Robinson v. Ocwen Loan Servicing, LLC

MOTION to DISMISS

E.D. Cal.July 22, 2014

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 21000.0220/3345816.1 MOTION TO DISMISS JOHN B. SULLIVAN (State Bar No. 96742) EDWARD R. BUELL, III (State Bar No. 240494) erb@severson.com EVELINA MANUKYAN (State Bar No. 233262) exm@severson.com SEVERSON & WERSON A Professional Corporation One Embarcadero Center, Suite 2600 San Francisco, California 94111 Telephone: (415) 398-3344 Facsimile: (415) 956-0439 Attorneys for Defendant OCWEN LOAN SERVICING, LLC UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA - SACRAMENTO DIVISION TENA ROBINSON, Plaintiff, vs. OCWEN LOAN SERVICING, LLC; and DOES 1-100, inclusive, Defendants. Case No. 2:14-cv-01669-MCE-EFB OCWEN LOAN SERVICING, LLC’S NOTICE OF HEARING ON MOTION, MOTION TO DISMISS COMPLAINT, AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Date: October 30, 2014 Time: 2:00 p.m. Crtrm.: 7, 14th Floor Judge: Honorable Morrison C. England, Jr. Case 2:14-cv-01669-MCE-EFB Document 5 Filed 07/22/14 Page 1 of 25 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 21000.0220/3345816.1 i MOTION TO DISMISS TABLE OF CONTENTS Page NOTICE OF MOTION AND MOTION TO DISMISS ................................................................... 1 MEMORANDUM OF POINTS AND AUTHORITIES .................................................................. 2 I. INTRODUCTION................................................................................................................. 2 II. APPLICABLE LAW AND PERTINENT FACTS............................................................... 3 III. ROBINSON’S CLAIMS ARE REALLY AGAINST GMACM AND SHE IS PRECLUDED BY BANKRUPTCY COURT ORDER FROM PURSUING THEM AGAINST OCWEN.............................................................................................................. 4 IV. THE BREACH OF CONTRACT CLAIM IS DEFECTIVELY PLEADED ....................... 7 A. The Alleged Terms Of The Contract Are Not Stated................................................ 7 B. Robinson Does Not Plead The Existence Of Terms Showing An Enforceable Contract................................................................................................. 8 C. Facts Showing Damages Are Missing ...................................................................... 9 V. THE BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING FAILS FOR WANT OF ANY EXPRESS CONTRACT PROVISION THAT WAS FRUSTRATED.............................................................................................. 10 VI. ROBINSON HAS NO PROMISSORY ESTOPPEL CLAIM............................................ 11 A. A Clear And Unambiguous Promise Is Not Alleged .............................................. 11 B. Facts Demonstrating Reasonable Reliance Are Not Alleged.................................. 12 C. Facts Demonstrating Injury Are Not Alleged ......................................................... 12 VII. THE NEGLIGENCE CLAIMS FAILS FOR WANT OF A COGNIZABLE DUTY AND IS PRECLUDED BY THE ECONOMIC LOSS DOCTRINE ................................. 12 VIII. THE DERIVATIVE SECTION 17200 CLAIM IS NOT VIABLE.................................... 14 IX. CONCLUSION ................................................................................................................... 17 Case 2:14-cv-01669-MCE-EFB Document 5 Filed 07/22/14 Page 2 of 25 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 21000.0220/3345816.1 ii MOTION TO DISMISS TABLE OF AUTHORITIES Page(s) CASES Abrego Abrego v. The Down Chem. Co., 443 F.3d 676 (9th Cir. 2006)........................................................................................................4 Adams v. Williams Resorts, Inc., 210 Cal.App.2d 456 (1962)........................................................................................................15 Am. Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224 (9th Cir. 1988)........................................................................................................5 Anderson v. Permenter, 78 Cal.App.2d 378 (1947)..........................................................................................................16 Ann M. v. Pac. Plaza Shopping Ctr., 6 Cal.4th 666 (1993)...................................................................................................................13 Applied Equipment Corp. v. Litton Saudi Arabia Ltd., 7 Cal.4th 503 (1994)...................................................................................................................10 Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) ..................................................................................................................3 Auerbach v. Great W. Bank, 74 Cal.App.4th 1172 (1999).......................................................................................................12 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) .............................................................................................................3 Benson v. Ocwen Loan Servicing, LLC, - Fed. Appx. -, 2014 WL 962022 (9th Cir. 2014) .............................................................4, 13 Blackburn v. Charnley, 117 Cal.App.4th 758 (2004).......................................................................................................16 Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep’t of Health & Human Res., 532 U.S. 598 (2001) .....................................................................................................................9 Cargill, Inc. v. Souza, 201 Cal.App.4th 962 (2011).......................................................................................................10 Cordero v. Bank of Am., 2013 WL 4590826 (C.D. Cal. 2013)..........................................................................................15 Case 2:14-cv-01669-MCE-EFB Document 5 Filed 07/22/14 Page 3 of 25 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 21000.0220/3345816.1 iii MOTION TO DISMISS Cordon v. Wachovia Mortg., 776 F.Supp.2d 1029 (N.D. Cal. 2011) .......................................................................................15 Daro v. Superior Court, 151 Cal.App.4th 1079 (2007).....................................................................................................15 Day v. AT&T Corp., 63 Cal. App.4th 325 (1998)........................................................................................................16 Emery v. Visa Int’l Service Ass’n, 95 Cal.App.4th 952 (2002).........................................................................................................14 Fevinger v. Bank of Am., N.A., 2014 WL 1338301 (N.D. Cal. 2014)..........................................................................................13 Gibson v. Office of the Attorney General, 561 F.3d 920 (9th Cir. 2009)......................................................................................................10 Gilmore v. Lycoming Fire Ins. Co., 55 Cal. 123 (1880)........................................................................................................................7 Glenn K. Jackson Inc. v. Roe, 273 F.3d 1192 (9th Cir. 2001)....................................................................................................14 Gradetech, Inc. v. Am. Emp’rs Grp., 2006 WL 1806156 (N.D. Cal. 2006)............................................................................................5 