Rich Rydstrom Attorney OPPO DISMISS ROOP June 2012 Federal

Case 5:12-cv-00640-CJC-FFM Document 15
Filed 05/21/12 Page 1 of 35 Page ID #:697
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RICHARD IVAR RYDSTROM, ESQ. CSBN: 147470 rlawnow@gmail.com RYDSTROM LAW OFFICE 4695 MacArthur Court 11th Floor Newport Beach, Ca 92660 949.678.2218 (Tel) | 949.606.9716 (Fax) www.RydstromLaw.Com Attorney for Plaintiff OPHELIA GEORGIEV ROOP UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA OPHELIA GEORGIEV ROOP Plaintiff, vs. CITIMORTGAGE INC., KAISER FEDERAL BANK; CITI RESIDENTIAL LENDING INC.; CR TITLE SERVICE, INC. Does 1 to 100, Inclusive Defendants, Case NO.: EDCV12-00640 CJC (FFMx) [San Bernardino Superior Court Case No. CIVDS 1101103] PLAINTIFFS OPPOSITION TO COURTS OSC IN RE DISMISSAL Hearing Date: _none ____________ Time: ____________ Courtroom: Hon. Cormac J. Carney First Amended Complaint Served: Mar. 28, 2012 Case Removed: April 26, 2012 TO THE COURT AND ALL PARTIES AND THEIR COUNSEL: ///
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PLEASE TAKE NOTICE that Plaintiff OPHELIA GEORGIEV ROOP (ROOP) files PLAINTIFFS OPPOSITION TO OSC IN RE DISMISSAL. Posture & State Court Rulings on the Case: As a preliminary matter, Plaintiff requests that this Court rule on Plaintiffs remand motion as Defendants improperly removed this action without federal question jurisdiction and failed to remove this action within 30 days after service of the original complaint raising HAMP standards (28 U.S.C. 1446(b)(1)) (see Plaintiffs Notice of Motion and Motion to Remand). Immediately prior to Defendants removal, the Superior Court overruled Defendants demurrer on key causes of action against key Defendants. The causes of action of wrongful foreclosure (as to CitiMortgage, CitiResidential, CR Title, and Kaiser Federal Bank), unfair business practices (as to CitiMortgage and Kaiser Federal Bank), and promissory estoppel (as to CitiMortgage), survived Defendants demurrer in Superior Court. The court also granted leave to amend to restate other causes of action. Plaintiff requests this court to take judicial notice when it must and when it may (FRCP 201; Ca. Ev. C. 451-456; 452(e)) of the state Superior Court ruling of Judge John M. Pacheco. (see Minute Order of 02/23/2012; Notice of Removal at Exhibit 2O at Exhibit 2). Plaintiffs timely filed a more expansive amended
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complaint to meet the courts request for more particular and detailed facts. Plaintiffs amended complaint complies with the courts order, and also satisfies the heightened pleading standards under Federal Rules of Civil Procedure 9(b), which require her to state with particularity the circumstances constituting fraud or mistake. Fed. R. Civ. P. 9(b). Plaintiffs allegations are sufficient to enable defendants to prepare an adequate answer[.] Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1400 (9th Cir, 1986); see Bosse v. Crowell Collier & MacMillan, 565F.2d 602, 611 (9th Cir. 1977); Walling v. Beverly Enter., 476 F.2 393, 397 (9th Cir. 1973). Dated: May 21, 2012
