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Herrera v. Streamline Funding, Inc.

United States District Court, N.D. California
May 26, 2011
Case No. C-11-709 SC (N.D. Cal. May. 26, 2011)


finding "no support in the law" for the same arguments raised by Plaintiffs here

Summary of this case from Dela Cruz v. Washington Mut. Bank


Case No. C-11-709 SC.

May 26, 2011



Plaintiffs Luis and Rosario Herrera ("Plaintiffs") commenced this action in California Superior Court for the County of San Mateo, bringing seventeen claims against Defendants Streamline Funding, Inc. ("Streamline"); Washington Mutual Bank, FA ("WaMu"); JPMorgan Chase Bank, N.A. ("Chase"); the Federal Deposit Insurance Corporation ("FDIC"); California Reconveyance Company ("CFC"); and one hundred fictitious Doe Defendants (collectively, "Defendants"). ECF No. 1 ("Notice of Removal") Ex. B ("Compl."). The FDIC removed the action to federal court under 12 U.S.C. § 1819(b)(2)(B), which permits the FDIC to remove any state court action within ninety days of the FDIC being named as a party. See Notice of Removal.

Plaintiffs erroneously identified the FDIC as "Federal Deposit Insurance Company" in their Complaint. See Compl.

Now before the Court are two fully briefed motions. FDIC moves to dismiss Plaintiffs' Complaint. ECF Nos. 3 ("FDIC MTD"), 10 ("MTD Opp'n"), 16 ("MTD Reply"). The FDIC separately moves to strike portions of Plaintiffs' Complaint. ECF Nos. 4 ("MTS"), 15 ("MTS Opp'n"), 18 ("MTS Reply"). In addition, Chase and CFC move jointly to dismiss Plaintiffs' Complaint. ECF No. 11 ("Chase MTD"). Plaintiffs did not respond to this Motion. For the following reasons, the Court GRANTS the FDIC's MTD and Chase's and CFC's unopposed MTD.


As it must on a Federal Rule of Civil Procedure 12(b)(6) motion, the Court assumes the truth of the well-pleaded facts in Plaintiffs' Complaint. Plaintiffs are a married couple residing in San Bruno, California. Compl. ¶ 2. Around August 2007, Plaintiffs entered into an adjustable rate mortgage refinance loan agreement ("ARM") with Washington Mutual Bank ("WaMu"). Id. Defendant Streamline Funding ("Streamline") served as the broker in this transaction. Id. ¶ 3. Plaintiffs allege wrongdoing on the part of Streamline and WaMu in this loan origination. Specifically, Plaintiffs allege that Streamline failed to provide complete disclosure of the terms of the loan closing prior to actual signing. Id. ¶ 26. Plaintiffs also allege that WaMu paid Streamline more than $28,000 in a "yield spread premium," which "increased the interest rate of the loan over and above that which the Plaintiffs would have qualified for." Id. ¶ 27. Plaintiffs allege that "Defendants were complicit in a scheme" to issue an "illegal" loan to Plaintiffs that Plaintiffs should never have qualified for, given their income. Id.

On September 25, 2008, the Office of Thrift Supervision ("OTS") closed WaMu and appointed the FDIC as its receiver. Id. ¶ 4. Plaintiffs allege that Chase is the servicer of the ARM, and CRC is the trustee for the ARM. Id. ¶¶ 6, 7. The Complaint makes no other references to Chase and CRC individually; rather, it makes a number of allegations against "all Defendants."

Plaintiffs bring seventeen causes of action in their Complaint. Against Streamline, they bring a claim for breach of fiduciary duty. Against all Defendants, they allege breach of California's implied covenant of good faith and fair dealing; deceit; violation of California's Unfair Competition Law ("UCL"); promissory estoppel; intentional misrepresentation; fraud by concealment; restitution for unjust enrichment; quiet title; violation of the California Rosenthal Act; civil conspiracy; declaratory relief; rescission; accounting; violation of sections 2934(d) and 2934(e) of California's Code of Civil Procedure; unjust enrichment; and preliminary and permanent injunctive relief. Id.