Grimes v. New Century Mortg. Corp., 340 F.3d 1007 (9th Cir. 2003)............................................................................................8, 9, 12 Hakopian v. Mukasey, 551 F.3d 843 (9th Cir. 2008)........................................................................................................5 Hall v. United States, 314 F.Supp. 1135 (N.D. Cal. 1970) .............................................................................................5 Harris v. Wachovia Mortg., F.S.B., 185 Cal.App.4th 1018 (2010).....................................................................................................10 Heritage Pac. Fin., LLC v. Monroy, 215 Cal.App.4th 972 (2013).........................................................................................................7 Jackson v. Grant, 890 F.2d 118 (9th Cir. 1989)........................................................................................................9 Jenkins v. JP Morgan Chase Bank, N.A., 216 Cal.App.4th 497 (2013).......................................................................................................14 Khan v. CitiMortgage, Inc., 975 F.Supp.2d 1127 (E.D. Cal. 2013)........................................................................................16 Case 2:14-cv-01669-MCE-EFB Document 5 Filed 07/22/14 Page 4 of 25 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 21000.0220/3345816.1 iv MOTION TO DISMISS Korea Supply Co. v. Lockheed Martin Co., 29 Cal.4th 1134 (2003)...............................................................................................................15 Krantz v. BT Visual Images, L.L.C., 89 Cal.App.4th 164 (2001).........................................................................................................14 Kruse v. Bank of Am., 202 Cal.App.3d 38 (1988)..........................................................................................................12 Kwikset Corp. v. Superior Court, 51 Cal.4th 310 (2011).................................................................................................................14 Ladas v. California State Auto Ass’n, 19 Cal.App.4th 761 (1993)...........................................................................................................8 Laks v. Coast Fed. Sav. & Loan Ass’n, 60 Cal.App.3d 885, 890 (1976)..................................................................................................11 Lazo v. Bank of Am., N.A., 2012 WL 1831577 (N.D. Cal. 2012)............................................................................................5 Lingad v. Indymac Fed. Bank, 682 F.Supp.2d 1142 (E.D. Cal. 2010)........................................................................................11 Low v. LinkedIn Corp., 900 F.Supp.2d 1010 (N.D. Cal. 2012) ...................................................................................9, 10 Lueras v. BAC Home Loans Serv., LP, 221 Cal.App.4th 49 (2013).........................................................................................................13 McClain v. Octagon Plaza, LLC, 159 Cal.App.4th 784 (2008).......................................................................................................11 McKell v. Washington Mut., Inc., 142 Cal.App.4th 1457 (2006)...................................................................................................7, 8 Meyer v. Wells Fargo Bank, N.A., 2013 WL 6407516 (N.D. Cal. 2013)..........................................................................................13 Moss v. U.S. Secret Serv., 572 F.3d 962 (9th Cir. 2009)........................................................................................................3 Mullis v. United States Bankr. Ct., 828 F.2d 1385 (9th Cir. 1987)......................................................................................................3 Otworth v. S. Pac. Transp. Co., 166 Cal.App.3d 452 (1985)..........................................................................................................8 Owens v. Bank of Am., N.A., 2012 WL 5340577 (N.D. Cal. 2012)............................................................................................5 Case 2:14-cv-01669-MCE-EFB Document 5 Filed 07/22/14 Page 5 of 25 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 21000.0220/3345816.1 v MOTION TO DISMISS Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998)................................................................................................4 People v. Duz-Mor Diagnostic Lab., Inc., 68 Cal.App.4th 654 (1998).........................................................................................................14 People v. Toomey, 157 Cal.App.3d 1 (1984)......................................................................................................14, 16 Peterson Dev. Co. v. Torrey Pines Bank, 233 Cal.App.3d 103 (1991)....................................................................................................9, 12 Phipps v. Wells Fargo Bank, N.A., 2011 WL 302803 (E.D. Cal. 2011) ............................................................................................15 Price v. Wells Fargo Bank, 213 Cal.App.3d 465 (1989)......................................................................................................8, 9 Progressive West Ins. Co. v. Superior Court, 135 Cal.App.4th 263 (2005).........................................................................................................7 Racine & Laramie, Ltd. v. Dep’t of Parks & Recreation, 11 Cal.App.4th 1026 (1992).......................................................................................................11 Ragland v. U.S. Bank Nat’l Ass’n, 209 Cal.App.4th 182 (2012).......................................................................................................13 In re Residential Capital, LLC, 2013 WL 3286198 (Bankr. S.D.N.Y. 2013) ................................................................................6 Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Ass’n, 55 Cal.4th 1169 (2013).................................................................................................................8 Robinson v. Bank of Am., N.A., 2014 WL 60969 (N.D. Cal. 2014)..............................................................................................13 Roussel v. Wells Fargo Bank, N.A., 2012 WL 5301909 (N.D. Cal. 2012)..........................................................................................15 San Francisco Unified Sch. Dist. v. W.R. Grace & Co., 37 Cal.App.4th 1318 (1995).......................................................................................................14 Sanguinetti v. Citi Mortg., Inc., 2013 WL 4838765 (N.D. Cal. 2013)..........................................................................................13 Secrest v. Security Nat’l Mortg. Loan Trust 2002-2, 167 Cal.App.4th 544 (2008).........................................................................................................8 Seely v. White Motor Co., 63 Cal.2d 9 (1965)......................................................................................................................14 Case 2:14-cv-01669-MCE-EFB Document 5 Filed 07/22/14 Page 6 of 25 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 21000.0220/3345816.1 vi MOTION TO DISMISS Serna v. Bank of Am., N.A., 2012 