______________________________________ By: Richard Ivar Rydstrom, Esq.
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TABLE OF CONTENTS I. THE NATURE & IMPORTANCE OF THE CASE...1 II. ARGUMENT..3 a. Standard of Review on a Motion to Dismiss3 b. Plaintiff States a Claim for Breach of a Trial Period Plan Agreement and Verbal Agreements, and Breach of Covenant of Good Faith ...4 i. TPP is an Enforceable Contract4 c. In this Case, the Superior Court Has Ruled that Plaintiff Has Stated Causes of Action for Promissory Estoppel, Unfair Deceptive Business Practices, and Wrongful Foreclosure .10 ii. Promissory Estoppel Alleges Promises and Detrimental Reliance..10 iii. Unfair Deceptive Business Practices.12 iv. Wrongful Foreclosure.14 d. Plaintiff States a Claim for Fraud (False Promises Without the Intent to Perform) and Negligent Misrepresentation.15 e. Plaintiff States a Claim for Violations of the Rosenthal Act (CC 1788 et seq.).18 f. Plaintiff States a Claim for Negligence..19 g. Plaintiff States a Claim for Quiet Title...21 h. Plaintiff States a Claim for Emotional Distress..22 III. CONCLUSION.24
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TABLE OF AUTHORITIES United States Supreme Court Cases Ashcroft v. Iqbal, 129 S. Ct. 1937 (U.S. 2009)3 Erickson v. Pardus, 551 U.S. 89 (U.S. 2007)..3 Lung v. Payne, 476 U.S. 926 (U.S. 1986)..11 United States Court of Appeals Cases ARCO Environmental Remediation, L.L.C. v. Department of Health & Environmental Quality of Montana, 213 F.3d 1108 (9th Cir.2000)16 Bosse v. Crowell Collier & MacMillan, 565F.2d 602(9th Cir. 1977)...iii Epstein v. Washington Energy Co., 83 F.3d 1136 (9th Cir. 1996)4 Lee v. City of L.A., 250 F.3d 668 (9th Cir. 2001)4 Porter v. Jones, 319 F.3d 483, 494 (9th Cir. 2003)3 Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393 (9th Cir, 1986)..iii
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Walling v. Beverly Enter., 476 F.2 393 (9th Cir. 1973)...iii Wigod v. Wells Fargo Bank, N.A. No. 11-1423; 2012 WL 727646 (7th Circuit, Ill Mar. 7 2012)1, 2, 8, 12, 13, 18, 19, 20
United States District Court Cases Accord Walters v. Fidelity Mortg. Of Cal., 730 F. Supp. 2d 1185 (E.D. Cal. 2010).18 Allen v. CitiMortgage, Inc., No. CCB-10-2740, 2011 WL 3425665 (D. Md. Aug. 4, 2011)1, 5, 9, 10, 12, 23 Ansanelli v. J.P. Morgan Chase Bank, N.A. 2011 WL 1134451 (N.D. Cal. Mar. 28, 2011)1, 8, 9 ,13, 20 Bosque v. Wells Fargo Bank NA, 762 F. Supp. 2d 342 (D. Mass. 2011)1, 8, 11, 13 Distor v. U.S. Bank HA 2009 WL 3429700 (N.D. Cal. 2009)21 Durmic v. JP Morgan Chase Bank, N.A. No. 10-cv-10380-RGS, 2010 WL 4825632 (D. Mass. Nov. 24, 2010)8, 11 Herrera v. LCS Financial Services Corp., 2009 WL 5062192, (N.D.Cal., Dec.22, 2009).18 InQuote Corp v. Cole, No. 99-cv-6232, 2000 WL 1222211 (N.D. Ill. Aug. 24, 2000)18
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In re Bank of America Home Affordable Modification Program (HAMP) Contract Litigation, No.10-md-02193-RWZ, 2011 WL 2637222 (D. Mass. July 6, 2011)1, 10, 12, 13, 18, 19 Lucia v Wells Fargo Bank 2011 WL 3134422 (N.D. Cal. 2010)..9 Ohlendorf v. Am. Home Mortg. Servicing, No. Civ. S-09-2081 LKK/EFB, 2010 U.S. Dist. LEXIS 31098 (E.D. Cal. Mar. 30, 2010).19 Ossman v. CitiMortgage 2012 WL 315485 (C.D. Cal., Jan. 31, 2012)..8 Turbeville v. J.P. Morgan Chase Bank 2011 WL 7163111(C.D. Cal., April 4, 2011)...1, 10, 11, 12 State Supreme Court Cases Asmus v. Pac. Bell 23 Cal.4th 1 (2000)..8 Gould v. Wise, 97 Cal. 53221 Promis v. Duke, 208 Cal. 420 21 Raedeke v. Gibraltar Sav. and Loan Assn, 10 Cal.3d 665 (1974).8, 12 State Court of Appeals Cases
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Allied Grape Growers v. Bronco Wine Co., 203 Cal. App. 3d 432 (1988)..13, 14 April Enters., Inc. v. KTTV, 147 Cal. App. 3d 805 (1983).10 Arce v. Kaiser Found. Health Plan, Inc., 181 Cal.App.4th 47113 Bowden v. Spiegel, Inc. (1950) 96 Cal.App.2d 793.23 Bundren v. Superior Court (1983) 145 Cal.App.3d 784..23 Cantu v. Resolution Trust Corp. (1992) 4 Cal. App. 4th 85723 Dimock v Emerald Props (2000) 81 CA 3th 86821 First Commercial Mortg. Co. v. Reece, 89 Cal. App. 4th 731 (2001)4 House v. Lala 214 Cal.App.2d 2388 Kruse v. Bank of America (1988) 202 Cal.App.3d 38.23 Laks v. Coast Federal Savings & Loan Assn. 60 Cal. App. 3d 885 (1976)..10 Malkoskie v. Option One Mge Corp 188 Cal. App. 4th 968 ..24
