtained loans within the limitations period, they cannot use their putative class status to avoid the constitutional requirement that they themselves have standing by virtue of having suffered an injury within the limitations period. See, e.g., Lierboe v. State Farm Mut. Auto. Ins. Co., 350 F.3d 1018, 1022 (9th Cir. 2003) ("'if none of the named plaintiffs purporting to represent a class establishes the requisite of a case or controversy with the defendants, none may seek relief on behalf of himself or any other member of the class'") (quoting O'Shea v. Littleton, 414 U.S. 488, 494 (1974)). IV. CONCLUSION For the foregoing reasons, GreenPoint's motion should be granted and the Complaint dismissed with prejudice. DATED: April 11, 2008 SKADDEN, ARPS, SLATE, MEAGHER & FLOM, LLP By: /s/ Raoul D. Kennedy Raoul D. Kennedy Attorneys for DEFENDANT GREENPOINT MORTGAGE FUNDING, INC. Case 3:08-cv-00369-TEH Document 34 Filed 04/11/2008 Page 21 of 21 Case 3:08-cv-00369-TEH Document 34-2 Filed 04/11/2008 Page 1 of 29 Case 3:08-cv-00369-TEH Document 34-2 Filed 04/11/2008 Page 2 of 29 Case 3:08-cv-00369-TEH Document 34-2 Filed 04/11/2008 Page 3 of 29 Case 3:08-cv-00369-TEH Document 34-2 Filed 04/11/2008 Page 4 of 29 Case 3:08-cv-00369-TEH Document 34-2 Filed 04/11/2008 Page 5 of 29 Case 3:08-cv-00369-TEH Document 34-2 Filed 04/11/2008 Page 6 of 29 Case 3:08-cv-00369-TEH Document 34-2 Filed 04/11/2008 Page 7 of 29 Case 3:08-cv-00369-TEH Document 34-2 Filed 04/11/2008 Page 8 of 29 Case 3:08-cv-00369-TEH Document 34-2 Filed 04/11/2008 Page 9 of 29 Case 3:08-cv-00369-TEH Document 34-2 Filed 04/11/2008 Page 10 of 29 Case 3:08-cv-00369-TEH Document 34-2 Filed 04/11/2008 Page 11 of 29 Case 3:08-cv-00369-TEH Document 34-2 Filed 04/11/2008 Page 12 of 29 Case 3:08-cv-00369-TEH Document 34-2 Filed 04/11/2008 Page 13 of 29 Case 3:08-cv-00369-TEH Document 34-2 Filed 04/11/2008 Page 14 of 29 Case 3:08-cv-00369-TEH Document 34-2 Filed 04/11/2008 Page 15 of 29 Case 3:08-cv-00369-TEH Document 34-2 Filed 04/11/2008 Page 16 of 29 Case 3:08-cv-00369-TEH Document 34-2 Filed 04/11/2008 Page 17 of 29 Case 3:08-cv-00369-TEH Document 34-2 Filed 04/11/2008 Page 18 of 29 Case 3:08-cv-00369-TEH Document 34-2 Filed 04/11/2008 Page 19 of 29 Case 3:08-cv-00369-TEH Document 34-2 Filed 04/11/2008 Page 20 of 29 Case 3:08-cv-00369-TEH Document 34-2 Filed 04/11/2008 Page 21 of 29 Case 3:08-cv-00369-TEH Document 34-2 Filed 04/11/2008 Page 22 of 29 Case 3:08-cv-00369-TEH Document 34-2 Filed 04/11/2008 Page 23 of 29 Case 3:08-cv-00369-TEH Document 34-2 Filed 04/11/2008 Page 24 of 29 Case 3:08-cv-00369-TEH Document 34-2 Filed 04/11/2008 Page 25 of 29 Case 3:08-cv-00369-TEH Document 34-2 Filed 04/11/2008 Page 26 of 29 Case 3:08-cv-00369-TEH Document 34-2 Filed 04/11/2008 Page 27 of 29 Case 3:08-cv-00369-TEH Document 34-2 Filed 04/11/2008 Page 28 of 29 Case 3:08-cv-00369-TEH Document 34-2 Filed 04/11/2008 Page 29 of 29 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 [PROPOSED] ORDER CASE NO. 3:08-cv-00369-TEH UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ANA RAMIREZ, ISMAEL RAMIREZ and JORGE SALAZAR, on behalf of themselves and all others similarly situated, Plaintiffs, v. GREENPOINT MORTGAGE FUNDING, INC., Defendant. ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. 3:08-cv-00369-TEH CLASS ACTION [PROPOSED] ORDER GRANTING DEFENDANT GREENPOINT MORTGAGE FUNDING, INC.'S MOTION TO DISMISS PLAINTIFFS' FIRST AMENDED COMPLAINT Date: May 19, 2008 Time: 10:00 a.m. Place: Courtroom 12 Judge: The Honorable Thelton E. Henderson Case 3:08-cv-00369-TEH Document 34-3 Filed 04/11/2008 Page 1 of 2 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 -1- [PROPOSED] ORDER CASE NO. 3:08-cv-00369-TEH PROPOSED ORDER The Motion To Dismiss Plaintiffs' First Amended Complaint filed by Defendant GreenPoint Mortgage Funding, Inc. ("GreenPoint") came on regularly for hearing on May 19, 2008, in Courtroom 12 of this Court, the Honorable Thelton E. Henderson presiding. After considering all supporting and opposing papers, the arguments of counsel, and all other matters properly before the Court, and good cause appearing therefore, IT IS THEREFORE ORDERED that: 1. GreenPoint's Motion To Dismiss Plaintiffs' First Amended Complaint is GRANTED. 2. The First Amended Complaint and all causes of action stated therein are hereby DISMISSED WITH PREJUDICE. IT IS SO ORDERED. DATED: ______________________________ _______________________________________ The Honorable Thelton E. Henderson United States District Judge Respectfully Submitted by: SKADDEN, ARPS, SLATE, MEAGHER & FLOM, LLP By: /s/ Raoul D. Kennedy Raoul D. Kennedy Attorneys for DEFENDANT GREENPOINT MORTGAGE FUNDING, INC. Case 3:08-cv-00369-TEH Document 34-3 Filed 04/11/2008 Page 2 of 2