WL 2030705 (C.D. Cal. 2012)..........................................................................................15 Sheet Metal Workers’ Int’l Ass’n Local Union No. 359 v. Madison Indus., Inc., 84 F.3d 1186 (9th Cir. 1996)........................................................................................................9 Sipe v. Countrywide Bank, 690 F.Supp.2d 1141 (E.D. Cal. 2010)........................................................................................11 Smith v. San Francisco, 225 Cal.App.3d 38 (1990)..........................................................................................................11 Software Design & Application, Ltd. v. Hoefer & Arnett, Inc., 49 Cal.App.4th 472 (1996).........................................................................................................13 Solomon v. Aurora Loan Servs. LLC, 2012 WL 257759 (E.D. Cal. 2012) ............................................................................................15 Sprewell v. Golden State Warriors, 266 F.3d 979 (9th Cir. 2001)........................................................................................................3 Sutcliffe v. Wells Fargo Bank, N.A. 283 F.R.D. 533 (N.D. Cal. 2012) .................................................................................................5 Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) .....................................................................................................................3 Thayer Plymouth Center, Inc. v. Chrysler Motors Corp., 255 Cal.App.2d 300 (1967)........................................................................................................15 Thompson v. Residential Credit Solutions, Inc., 2012 WL 260357 (E.D. Cal. 2012) ............................................................................................15 Trope v. Katz, 11 Cal.4th 274 (1995).................................................................................................................10 United States v. Ritchie, 342 F.3d 903 (9th Cir. 2003)........................................................................................................4 US Ecology, Inc. v. State of Cal., 129 Cal.App.4th 887 (2005).......................................................................................................11 Wall St. Network, Ltd. v. New York Times Co., 164 Cal.App.4th 1171 (2008).......................................................................................................7 Weddington Prods., Inc. v. Flick, 60 Cal.App.4th 793 (1998).........................................................................................................12 Williams v. Wells Fargo Bank, N.A., 2014 WL 1568857 (C.D. Cal. 2014)..........................................................................................13 Case 2:14-cv-01669-MCE-EFB Document 5 Filed 07/22/14 Page 7 of 25 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 21000.0220/3345816.1 vii MOTION TO DISMISS Wise v. S. Pac. Co., 223 Cal.App.2d 50 (1963)............................................................................................................8 STATUTES, RULES Business and Professions Code §17200, et seq.................................................................................................................14, 15, 17 § 17203.......................................................................................................................................16 Civil Code § 1624...........................................................................................................................................8 § 2924...........................................................................................................................................9 § 3390.........................................................................................................................................16 Code of Civil Procedure § 430.10........................................................................................................................................7 § 526...........................................................................................................................................16 Federal Rule of Civil Procedure Rule 12 .............................................................................................................................2, 3, 4, 5 OTHER AUTHORITIES 4 Witkin, Cal. Procedure, Pleading §§ 518-520 (5th ed. 2008) ............................................................................................................7 Case 2:14-cv-01669-MCE-EFB Document 5 Filed 07/22/14 Page 8 of 25 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 21000.0220/3345816.1 1 MOTION TO DISMISS NOTICE OF MOTION AND MOTION TO DISMISS PLEASE TAKE NOTICE that on October 30, 2014, at 2:00 p.m., or as soon thereafter as the matter may be heard, in Courtroom 7 of the above-entitled Court, located at Floor 14, 501 I Street, Sacramento, California 95814, before the Honorable Morrison C. England, Jr., Defendant Ocwen Loan Servicing, LLC will, and hereby does, move to dismiss Plaintiff Tena Robinson’s Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The Complaint fails to state a claim upon which relief may be granted as explained further in the accompanying memorandum of points and authorities. This motion is based on this motion and notice of motion, the accompanying memorandum of points and authorities, the request for judicial notice, the pleadings and records on file in this action, and any further briefs, evidence, authorities, or argument presented before or at the hearing of this motion. Defendant respectfully requests an order dismissing the Complaint for failure to state a claim. DATED: July 22, 2014 SEVERSON & WERSON A Professional Corporation By: /s/ Evelina Manukyan Evelina Manukyan Attorneys for Defendant OCWEN LOAN SERVICING, LLC Case 2:14-cv-01669-MCE-EFB Document 5 Filed 07/22/14 Page 9 of 25 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 21000.0220/3345816.1 2 MOTION TO DISMISS MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Defendant Ocwen Loan Servicing, LLC (“Ocwen”) respectfully submits this motion to dismiss Plaintiff Tena Robinson’s complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Robinson claims Ocwen breached a 2012 agreement to permanently modify her mortgage loan. Ocwen did not make the 2012 offer to modify Robinson’s mortgage-GMAC Mortgage, LLC (“GMACM”) did. Ocwen was not a party to the offer and it is not a successor in liability to GMACM, as established by a bankruptcy court order. So Robinson’s complaint should be dismissed for the simple reason that she filed this lawsuit against the wrong party. Robinson’s complaint should also be dismissed because each of the five causes of action she attempts to assert fails to state a claim for relief as a matter of law. Robinson strategically decided against attaching a copy of the loan modification offer to her complaint because it shows on its face that the offer was made by GMACM, not Ocwen. Her failure to attach a copy of the offer or set out any relevant provision in her complaint undermines her breach of contract claim. She does not allege the existence of an enforceable contract because she identifies no essential terms. Her skeletal pleading also alleges no facts showing any damage resulting from the breach of this contract. Robinson’s