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People v. Dollar Rent-A-Car, 211 Cal. App. 3d 119 (1989)14 Saunders v. Superior Court, 27 Cal. App. 4th 832 (1994)..14 Slaughter v. Legal Process, 162 Cal.App.3d 123623 State Farm Fire & Cas. Co. v. Superior Court, 45 Cal. App. 4th 1093 (1996).12, 16 Strathvale Holdings v E.B.H. 126 Cal. App.4th 124121 Sutherland v. Barclays American/Mortgage Corp., 53 Cal. App. 4th 299..9 Tarmann v. State Farm Mutual Auto Ins. Co., 2 Cal. App. 4th 153 (1991)16 U.S. Ecology Inc. v. State of Cal. 129 Cal. App. 4th 887 (2005).12 Zellerino v Brown, 235 Cal. App.3d 1097 21 Young v. Bank of America, 141 Cal. App. 3d 10824 Other Cases Friedman & Fuller, P.C. v. Funkhouser, 107 Md.App. 91 (Md.Ct.Spec.App.1995)5
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Statutes & Treaties & Other Authorities 15 U.S.C. 1692 a(6)19 CA Business & Professions Code 17200, 17203, 17500.2, 3, 14 CA Civil Code 1709-1713..2 CA Civil Code 2923.5 et seq14, 15, 17 CA Civil Code 2934a(b)..15 CA Civil Code 2924 et seq2, 15 CA Code of Civil Procedure 761.020a-e.....21 Rules Fed. R. Civ. P. 12b(6)..3 Fed. R. Civ. P.8(a)3 Making Home Affordable HAMP Chapter 1, 3.0, 3.35, 6, 8, 17, 19
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MEMORANDUM OF POINTS & AUTHORITIES I. THE NATURE & IMPORTANCE OF THE CASE: The case at bar deals with the so-called third level of arguments concerning the Home Affordable Modification Program (HAMP) modification cases, following the Wigod 2012 and In Re Bank of American re HAMP decisions (See Wigod v. Wells Fargo Bank, N.A., No. 11-1423; 2012 WL 727646 at *19-29 (7th Circuit, Ill Mar. 7 2012) (Wigod 2012); In re Bank of America Home Affordable Modification Program (HAMP) Contract Litigation No.10-md-02193-RWZ, 2011 WL 2637222 at *1, 2, 3, 4 (D. Mass. July 6, 2011) (In Re Bank of American re HAMP); Bosque v. Wells Fargo Bank NA 762 F. Supp. 2d 342, 351 (D. Mass. 2011); Ansanelli v. J.P. Morgan Chase Bank, N.A. 2011 WL 1134451 (N.D. Cal. Mar. 28, 2011); Turbeville v. J.P. Morgan Chase Bank 2011 WL 7163111(C.D. Cal., April 4, 2011); Allen v. CitiMortgage, Inc. No. CCB-10-2740, 2011 WL 3425665, at *4 (D. Md. Aug. 4, 2011)). The case at bar does not allege a federal private right of action or preemption issues which have already been decided by the courts. It is not a case alleging standing as a third party beneficiary to the Servicing Participation Agreement (SPA) with the U.S. Treasury. The HAMP law did not create a federal private right of action. The gravamen of Plaintiffs
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causes of action in her First Amended Complaint (FAC) are strictly based in California statutory law [California Civil Code 1709-1713 (fraud, deceit, negligent misrepresentation); B&P 17200, 17203, 17500 (unfair business practices); California Civil Code 2924 et. seq. (California foreclosure law)]. It is precisely because HAMP does not have a federal private right of action that Plaintiff may use HAMP standards as an ingredient to support its state causes of action. The federal courts have held that: Where there is no private right of action under a federal statute, a violation of the federal HAMP standard as an element of a state tort cause does not prevent state law from providing a cause of action based in whole or in part on violations of the federal (HAMP) law. (emphasis added) (Wigod v. Wells Fargo Bank, N.A., No. 11-1423; 2012 WL 727646 at *19-29 (7th Circuit, Ill Mar. 7 2012) (Wigod 2012). In fact, the United States Court of Appeals (in Wigod 2012 at *19) held: We reject this end-run theory, along with Wells Fargos formal preemption arguments. Federal law does not displace Wigods statelaw claims. (Emphasis Added) This dispute relates to Home Affordable Modification Trial Period Plans or TPPs. TPPs were designed to provide a trial period of reduced mortgage payments as part of the process for qualifying for a permanent mortgage modification under the federal HAMP. Plaintiff alleges that she complied with all