In its MTD, the FDIC argues that this Court lacks subject matter jurisdiction to hear the claims brought against the FDIC because Plaintiffs have failed to exhaust the administrative remedies available. See FDIC MTD. In their MTD, Chase and CRC make numerous challenges to the legal sufficiency of the sixteen claims brought against them by Plaintiffs. See Chase MTD.


A. Rule 12(b)(1)

When a defendant submits a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), the plaintiff bears the burden of establishing the propriety of the court's jurisdiction. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). As a court of limited jurisdiction, "[a] federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears." Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989). A Rule 12(b)(1) jurisdictional attack may be facial or factual. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000) (citation omitted). In a facial attack, the defendant challenges the basis of jurisdiction as alleged in the complaint. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In such a case, the court assumes the truth of the factual allegations, and draws all reasonable inferences in the plaintiff's favor. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004).

B. Rule 12(b)(6)

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) "tests the legal sufficiency of a claim." Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). "When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 129 S. Ct. at 1950 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The allegations made in a complaint must be both "sufficiently detailed to give fair notice to the opposing part of the nature of the claim so that the party may effectively defend against it" and sufficiently plausible such that "it is not unfair to require the opposing party to be subjected to the expense of discovery."Starr v. Baca, 633 F.3d 1191, 1204 (9th Cir. 2011).



The FDIC moves to dismiss the Plaintiffs' action under Rule 12(b)(1), arguing inter alia that because Plaintiffs do not claim to have exhausted FDIC administrative remedies, this Court lacks jurisdiction. FDIC MTD at 6-8.

Under the Financial Institutions Reform, Recovery, and Enforcement Act ("FIRREA"), the FDIC, in its role as receiver for failed institutions, may implement a mandatory administrative claims review process. 12 U.S.C. §§ 1821(d)(3). The Ninth Circuit has held that FIRREA applies to claims made by both creditors and debtors. McCarthy v. Fed. Deposit Ins. Corp., 348 F.3d 1075, 1077 (9th Cir. 2003). FIRREA also limits the jurisdiction of courts over claims asserted outside the context of the administrative process. 12 U.S.C. § 1821(d)(13)(D). Specifically, it provides:

[N]o court shall have jurisdiction over
(i) any claim or action for payment from, or any action seeking a determination of rights with respect to, the assets of any depository institution for which [the FDIC] has been appointed receiver, including assets which [the FDIC] may have acquired from itself as receiver; or
(ii) any claim relating to any act or omission of such institution or [the FDIC] as receiver.

The FDIC argues that because Plaintiffs have not even alleged that they have complied with FIRREA by filing an administrative claim with the FDIC, they have failed to allege facts supporting this Court's jurisdiction. FDIC MTD at 8.

Plaintiffs respond that because they challenge "the direct actions of WAMU in purportedly attempting to foreclose on their mortgage, and not the actions of FDIC as receiver," FIRREA does not apply. Opp'n at 6. Plaintiffs also argue that FIRREA does not bar claims for injunctive relief brought against the FDIC. Id.

The Court agrees with the FDIC, and finds no support in the law for Plaintiffs' arguments. Plaintiffs' only basis for naming the FDIC as a Defendant is the fact that it is the receiver of WaMu, a failed bank that was party to Plaintiffs' loan agreement. As such, Plaintiffs' claims relate "to any act or omission" of an institution subject to FDIC receivership, triggering FIRREA's jurisdictional bar. There is no support in the law for Plaintiffs' contention FIRREA does not act as a jurisdictional bar to injunctive relief.