failure to allege the breach of any express provision of a contract also undermines her cause of action for breach of the implied covenant. Robinson’s promissory estoppel cause of action is missing facts showing a clear and unambiguous promise, detrimental reliance, or injury. Robinson does not have a viable negligence claim because there is no duty of due care with respect to loan modifications, because she avers no facts demonstrating damages, and because this claim is precluded by the economic loss doctrine. Robinson has no action under California Business and Profession Code § 17200 as there is nothing to support this derivative cause of action, there is no vicarious liability under this statute, there are no facts showing any injury, and Robinson does not establish a right to either form of relief provided by this act. Case 2:14-cv-01669-MCE-EFB Document 5 Filed 07/22/14 Page 10 of 25 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 21000.0220/3345816.1 3 MOTION TO DISMISS Each cause of action asserted in the complaint fails as a matter of law to state a claim for which relief may be granted. The Court should therefore grant Ocwen’s motion to dismiss. II. APPLICABLE LAW AND PERTINENT FACTS “To survive a motion to dismiss [under Federal Rule of Civil Procedure 12(b)(6)], 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, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also FED R. CIV. P. 12(b)(6). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). While the Court accepts as true the well-pleaded facts of a complaint when deciding a motion to dismiss, this presumption does not apply to naked assertions devoid of further factual enhancement or conclusory allegations of law. See Iqbal, 129 S.Ct. at 1949-50; Moss, 572 F.3d at 969. Moreover, the complaint must give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). Finally, facts subject to judicial notice may be considered on a motion to dismiss and these facts trump conclusory allegations to the contrary. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001); Mullis v. United States Bankr. Ct., 828 F.2d 1385, 1388 (9th Cir. 1987). The alleged and judicially noticeable facts are stated below. Ocwen does not concede the truth of any of the facts Robinson alleges. In 2006, Robinson refinanced her mortgage with a $309,600 loan. See Def’s Request for Judicial Notice (“RJN”), Ex. A. She secured her loan with a deed of trust encumbering property located at 3350 Y Street, Sacramento, California 95817. See RJN, Ex. A. Robinson soon defaulted. See RJN, Ex. B. In 2009, she entered into a loan modification agreement with GMACM, which granted her a fixed interest rate of 1% until 2014. See RJN, Ex. C. Despite the modification, Robinson soon defaulted again. See RJN, Ex. D. Robison then filed a lawsuit about her defaulted loan in May 2012, Tena Robinson v. GMAC Mortgage, LLC, et al. (Sacramento County Superior Court Case No. 34-2012-00123823). Case 2:14-cv-01669-MCE-EFB Document 5 Filed 07/22/14 Page 11 of 25 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 21000.0220/3345816.1 4 MOTION TO DISMISS In her first amended complaint filed on December 17, 2012, Robinson asserted that GMACM “is the purported current servicer of the Subject Loan and was the purported servicer at all relevant times ….” RJN, Ex. E (FAC ¶ 3). In September 2012, GMACM offered Robinson a “Loan Workout Plan” or Trial Period Plan (“TPP”). See RJN, Ex. F. Among other provisions, the TPP called for Robinson to make three payments of $1,421.05 to GMACM from October 2012 to December 2012. See RJN, Ex. F. In this lawsuit, Robinson alleges, incorrectly, that Ocwen offered her a TPP in the fall of 2012. See Compl. ¶ 13. She avers making three TPP payments of $1,421.05 in October, November, and December 2012. See id. ¶¶ 13-14. Despite making the three payments, “OCWEN refused to provide her with a final loan modification for the Subject Loan.” Id. ¶ 16. Robison also repeatedly avers that Ocwen “is now threatening to foreclose” on her house, although no notice of default, the first step in the non-judicial foreclosure process, has been recorded. See id. ¶ 17; see also ¶¶ 3, 18, 22, 30, 41. She filed this second lawsuit about her loan on June 11, 2014. III. ROBINSON’S CLAIMS ARE REALLY AGAINST GMACM AND SHE IS PRECLUDED BY BANKRUPTCY COURT ORDER FROM PURSUING THEM AGAINST OCWEN Robinson’s complaint should be dismissed because her claims are really against GMACM. It was GMACM that made the TPP offer to Robinson, not Ocwen. See RJN, Ex. F. The Court may take judicial notice of the TPP offer. “Even if a document is not attached to a complaint, it may be incorporated by reference into a complaint if the plaintiff refers extensively to the document or the documents forms the basis of the plaintiff’s claims.” United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). “The defendant may offer such a document, and the district court may treat such a document as part of the complaint, and thus may assume that its contents are true for purposes of a motion to dismiss under Rule 12(b)(6).” Id. The policy concern underlying the rule is to prevent plaintiffs “from surviving a Rule 12(b)(6) motion by deliberately omitting references to documents upon which their claims are based.” Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998), superseded by statute on other grounds as recognized in Abrego Abrego v. The Down Chem. Co., 443 F.3d 676, 681 (9th Cir. 2006). Numerous courts have taken judicial Case 2:14-cv-01669-MCE-EFB Document 5 Filed 07/22/14 Page 12 of 25 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 21000.0220/3345816.1 5 MOTION TO DISMISS notice of loan modification contracts or TPPs.1 Robinson refers extensively to the TPP offer throughout her complaint. See Compl. ¶¶ 3, 13, 14, 16, 17, 21, 22, 23, 27, 29, 33. The alleged offer to modify her loan is the basis of all of her claims. Thus, the Court make properly take notice of the TPP offer. And doing so will further the policy goal of not allowing Robinson to survive a Rule 12(b)(6) motion by deliberating omitting the very contract that she alleges Ocwen breached. The Court will see that the TPP offer was made by GMACM. See RJN, Ex. F. It will find that the three payments were to be made to GMACM. See id. And the Court will see that Ocwen is never mentioned in the TPP offer nor a party to it. See id. Moreover, Robinson previously asserted in her first lawsuit that GMACM was her loan servicer as of December 2012, the time of the TPP offer. See RJN, Ex. F. This assertion is a judicial admission. See, e.g., Hakopian v. Mukasey, 551 F.3d 843, 846 (9th Cir. 2008) (“Allegations in a complaint are considered judicial admissions.”); Am. Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 226 (9th Cir. 1988) (“[f]actual assertions in pleadings … are considered judicial admissions” and “[j]udicial admissions are formal admissions in the pleadings which have the effect of withdrawing a fact from issue and dispensing wholly with the need for proof of the fact.”); Gradetech, Inc. v. Am. Emp’rs Grp., 2006 WL 1806156, at *3 (N.D. Cal. 2006); Hall v. United States, 314 F.Supp. 1135, 1137 (N.D. Cal. 1970) (allegation in a complaint was a binding judicial admission). The judicially noticeable TPP offer and Robinson’s judicial admission demonstrate that this entire lawsuit is aimed at the wrong party. Ocwen did not make the TPP offer and is not liable for GMACM’s purported failure to honor it. 1 See, e.g., Owens v. Bank of Am., N.A., 2012 WL 5340577, at *1 n.2 (N.D. Cal. 2012) (“Plaintiffs rely on the [loan modification] letter itself extensively in their arguments about the nature of their claims here. Accordingly, the Court finds the document a proper subject of judicial notice in connection with the motions to dismiss.”); Lazo v. Bank of Am., N.A., 2012 WL 1831577, at *1, n.3 (N.D. Cal. 2012) (“Plaintiffs’ complaint depends upon the Loan Modification Trial Period Plan, so the court may properly take judicial notice of the facts contained in it, too.”); Sutcliffe v. Wells Fargo Bank, N.A. 283 F.R.D. 533, 537 n.2 (N.D. Cal. 2012). Case 2:14-cv-01669-MCE-EFB Document 5 Filed 07/22/14 Page 13 of 25 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 21000.0220/3345816.1 6 MOTION TO DISMISS Ocwen is not a successor in liability to GMACM and Robinson is precluded by bankruptcy court order from suing Ocwen for claims against GMAMC. On May 14, 2012, Residential Capital, LLC and certain of its direct and indirect subsidiaries, including GMACM, filed Chapter 11 bankruptcy petitions in the United States Bankruptcy Court for the Southern District of New York. Their bankruptcy proceedings were jointly administered under case no. 12-12020, In re Residential Capital, LLC. On December 11, 2013, the bankruptcy court entered an order confirming the Debtors’ Chapter 11 plan (the “Confirmation Order”). See RJN, Ex. G. Prior to issuance of the Confirmation Order, Ocwen and GMACM entered into an Asset Purchase Agreement (“Asset Purchase Agreement”). See RJN, Ex. H. On November 21, 2012, the bankruptcy court issued an order approving the sale of debtors’ assets (including GMACM’s assets) to Ocwen (the “Asset Purchase Order”). See RJN, Ex. I. Among other things, the Asset Purchase Order provided that Ocwen acquired GMACM’s assets free and clear of claims, aside from those specifically classified “assumed liabilities,” as defined by the Asset Purchase Agreement.2 Specifically, the Asset Purchase Order states that “the relief provided for in this Order” includes the right to be “free and clear of all Interests and including rights or Claims based upon successor or transferee liability, Claims or Liabilities relating to any act or omission of any originator, holder or servicer of Mortgage Loans prior to the Closing Date [February 15, 20133].” See RJN, Ex. I (p. 13, ¶ R; see also pp. 2-3, 20, ¶ W(9)). As the Asset Purchase Order recognizes, “[Ocwen] would not have entered into the Ocwen APA [Asset Purchase Agreement] and would 2 “Assumed Liabilities” are defined at Section 1.1 of the Asset Purchase Agreement. While “assumed liabilities” do include those liabilities arising from the conduct of the “business . . . engaged in by Sellers,” including GMACM, the business must have been conducted “on or after the Closing,” which took place on February 15, 2013. See RJN, Ex. H (Article I, Section 1.1, p. 4). Here, the alleged loan modification offer was made before that time. Both the Assert Purchase Agreement and Asset Purchase Order were confirmed by the Confirmation Order. See RJN, Ex. G (Confirmation Order, Section II, ¶ 31). 3 In re Residential Capital, LLC, 2013 WL 3286198, at *3 (Bankr. S.D.N.Y. 2013) (“On November 19, 2012, the Court approved the Debtors’ sale of (i) their mortgage servicing businesses … [including] a sale to Ocwen Loan Servicing, LLC that closed on February 15, 2013.”). Case 2:14-cv-01669-MCE-EFB Document 5 Filed 07/22/14 Page 14 of 25 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 21000.0220/3345816.1 7 MOTION TO DISMISS not consummate the Transactions without all of the relief provided for in this Order.” RJN, Ex. I (p. 13, ¶ R). In sum, to the extent that Robinson’s claims are in reality claims against GMACM, and rely on successor or transferee liability against Ocwen, they are barred by the bankruptcy court’s Confirmation Order and Asset Purchase Order. IV. THE BREACH OF CONTRACT CLAIM IS DEFECTIVELY PLEADED Besides being barred by the bankruptcy court’s order, each of Robinson’s causes of action against Ocwen fail as a matter of law. Robinson’s first cause of action is for breach of contract. She alleges that “OCWEN breached the contract with [her] by failing to provide her with a final loan modification as stated in the agreement.” Compl. ¶ 22. The standard elements for a breach of contract claim are: “(1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) damage to plaintiff therefrom.” Wall St. Network, Ltd. v. New York Times Co., 164 Cal.App.4th 1171, 1178 (2008) (citation omitted); see also McKell v. Washington Mut., Inc., 142 Cal.App.4th 1457, 1489 (2006). A. The Alleged Terms Of The Contract Are Not Stated As mentioned, Robison neither attaches a copy of the TPP offer to her complaint nor sets out any of its relevant provisions in her pleading. Her contract claim based on the TPP offer is therefore insufficiently pleaded. An action founded on contract must state whether the contract is written, oral, or implied by conduct. See CAL. CODE CIV. PROC. § 430.10(g). Furthermore, “[t]o state a cause of action for breach of contract, it is absolutely essential to plead the terms of the contract either in haec verba or according to legal effect.” Progressive West Ins. Co. v. Superior Court, 135 Cal.App.4th 263, 270 n.1 (2005); see also Gilmore v. Lycoming Fire Ins. Co., 55 Cal. 123, 124 (1880) (“Where a party relies upon a contract in writing, and it affirmatively appears that all the terms of the contract are not set forth in haec verba, nor stated in their legal effect, but that a portion which may be material has been omitted, the complaint is insufficient.”); Heritage Pac. Fin., LLC v. Monroy, 215 Cal.App.4th 972, 993 (2013); 4 Witkin, Cal. Procedure, Pleading, §§ 518-520, pp. 650-51 (5th ed. 2008). Case 2:14-cv-01669-MCE-EFB Document 5 Filed 07/22/14 Page 15 of 25 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 21000.0220/3345816.1 8 MOTION TO DISMISS If the plaintiff chooses the in haec verba alternative, “the terms must be set out verbatim in the body of the complaint or a copy of the written instrument must be attached and incorporated by reference.” Otworth v. S. Pac. Transp. Co., 166 Cal.App.3d 452, 458 (1985) (citing Wise v. S. Pac. Co., 223 Cal.App.2d 50, 59 (1963)). Otherwise, the contract must be pleaded by its legal effect, but “[t]his is more difficult, for it requires a careful analysis of the instrument, compre- hensiveness in statement, and avoidance of legal conclusions.” McKell, 142 Cal.App.4th at 1489. Robison hints of a written agreement, but never affirmatively alleges whether the contract is oral, written, or was implied by conduct. Since an agreement to modify the terms of a loan se- cured by real property must be in writing, Robinson has not alleged the existence of an enforceable contract since she alleges no writing. See CAL. CIV. CODE § 1624(a)(6); Secrest v. Security Nat’l Mortg. Loan Trust 2002-2, 167 Cal.App.4th 544, 555 (2008). And no written agreement is pleaded in haec verba or pleaded by its legal effect. Robinson merely alleges in conclusory fashion that she was offered a permanent loan modification via a TPP. She does not set out in her complaint “a careful analysis of the instrument, compre- hensiveness in statement, and avoidance of legal conclusions.” With no allegations setting out any terms of the agreement that were breached, Robinson does not properly