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terms of the TPP and was therefore entitled to a permanent modification, which Defendants failed to honor. The parties invoked HAMP standards by promises and as part of the bargain by contract; not as a federal private right of action or third party beneficiary. II. ARGUMENT a. Standard of Review on a Motion to Dismiss To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), a complaint generally must satisfy only the minimal notice pleading requirements of Rule 8(a)(2). Porter v. Jones, 319 F.3d 483, 494 (9th Cir. 2003). Specific facts are not necessary; the statement need only give the defendant fair notice of what theclaim is and the grounds upon which it rests. Erickson v. Pardus, 551 U.S. 89, 93 (2007). To overcome a 12(b)(6) motion, 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). When considering a 12(b)(6) motion, a court is generally limited to considering materials within the pleadings and must construe [a]ll factual allegations set forth in the complaintas true and in the light most favorable to [the plaintiff]. See
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Lee v. City of L.A., 250 F.3d 668, 688 (9th Cir. 2001)(citing Epstein v. Washington Energy Co., 83 F.3d 1136, 1140 (9th Cir. 1996)). b. Plaintiff States a Claim for Breach of a Trial Period Plan Agreement and Verbal Agreements, and Breach of Covenant of Good Faith i. TPP is an Enforceable Contract "In order to state a claim for breach of contract, Plaintiff must allege "the existence of the contract, performance by the plaintiff or excuse for nonperformance, breach by the defendant and damages." First Commercial Mortg. Co. v. Reece, 89 Cal. App. 4th 731, 745 (2001). Plaintiff alleges the existence of two verbal trial period plan agreements as oral executed agreements (Cause of Action #8) and a written agreement (Cause of Action #7), breach of those agreements and breach of the implied covenants of good faith by Defendants (Cause of Action #14) (FAC pg. 52; FAC at pg. 56), which caused Plaintiff damages. Defendant, CitiMortgage, by and through Patti Booker, offered a verbal trial period plan agreement (TPP) to Plaintiff for a HAMP modification (FAC pg. 56, Para. 193). The terms of the agreement required Plaintiff to make three (3) timely monthly payments of $2,226.00 beginning with the initial payment due on May 10, 2009 and ending on July 10, 2009. (FAC pg. 56, Para. 193). The terms of the agreement also consisted of Defendants promise to grant Plaintiff a
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permanent modification if [Plaintiffs] [financial] representations continued to be true and accurate in all material respects upon Plaintiffs successful completion of the TPP. (FAC pg. 56, Para. 193). Borrowers are not required to sign or return the TPP Notice. (Emphasis Added) [Chapter I: MHA Handbook v3.3 88]. The parties expressly and specifically agreed that their oral contract will be performed within one year; thus, the Statute of Frauds will not bar Plaintiffs claims. Allen; Friedman & Fuller, P.C. v. Funkhouser, 107 Md.App. 91, 666 A.2d 1298, 1304(Md.Ct.Spec.App.1995). Plaintiff accepted Defendants offer by fully
performing all terms under the agreement (FAC at pgs. 56-60). Pursuant to HAMP standards: The servicers receipt of the first payment due under the TPP Notice on or before the last day of the month in which the first payment is due (TPP Offer Deadline) is evidence of the borrowers acceptance of the TPP Notice and its terms and conditions (Emphasis Added) [Chapter I: MHA MHA Handbook v3.3 89] Plaintiff alleges that she fully performed by making all three required payments of $2,226.00 timely - ($2,226.00 in May 2009 (check #1650); $2,226.00 in June 2009 (check #1654); $2,226.00 in July 2009 (check #1657)). (FAC at pg. 57, Para. 195). Plaintiff also alleges that her representations remained true and correct, and that she provided Defendants all required documentation. (FAC at pg.