In so holding, the Court joins several other district courts that have faced this issue. E.g., Waltner v. Fed. Deposit Ins. Corp., No 10-662RAJ, 2011 WL 1675287, at *2 (W.D. Wash. May 3, 2011) (applying FIRREA's administrative exhaustion requirement to plaintiff's claims arising from foreclosure on their property);Benson v. JPMorgan Chase Bank, N.A., No. C-09-5272, 2011 WL 4010116, at *3 (N.D. Cal. Oct. 13, 2010) (same); Citrus El Dorado LLC v. Stearns Bank, No. 09-1462, 2011 WL 86960, at *1-2 (C.D. Cal. Jan. 5, 2011) (same).

For these reasons, the Court DISMISSES Plaintiffs' claims against Defendant FDIC. It dismisses the action WITHOUT PREJUDICE because it is possible, albeit unlikely, that Plaintiffs actually exhausted the FDIC's administrative remedies and merely failed to so plead. Plaintiffs therefore are granted thirty (30) days to file an amended complaint in which they make such a pleading. Alternatively, Plaintiffs may seek to stay this action until administrative remedies have been exhausted. If Plaintiffs do not amend their complaint or seek a stay within the next thirty days, the Court will dismiss all claims against FDIC WITH PREJUDICE.

B. Chase and CRC's MTD

In their MTD, Chase and CRC make a number of arguments in favor of dismissal of all sixteen claims brought against them. Among other assertions, they argue that they cannot be held liable for claims arising out of the loan origination in 2007; that Chase and CRC cannot be liable for WaMu's actions "because the FDIC bears any liability for such claims"; that the origination claims are barred by the statute of limitations; that Plaintiffs' wrongful foreclosure arguments are flawed; and that Plaintiffs' claims for injunctive relief, quiet title, and unjust enrichment "are remedies, not causes of action." Chase MTD at 4-8.

Plaintiffs did not file an opposition to Chase and CRC's MTD. As such, the Court GRANTS Chase and CRC's unopposed MTD and dismisses all sixteeen claims against Chase and CRC WITH PREJUDICE.

The Court's dismissal of all claims against FDIC, CRC, and Chase leaves Streamline as the sole Defendant. Because the only basis for removal of this action was 12 U.S.C. § 1819(b)(2)(B) — a removal statute that can only be exercised by the FDIC — there is no basis for this Court's subject matter jurisdiction over Plaintiffs' remaining claims against Streamline. Furthermore, it does not appear that Streamline was served with the Notice of Removal or participated in this action. Accordingly, if Plaintiffs fail to amend their Complaint to plead exhaustion of the FDIC administrative remedies within the timeline provided above, the Court will REMAND the action to state court for the adjudication of the remaining claims against Streamline.


For the foregoing reasons, the Court GRANTS the Motion to Dismiss filed by Defendant Federal Deposit Insurance Corporation and the Motion to Dismiss filed by JPMorgan Chase Bank, N.A. and the California Reconveyance Company. Plaintiffs Luis and Rosario Herrera's claims against Defendants Chase and CRC are DISMISSED WITH PREJUDICE. Plaintiffs' claims against the FDIC are DISMISSED WITHOUT PREJUDICE.

If Plaintiffs fail to file within thirty (30) days of this Order either an amended complaint in which they plead exhaustion of FDIC's administrative remedies or a motion to stay this action pending exhaustion of said administrative remedies, the Court will dismiss claims against FDIC WITH PREJUDICE and REMAND the remaining causes of action brought against Defendant Streamline Funding, Inc. to California Superior Court for the County of San Mateo.


Summaries of

Herrera v. Streamline Funding, Inc.

United States District Court, N.D. California
May 26, 2011
Case No. C-11-709 SC (N.D. Cal. May. 26, 2011)

finding "no support in the law" for the same arguments raised by Plaintiffs here

Summary of this case from Dela Cruz v. Washington Mut. Bank
Case details for

Herrera v. Streamline Funding, Inc.

Case Details


Court:United States District Court, N.D. California

Date published: May 26, 2011


Case No. C-11-709 SC (N.D. Cal. May. 26, 2011)

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