plead a breach of contract. B. Robinson Does Not Plead The Existence Of Terms Showing An Enforceable Contract Robinson’s skeletal pleading leads to a related problem. She has no breach of contract claim because she has not alleged even a single term of the agreement. A loan contract requires terms such as the amount, repayment schedule, and interest rate. Absent these required terms, no breach of contract claim will lie. A contract is void and unenforceable where it is so uncertain and indefinite that the intention of the parties on material questions cannot be ascertained. See Ladas v. California State Auto Ass’n, 19 Cal.App.4th 761, 770 (1993); see also Price v. Wells Fargo Bank, 213 Cal.App.3d 465, 483 (1989), overruled on other grounds in Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Ass’n, 55 Cal.4th 1169, 1182 (2013) (in order to constitute a legal contract, a loan agreement must embody definite terms that are capable of enforcement). “Under the law of California, … no loan contract is formed if an essential element is missing.” Grimes v. New Case 2:14-cv-01669-MCE-EFB Document 5 Filed 07/22/14 Page 16 of 25 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 21000.0220/3345816.1 9 MOTION TO DISMISS Century Mortg. Corp., 340 F.3d 1007, 1010 (9th Cir. 2003); see also Jackson v. Grant, 890 F.2d 118, 120 (9th Cir. 1989). To be sufficiently definite to be enforceable, a loan contract should include the identity of the lender and borrower, the loan amount, and repayment terms. See Peterson Dev. Co. v. Torrey Pines Bank, 233 Cal.App.3d 103, 115 (1991). The interest rate is another essential element to a loan contract. See Grimes, 340 F.3d at 1010. Other than the identity of the parties, Robinson does not allege or demonstrate a single term essential to the creation of an enforceable loan contract. Robinson does not show that the supposed modified loan is for any particular amount. She does not aver that there is a particular term or number of repayments or that the parties agreed on loan repayments of any given amount. She does not allege a specific interest rate. Most of the essential terms are absent. A supposed loan modification agreement so lacking in essential terms is unenforceable. See Price, 213 Cal.App.3d at 483. C. Facts Showing Damages Are Missing Damages are another element necessary for a breach of contract claim. Robinson’s primary alleged injury is the supposed “commence[ment of] foreclosure proceedings against Plaintiff.” Compl. ¶ 22; see also Compl. ¶¶ 3, 17, 18, 30, 41. There is no pending foreclosure. No notice of default, the first step in the non-judicial foreclosure process, has been recorded. No foreclosure can take place without the prior recording of a notice of default and a notice of trustee’s sale. See CAL. CIV. CODE § 2924(a)(1). And the mere threat of a future foreclosure is not a legally cognizable form of damages in any event. See, e.g., Low v. LinkedIn Corp., 900 F.Supp.2d 1010, 1028 (N.D. Cal. 2012) (“Nominal damages, speculative harm, or threat of future harm does not suffice to show legally cognizable injury” for a breach of contract claim.”). Other than a non-existent foreclosure, Robinson points to attorney fees, damage to credit, and emotional suffering. See Compl. ¶¶ 24, 28, 30, 35, 41. Attorney fees are not cognizable damages under the “American rule.” Parties bear their own attorneys’ fees unless they agree or a statute says otherwise. See, e.g., See Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep’t of Health & Human Res., 532 U.S. 598, 602 (2001); Sheet Case 2:14-cv-01669-MCE-EFB Document 5 Filed 07/22/14 Page 17 of 25 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 21000.0220/3345816.1 10 MOTION TO DISMISS Metal Workers’ Int’l Ass’n Local Union No. 359 v. Madison Indus., Inc., 84 F.3d 1186, 1192 (9th Cir. 1996); Trope v. Katz, 11 Cal.4th 274, 278 (1995) (“California follows what is commonly referred to as the American rule, which provides that each party to a lawsuit must ordinary pay his own attorney fees.”); Cargill, Inc. v. Souza, 201 Cal.App.4th 962, 966 (2011) (“Each party to a lawsuit must pay his or her own attorney gees except where a statute or contract provides otherwise.”). Generally, emotional distress is also not a form of cognizable damages to support a breach of contract claim. See, e.g., Gibson v. Office of the Attorney General, 561 F.3d 920, 929 (9th Cir. 2009) (“The only alleged damages are for emotional and physical distress, neither of which is recoverable on a California contract claim.”); Low, 900 F.Supp.2d at 1028 (“Emotional and physical distress damages are not recoverable on a California contract claim.”); Applied Equipment Corp. v. Litton Saudi Arabia Ltd., 7 Cal.4th 503, 516 (1994) (“damages for mental suffering and emotional distress are … not compensable in contract actions.”). As far as alleged damage to her credit, Robinson does not aver facts showing any damage to her credit by Ocwen. Robinson does not deny defaulting on her loan. Any resulting credit damage was caused by her own default, not Ocwen. Robinson does not plead whether there was an oral or written contract. She does not plead any provision of a contract that Ocwen breached. She does not aver the existence of terms making any loan contract enforceable. And she does not allege any cognizable damages. Her breach of contract claim should be dismissed. V. THE BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING FAILS FOR WANT OF ANY EXPRESS CONTRACT PROVISION THAT WAS FRUSTRATED Robinson’s second cause of action, for breach of the implied covenant of good faith and fair dealing, is premised on the same allegation that “OCWEN failed to provide [her] with a final loan modification ….” Compl. ¶ 26. California does not permit recovery in tort for breach of the implied covenant except in the insurance context. See, e.g., Harris v. Wachovia Mortg., F.S.B., 185 Cal.App.4th 1018, 1023 (2010). Case 2:14-cv-01669-MCE-EFB Document 5 Filed 07/22/14 Page 18 of 25 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 21000.0220/3345816.1 11 MOTION TO DISMISS A contract claim for breach of the implied covenant can be stated, but only by pleading facts showing that the defendant frustrated rights or reasonable expectations raised by a contract’s express provisions. Lingad v. Indymac Fed. Bank, 682 F.Supp.2d 1142, 1154 (E.D. Cal. 2010). The covenant of good faith exists “to protect the express covenants or promises of [a] contract.” McClain v. Octagon Plaza, LLC, 159 Cal.App.4th 784, 799 (2008). Thus, the covenant must “‘rest[ ] upon the existence of some specific contractual obligation.’” Sipe v. Countrywide Bank, 690 F.Supp.2d 1141, 1160 (E.D. Cal. 2010) (quoting Racine & Laramie, Ltd. v. Dep’t of Parks & Recreation, 11 Cal.App.4th 1026, 1031-32 (1992)). In other words, the complaint must tether a defendant’s alleged breaches of the implied covenant to particular express contractual obligations in order to state a viable claim for breach of the implied covenant. Robinson does not identify a single express provision of the contract and therefore does not plead what express provision Ocwen purportedly frustrated. VI. ROBINSON HAS NO PROMISSORY ESTOPPEL CLAIM Robinson’s promissory estoppel claim suffers from the same lack of substantiating facts. “The elements of a promissory estoppel claim are ‘(1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) [the] reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance.’” US