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56-57).
However, Defendants breached promises to grant her a permanent
modification upon her successful completion of the trial period plan . Plaintiff alleges in pertinent part that Defendants failed to honor and breached its promises (FAC at pg. 57, Para. 196). Rather than granting Plaintiff a
permanent modification as promised, Plaintiff alleges that on or about July 16, 2009, 2:25pm, Ted (CitiMortgage representative) granted Plaintiff a second Trial Period Plan (TPP). (FAC pg. 52, Para.174: Lines 23-26). HAMP standards require the servicer to convert the TPP into a permanent modification: Borrowers who make all trial period payments timely and who satisfy all other trial period requirements will be offered a permanent modification (emphasis added) [Chapter I: MHA Handbook v3.3 88]. On or about July 16, 2009, 2:25pm, Defendants, by and through Ted, entered into a second verbal Trial Period Plan (TPP) agreement with Plaintiff promising to offer Plaintiff a permanent loan modification if Plaintiff made another three (3) payents in a reduced amount of $1338.81 with the initial payment due on August 16, 2009, and ending on October 16, 2009. (FAC pg. 57 at Para. 197). Plaintiff alleges that she again fully performed her promise to make all three (3) timely payments (FAC pg. 57 at Para. 199). On or about September 2009, after speaking with Maurice at CitiMortgage at 877-838-3787, Plaintiff was promised
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over the telephone that the agreement for the permanent loan modification has been sent. (FAC at pg. 53, Para 178). Plaintiff alleges that: Plaintiff did receive a written contract for her signature for what Plaintiff believed to be the promised permanent modification agreement. (FAC at pg. 53, Para. 173). Plaintiff alleges that: Believing the document to be the promised permanent modification agreement, Plaintiff signed and returned to Citi the written contract and all other documents requested in the package on or about October 5, 2010 by UPS (tracking # 1Z3W529E8740262409). Plaintiff later learned, however, that instead of
sending Plaintiff the promised permanent modification, Defendants mailed Plaintiff, and Plaintiff signed a third Trial Period Plan on or about September 10, 2009. (FAC at pg. 58, Para. 201). Plaintiff also mailed a seventh check for the agreed amount of $1338.81 (check #1667) for her November 2009 payment, (FAC pg. 53, Para. 179), requiring Defendants to grant a permanent loan modification and forebear from foreclosing on Plaintiffs home (FAC pg. 54, Para. 185). Defendants breached the contract when they failed to honor the terms of the TPP, grant a permanent modification and initiated the foreclosure process on Plaintiffs home (FAC pg. 54, Para. 183, Para. 187, Para. 188). Defendants reason
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for failing to fulfill their end of the contract was that its investors (Kaiser) did not participate in MHA (HAMP). (FAC at pgs. 7-8). However, Defendants had a duty under HAMP to review all servicing agreements to determine investor participation in HAMP within 90 days of executing the SPA (FAC pg. 54, Paras. 183, 184; FAC pgs. 33-34, Paras. 101, 108). Plaintiff alleges that Defendants caused damages to her (FAC pg. 55, Paras. 189, 204, 205) by breaching the terms of the TPP, and denying her a permanent modification when Defendants knew or should have known prior to placing Plaintiff into two trial period plans that its investor, Kaiser, was not participating in HAMP. Moreover, [t]he requirements of the TPP all constitute new legal detriment. (Durmic v. JP Morgan Chase Bank, N.A. No. 10-cv-10380-RGS, 2010 WL 4825632 at *12 (D. Mass. Nov. 24, 2010); Id. at 24; See Ansanelli, at 4 (N.D. Cal. Mar. 28, 2011); House v. Lala 214 Cal.App.2d 238, 243; Raedeke v. Gibraltar Sav. and Loan Assn, 10 Cal.3d 665, 673, 111 Cal.Rptr. 693, 517 P.2d 1157 (1974); Asmus v. Pac. Bell 23 Cal.4th 1, 31-32; Bosque at *6. The courts have held that there is sufficient consideration to enforce trial period forbearance promises and agreements Wigod 2012, at *8; Ossman v. CitiMortgage (2012 WL 315485)). By promising to comply with the terms of the TPP the Plaintiffs exposed themselves to greater liability for interest
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and late charges (and increased principal balance, attorney fees and costs, and lost default options) should the permanent modification not be issued. (Lucia v Wells Fargo Bank (2011) WL 3134422, at 5 (N.D. Cal. 2010); (Allen, at *10). As the complaint includes, sufficient factual allegations that there was valid consideration for the agreement, the complaint states a claim for breach of contract as to the trial period plan theory of liability. Defendants motion to dismiss this theory is Denied. Ansanelli at section C. Breach of Contract and Covenant of Good Faith and Fair Dealing (N.D. Cal. Mar. 28, 2011). Implied Covenant of Good Faith: Plaintiff alleges a cause for breach of implied covenants of good faith and fair dealing (FAC pg. 68-69). In every contract there is an implied covenant of good faith and fair dealing by each party not to do anything which will deprive the other parties of the benefits of the contract, and a breach of this covenant by failure to deal fairly or in good faith gives rise to an action for damages. Sutherland v. Barclays American/Mortgage Corp., 53 Cal. App. 4th 299, 314. The covenant imposes on each party to the contract the duty to refrain from doing anything which would render performance of the contract impossible by any act of his own, and also the duty to do everything that the contract presupposes that each party will do to accomplish its purpose.