Ecology, Inc. v. State of Cal., 129 Cal.App.4th 887, 905 (2005) (quoting Laks v. Coast Fed. Sav. & Loan Ass’n, 60 Cal.App.3d 885, 890 (1976)). All elements of a promissory estoppel claim must be pleaded with specificity. See Smith v. San Francisco, 225 Cal.App.3d 38, 48 (1990). A. A Clear And Unambiguous Promise Is Not Alleged As shown in the TPP itself, Ocwen did not make any promise to Robinson. The complaint itself alleges no clear and unambiguous promise. It alleges only that Ocwen promised to permanently modify Robinson’s loan after she made three payments. It does not allege how Robinson’s loan was to be modified. There is no averment of whether there was to be some principal reduction or if all arrearages were to be recapitalized with a higher loan amount. It does not allege whether the loan was to be modified by extending it from a 30-year loan to a 40-year Case 2:14-cv-01669-MCE-EFB Document 5 Filed 07/22/14 Page 19 of 25 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 21000.0220/3345816.1 12 MOTION TO DISMISS loan. No specifics are offered about the new monthly payment amount. Robinson does not allege what the interest rate was to be on this modified loan. Robinson does not aver any specific about how her loan terms were to be changed. B. Facts Demonstrating Reasonable Reliance Are Not Alleged It is not reasonable to rely on a supposed promise of a loan modification containing no terms. Cf. Weddington Prods., Inc. v. Flick, 60 Cal.App.4th 793, 813 (1998). As previously discussed, the essential terms of a loan agreement are the identities of the lender and borrower, the loan amount, the repayment terms, and the interest rate. See Grimes, 340 F.3d at 1010; Peterson Dev. Co., 233 Cal.App.3d at 115. There is no averment of what the parties agreed would be the modified loan amount, its repayment terms, or the interest rate. A mere “hopeful expectation” of a favorable change in loan terms does not amount to reasonable reliance. See Kruse v. Bank of Am., 202 Cal.App.3d 38, 55 (1988). C. Facts Demonstrating Injury Are Not Alleged Robinson does not allege facts demonstrating any injury. She refers vaguely to “Defendant’s collection and/or threatened foreclosure proceedings and other activities ….” Compl. ¶ 18. No notice of default, the first step in the non-judicial foreclosure process, has been recorded. Ocwen is Robinson’s current loan servicer, so it has every right to attempt to collect payments owed on the loan. And merely making the three monthly payments constituted no injury. Making payments on the loan, or reduced payments on the loan, does not amount to any sort of injury because Robinson was already contractually obligated to make those payments. See, e.g., Auerbach v. Great W. Bank, 74 Cal.App.4th 1172, 1185-87 (1999). Accordingly, the promissory estoppel claim should be dismissed. VII. THE NEGLIGENCE CLAIMS FAILS FOR WANT OF A COGNIZABLE DUTY AND IS PRECLUDED BY THE ECONOMIC LOSS DOCTRINE Robinson’s fourth cause of action is a negligence claim. She alleges that Ocwen owed her “duties of care,” which it breached “by engaging in the conduct complained of herein.” Compl. ¶¶ 38, 39. Case 2:14-cv-01669-MCE-EFB Document 5 Filed 07/22/14 Page 20 of 25 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 21000.0220/3345816.1 13 MOTION TO DISMISS The claim fails for want of a cognizable duty. “An action in negligence requires a showing that the defendant owed the plaintiff a legal duty, that the defendant breached the duty, and that the breach was a proximate or legal cause of injuries suffered by the plaintiff.” Ann M. v. Pac. Plaza Shopping Ctr., 6 Cal.4th 666, 673 (1993) (“The existence of a duty of care toward an interest of another worthy of legal protection is the essential prerequisite to a negligence cause of action, determined as a matter of law by the court.”) (citation omitted); Software Design & Application, Ltd. v. Hoefer & Arnett, Inc., 49 Cal.App.4th 472, 478 (1996) (“The existence of a duty of care toward an interest of another worthy of legal protection is the essential prerequisite to a negligence cause of action, determined as a matter of law by the court.” ). Engaging in the loan modification process is a traditional money lending activity giving rise to no duty of care. See Fevinger v. Bank of Am., N.A., 2014 WL 1338301, at *7 (N.D. Cal. 2014) (agreeing “with the great weight of authority” holding that loan modification activities “are within the traditional scope of” lender activities giving rise to “no duty of care regarding” a loan modification application.); Meyer v. Wells Fargo Bank, N.A., 2013 WL 6407516, at *5 (N.D. Cal. 2013). “[A] loan modification is the renegotiation of loan terms, which falls squarely within the scope of a lending institution’s conventional role as a lender of money.” Lueras v. BAC Home Loans Serv., LP, 221 Cal.App.4th 49, 67 (2013); see also Benson v. Ocwen Loan Servicing, LLC, - Fed. Appx. -, 2014 WL 962022, at *1 (9th Cir. 2014) (“The duty of care imposed on construction lenders, see Jolley …, does not apply in the residential loan context, Lueras ….”); Williams v. Wells Fargo Bank, N.A., 2014 WL 1568857, at *7 (C.D. Cal. 2014) (“The Court concludes in accordance with the line of cases holding that loan modification-a renegotiation of the loan’s terms-is so related to ‘the key functions of a money lender’ as to not give rise to an enforceable duty of care to the borrower.”); Robinson v. Bank of Am., N.A., 2014 WL 60969, at *4-5 (N.D. Cal. 2014); Sanguinetti v. Citi Mortg., Inc., 2013 WL 4838765, at *4-6 (N.D. Cal. 2013); Ragland v. U.S. Bank Nat’l Ass’n, 209 Cal.App.4th 182, 207 (2012) (“This advice was directly related to the issue of loan modification and therefore fell within the scope of [bank]’s conventional role as a lender of money.”). Case 2:14-cv-01669-MCE-EFB Document 5 Filed 07/22/14 Page 21 of 25 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 21000.0220/3345816.1 14 MOTION TO DISMISS Any negligence claim is also precluded by the economic loss doctrine. “[P]laintiffs may recover in tort for physical injury to person or property, but not for purely economic losses that may be recovered in a contract action.” San Francisco Unified Sch. Dist. v. W.R. Grace & Co., 37 Cal.App.4th 1318, 1327 (1995); see also Seely v. White Motor Co., 63 Cal.2d 9, 18-19 (1965). Robinson has alleged no injury to her person or property. Economic losses alone will not support this tort action. Robinson alleges she has a contract with Ocwen regarding the loan modification. Thus, any relief she has lies in a contract action, not one sounding in tort. VIII. THE DERIVATIVE SECTION 17200 CLAIM IS NOT VIABLE In her fifth and final cause of action, Robison avers that “OCWEN’s acts, as alleged herein, constitute unlawful, unfair and/or fraudulent business practices, as defined by California Business and Professions Code §17200, et seq.” Compl. ¶ 43. This section 17200 claim is based on the same theory that Ocwen failed to deliver on a promised permanent loan modification. Because it is entirely derivative of the faulty substantive claims discussed above, it also fails to allege a viable claim. See Glenn K. Jackson Inc. v. Roe, 273 F.3d 1192, 1203 (9th Cir. 2001) (dismissing § 17200 claim where underlying negligence and fraud claims were insufficient as a matter of law); Krantz v. BT Visual Images, L.L.C., 89 Cal.App.4th 164, 178 (2001) (the viability of a § 17200 claim