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April Enters., Inc. v. KTTV, 147 Cal. App. 3d 805, 816, (1983). Plaintiffs allegations are sufficiently plausible to survive a motion for dismiss. Turbeville at *4, 5; Allen at B. Plaintiff alleged sufficient consideration for breach of a TPP contract. In re Bank of America HAMP at B. TPP Plaintiffs at 1, 3. c. In this Case, the Superior Court Has Ruled that Plaintiff Has Stated Causes of Action for Promissory Estoppel, Unfair Deceptive Business Practices, and Wrongful Foreclosure i. Promissory Estoppel Alleges Promises and Detrimental Reliance Plaintiff alleges a cause of action for promissory estoppel (Cause of Action #11; FAC pg. 61). 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. Laks v. Coast Federal Savings & Loan Assn. (1976) 60 Cal. App. 3d 885, 890. Plaintiff alleges that if she paid the trial period payments, she would get a permanent modification. (FAC at pg. 5, Para. 11: lines 10-12). Plaintiff alleges that she relied upon these statements and repeatedly sending documentation as requested. (FAC at pg. 5, Para. 11: lines 13-16). Plaintiff alleges at FAC pg. 6, Para. 16: Ted told Plaintiff that she did qualify for a second Trial Period Plan in a reduced amount of $1338.81 she would receive the written agreement for the permanent
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Making Home Affordable (HAMP) loan modification contract for her signature in October 2009. Plaintiff alleges at FAC pg. 6 at Para. 17: Plaintiff again fully performed At FAC pg. 6-7, Para. 19 Plaintiff alleges: Plaintiff did receive a written contract for her signature for what Plaintiff believed to be the promised permanent modification agreement. Plaintiff signed and returned to Citi the
written contract and all other documents Plaintiff also mailed a seventh check (FAC at pg. 5-8, Para. 11-29; FAC at pg. 12 Para. 42; FAC at pgs. 28-36 at Para. 82 Scheme 2: False Promises and HAMP Modification Fraud). An essential element of any estoppel is detrimental reliance on the adverse partys misrepresentations. Lung v. Payne, 476 U.S. 926 cited by Turbeville at *3
Promissory Estoppel; Bosque at *4 citing Durmic at *5, 12. Plaintiff alleges Perversely, Plaintiffs acceptance of the assistance of Citi and Kaiser left her in a far worse financial position, facing massage arrearages, undisclosed fees, damaged credit, depleted cash, and fewer options than before she was misled by such false promises of a permanent loan modification. (FAC at pg. 16, Para. 50; FAC, pg. 17, Para. 52: lines 5-10). Plaintiffs reliance and detriment is sufficient
consideration to form binding agreements requiring Defendants to honor its promises. Turbeville. As a result of Defendants promises, Plaintiffs reliance
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thereon, she suffered detriment. U.S. Ecology Inc. v. State of Cal. 129 Cal. App. 4th 887, 901 (2005); Allen at section *D (Count III) (p.5); Turbeville at 5; Wigod 2012 at section B Promissory Estoppel p.28-29 (A lost opportunity can constitute a sufficient detriment to support a promissory estoppel claim (Wood v. Mid-Valley 942 F.2d 425, 428). Finally, California law recognizes that a detriment
constituting consideration includes expenditure of time and energy. Raedeke, 10 Cal.3d at 673. Plaintiffs allegations are sufficient to maintain the promissory estoppel cause. Wigod 2012; In re Bank of America HAMP at 2. Promissory Estoppel (D. Mass. July 6, 2011). ii. Unfair Deceptive Business Practices Failure to honor plaintiffs eligibility for a HAMP modification and knowingly concealing the lack of the investors participation in HAMP, are sufficient predicates for finding an unfair or deceptive business practice in California. Statutory causes of actions require an underlying tort, public policy or statute (HAMP) violation. State Farm Fire & Cas. Co. v. Superior Court, 45 Cal. App. 4th 1093, 1105, (1996). Plaintiffs FAC alleges statutory causes of actions, including Rosenthal (FAC at pg. 69-72), HAMP violations, etc. and underlying torts of fraud, breach of contract and violations of public policy. Plaintiffs allege