stands or falls with the antecedent substantive causes of action); People v. Duz-Mor Diagnostic Lab., Inc., 68 Cal.App.4th 654, 673 (1998) (a defense to the underlying offense is a defense under § 17200). Robinson also has no section 17200 claim against Ocwen based on GMACM’s purported actions. There is no vicarious liability under section 17200. See Emery v. Visa Int’l Service Ass’n, 95 Cal.App.4th 952, 960 (2002). A defendant’s liability under section 17200 must be based on its own participation in the allegedly unlawful practice. See People v. Toomey, 157 Cal.App.3d 1, 14 (1984). Moreover, to state a section 17200 claim, Robinson must allege facts showing she suffered an economic injury caused by Ocwen’s allegedly unlawful, unfair or fraudulent conduct. See Kwikset Corp. v. Superior Court, 51 Cal.4th 310, 326-27 (2011). “‘A plaintiff fails to satisfy the causation prong of the statute if he or she would have suffered ‘the same harm whether or not a Case 2:14-cv-01669-MCE-EFB Document 5 Filed 07/22/14 Page 22 of 25 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 21000.0220/3345816.1 15 MOTION TO DISMISS defendant complied with the law.’ ’” Jenkins v. JP Morgan Chase Bank, N.A., 216 Cal.App.4th 497, 522 (2013) (quoting Daro v. Superior Court, 151 Cal.App.4th 1079, 1099 (2007)). There has been no foreclosure and the possibility of a future foreclosure is the result of Robinson’s default, not Ocwen’s alleged failure to modify her loan. See, e.g., Roussel v. Wells Fargo Bank, N.A., 2012 WL 5301909, at *7 (N.D. Cal. 2012) (observing that the plaintiff lacked section 17200 standing because the defendant’s allegedly wrongful denial of loan modification “was not the cause of the imminent foreclosure of Plaintiff’s home; rather, Plaintiff’s default on his mortgage caused the imminent foreclosure”); Solomon v. Aurora Loan Servs. LLC, 2012 WL 257759, at *5, *7 (E.D. Cal. 2012) (finding no section standing when plaintiff was already in default on her mortgage, because “[i]t was [plaintiff’s] default that caused the foreclosure that caused her injury, not defendant’s denial of a home loan modification”); Serna v. Bank of Am., N.A., 2012 WL 2030705, at *5 (C.D. Cal. 2012) (noting plaintiffs have no section 17200 standing because they “have not alleged how the impending foreclosure was caused by defendants’ actions, as plaintiffs do not contest that they defaulted on their loan”); Phipps v. Wells Fargo Bank, N.A., 2011 WL 302803, at *17 (E.D. Cal. 2011). As for attorney fees, “[Robinson’s] contention that ‘legal fees’ and costs is sufficient to satisfy the injury-in-fact requirement [under section 17200] is unpersuasive; such a finding would mean that ‘a private plaintiff bringing a UCL claim automatically would have standing merely by filing suit.’” Serna v. Bank of Am., N.A., 2012 WL 2030705, at *5 (C.D. Cal. 2012) (citing Cordon v. Wachovia Mortg., 776 F.Supp.2d 1029, 1039 (N.D. Cal. 2011)); see also Cordero v. Bank of Am., 2013 WL 4590826, at *3 (C.D. Cal. 2013); Thompson v. Residential Credit Solutions, Inc., 2012 WL 260357, at *5 (E.D. Cal. 2012) (concluding that there is no authority to suggest that attorneys’ fees and costs incurred in bringing a section 17200 claim are sufficient to confer standing).) Finally, Robinson has no form of relief under section 17200. The remedies available under section 17200 are “generally limited to injunctive relief and restitution.” Korea Supply Co. v. Lockheed Martin Co., 29 Cal.4th 1134, 1144 (2003) (citation omitted). Unless a contract is specifically enforceable, an injunction to prevent its breach is not an available remedy. See, e.g., Thayer Plymouth Center, Inc. v. Chrysler Motors Corp., 255 Case 2:14-cv-01669-MCE-EFB Document 5 Filed 07/22/14 Page 23 of 25 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 21000.0220/3345816.1 16 MOTION TO DISMISS Cal.App.2d 300, 304 (1967); Adams v. Williams Resorts, Inc., 210 Cal.App.2d 456, 463 (1962). California Code of Civil Procedure § 526(b)(5) provides that “An injunction cannot be granted” “To prevent the breach of a contract the performance of which would not be specifically enforced, other than a contract in writing for the rendition of personal services ….” The alleged loan modification contract here is not specifically enforceable. Under California Civil Code § 3390, “An agreement, the terms of which are not sufficiently certain to make the precise act which is to be done clearly ascertainable,” “cannot be specifically enforced.” See also Blackburn v. Charnley, 117 Cal.App.4th 758, 766 (2004) (to establish a right to specific performance, a plaintiff must establish that the contract terms are sufficiently definite, among other things)). “The contract must not only contain all the material terms, but the terms must, in the language of the Code, be ‘sufficiently certain to make the precise act which is to be done clearly ascertainable.’” Anderson v. Permenter, 78 Cal.App.2d 378, 382 (1947). The alleged agreement to modify Robinson’s loan is missing nearly all material terms- amount, repayment, and interest rate. Without these material terms, the agreement is not specifically enforceable. In addition, Robinson cannot obtain injunctive relief because she cannot show that there is any likelihood that she might again be affected by the unfair competition-the purported failure to modify her loan. She will not again be subjected to that conduct. “Injunctive relief has no application to wrongs which have been completed, absent a showing that past violations will probably recur.” Toomey, 157 Cal.App.3d at 20; Madrid, 130 Cal.App.4th at 465. And no restitution remedy is available. Restitution means to “restore to any person any money or property, real or personal, which may have been acquired by means of such unfair competition.” CAL. BUS. & PROF. CODE § 17203. For restitution to be available, the “offending party must have obtained something to which it was not entitled and the victim must have given up something which he or she was entitled to keep.” Day v. AT&T Corp., 63 Cal. App.4th 325, 340 (1998) (emphasis original). There are no allegations that Robinson gave anything to Ocwen to which it was not entitled and that which Robinson was entitled to keep. A defaulted borrower is not entitled to keep the Case 2:14-cv-01669-MCE-EFB Document 5 Filed 07/22/14 Page 24 of 25 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 21000.0220/3345816.1 17 MOTION TO DISMISS house she gave as security for the loan. See Khan v. CitiMortgage, Inc., 975 F.Supp.2d 1127, 1144 (E.D. Cal. 2013) (“Foreclosure of the property fails to support a UCL claim in the absence of allegations of the [plaintiff’s] performance to avoid default.”).) Robinson has no viable claim for relief with her section 17200 claim. This cause of action should be dismissed. IX. CONCLUSION For the reasons stated above, Robinson’s complaint against Ocwen fails to state any viable claim for relief. Hence, the complaint should be dismissed. If Robinson is permitted to amend any portion of her complaint, she should be directed to file any first amended complaint within twenty days of the Court’s Order. She should also be directed to attach a copy of the contract she alleges was breached. DATED: July 22, 2014 SEVERSON & WERSON A Professional Corporation By: /s/ Evelina Manukyan Evelina Manukyan Attorneys for Defendant OCWEN LOAN SERVICING, LLC Case 2:14-cv-01669-MCE-EFB Document 5 Filed 07/22/14 Page 25 of 25