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actual fraud on the part of Defendants (FAC pgs. 24-37). Violations of 17200 need not be both fraudulent and unfair; the test under 17200 is that a practice merely be unfair and that the public is likely to be deceived. Allied Grape Growers v. Bronco Wine Co., 203 Cal. App. 3d 432, 451 (1988). [A] systematic breach of certain types of contractcan constitute an unfair business practice under UCL. (Arce v. Kaiser Found. Health Plan, Inc., 181 Cal.App.4th 471, 490) Plaintiff alleges that Defendants common plan and scheme intended to defraud Plaintiff out of her permanent HAMP modification (FAC pgs. 45-47, Paras. 146-148, etc.): She also alleges that Wells Fargo dishonestly and ineffectually implemented HAMP, and that this conduct constituted unfair, immoral, unscrupulous business practices. (Wigod 2012 at section F p47-50 citing In re Bank of America Home Affordable Modification Program (HAMP) Contract Litigation, No.10-md-02193-RWZ, 2011 WL 2637222 at *5-6 (D. Mass. July 6, 2011) (multi-district litigation) (denying motion to dismiss claims under fourteen states, consumer protection acts Defendants conduct caused injury and damages. In re Bank of America HAMP at section 4 citing Bosque; Ansanelli at Section G p.6-7. Plaintiffs Complaint alleges an underlying tort of fraud, breach of contract and violations of public policy (FAC pgs. 24-37; FAC pgs. 52-60). In 1992 the Legislature broadened 17200 to cover a single business act as well as a business practice. Unlawful conduct may include any business act forbidden by civil, criminal, federal, state, municipal,
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statutory, regulatory or court-made law. Saunders v. Superior Court, 27 Cal. App. 4th 832, 839 (1994). Violations of 17200 need not be both fraudulent and unfair; the test under 17200 is that a practice merely be unfair. Allied Grape Growers at, 451; People v. Dollar Rent-A-Car, 211 Cal. App. 3d 119 (1989). iii. Wrongful Foreclosure Plaintiff alleges a cause of wrongful foreclosure (FAC pgs. 37-45) and that Defendants acted in concert to wrongfully obtain Plaintiffs title and possession of her home. Plaintiff alleges various specific violations of California foreclosure law including, but not limited to allegations at FAC pgs. 20-28, Para. 71. For example, the dates on Notice of Trustee Sale (NOTS) are a physical impossibility. The NOTS was recorded on 1/5/11 but it wasnt signed until 1/10/11 by CR Title Service, the new trustee claiming rights via a failed and void Substitution of Trustee (FAC at pg. 26, Para. 74). On this ground alone, the notice of trustee sale (NOTS) is defective and void on its face. Moreover, Defendant CR Title Services knowingly violated CA Civil Code 2923.5 et seq. when Defendant CR Title Services recorded a false Notice of Default Declaration, signed by robo-signer Pam January (FAC at pg. 21, Para. 56). The Notice of Default recorded on 6/8/10 by Defendant CR Title Services is void as it contains false statements in violation of
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B&P 17500 for making and disseminating false statements. In the 2923.5 Declaration signed by Pam January on 12/21/09, the NOD represents its due diligence under CC 2923 stating that Pam January contacted Plaintiff on 10/5/09 and informed her that she was facing foreclosure and had the right to a follow-up meeting in 14 days. Plaintiff did not speak to Pam January as this event did not occur. The declaration is false (FAC at pg. 21, Para. 56). Defendants failed to comply with required notices, mailings, postings and publications pursuant to Plaintiffs mortgage note agreement and deed of trust, and California statutory foreclosure requirements, including but not limited to California Civil Code (CC) Sections 2924 et seq., 2934a(b), CC 2923 et seq., as prerequisites to schedule, sell or perfect a non-judicial foreclosure sale on the subject home. Plaintiff also alleges California foreclosure law violations at FAC pg. 74 at Para. 266 and at FAC pg. 24-28, Paras. 71-81. d. Plaintiff States a Claim for Fraud (False Promises Without the Intent to Perform) and Negligent Misrepresentation Plaintiff alleges fraud and promises without the intent to perform. Plaintiff alleged detailed allegations of Defendants fraudlent conduct with particularity (FAC pgs. 24-37, and at Para. 82 Scheme 2: False Promises and HAMP Modification Fraud, Para. 71 Scheme 1: CA Foreclosure Fraud).
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Further, Plaintiff alleges specific names of the persons who made the misrepresentations, their authority to speak for the corporation, as employees or supervisors, to whom they spoke to, what they said or wrote, and when it was said or written. Tarmann v. State Farm Mutual Auto Ins. Co., (1991) 2 Cal. App. 4th 153, 157. Plaintiff has alleged in pertient part as follows: Citi and Kaiser entered into negotiations with Plaintiff for a workout of her loan and made a series of representations to Plaintiff during the workout phase, including statements that if she paid the trial period payments, she would get a permanent modification. She was later contacted and asked to pay another three payments, for which she fully complied. Plaintiff relied upon these statements and complied with them by making all such payments and repeatedly sending documentation as requested. Citi and Kaiser have breached its duty of good faith and fair dealing by misleading Plaintiff into believing that a workout could be achieved and that if she complied with their trial period promises, she would obtain a permanent modification. (FAC at pg. 28, Para. 82) Plaintiff contends that Defendants CitiMortgage, CitiResdiential and Kaiser Federal Banks conduct was false and materially deceptive, and that unfair business trade practices were used to conceal the true nature of the transaction. To wit, at FAC at pg. 28, Paras. 83, 84: a. The alleged servicer CitiMortgage, by and through Patti Booker and Ted, represented and falsely promised Plaintiff that upon her successful completion of two verbal trial period plans Plaintiff would be granted a permanent loan modification agreement. b. The alleged servicer CitiMortgage, by and through Maurice, falsely represented that the written agreement for a permanent loan
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modification was sent to Plaintiff for her signature to be returned to CitiMortgage. (FAC at pg. 29, Para. 84)
Contrary to all Defendants promises and representations, as stated, the true facts are that: a. DEFENDANTS CitiMortgage, CitiResidential, and Kaiser Federal sent Plaintiff a third Trial Period Plan on or about September 10, 2009, rather than the promised permanent modification; b. Citi and Kaiser failed to provide and concealed from Plaintiff with a timely decision to reject her TPP or permanent modification, since they accepted all three trial period payments and rejected her fourth payment after she fully performed all required of her under the TPP; c. DEFENDANT CitiMortgage and CitiResidential knew that its investor Kaiser Federal Bank did not participate in the HAMP program prior to making the promises of granting the HAMP trial period plan agreements. Defendants were in possession of and had actual (advance) knowledge of the terms and conditions of its Pooling & Servicing Agreements (PSA), Investors Agreements, Making Home Affordable (MHA) Agreement(s) with the United States Treasury, Supplemental Directives of the (mandatory) Regulations of MHA (HAMP) programs, California 2923 Exemption/Application attesting compliance with MHA (HAMP), Trust or REMIC agreements, or other related agreements, policies, or investor positions on MHA (HAMP) (HAFA), etc., which allow for or require conduct contrary to Defendants alleged conduct;d. DEFENDANT CitiMortgage was acting without the required state (CA) license or exemptions during the time of their false promises and wrongful acts; e. DEFEN Federal Bank directly, only to then deny Plaintiff a traditional in-house loan modification through CitiMortgage. Moreover, through Sue Longs conduct, Kaiser Federal Bank cooperated by acting in concert to accomplish a common and unlawful plan. (FAC at pg. 29-30, Para. 87) Plaintiffs reliance on the representation: Plaintiff justifiably relied on Defendants false promises and representations as Plaintiff could have taken the path of efficient breach and defaulted immediately rather than executing the Trial Period Plans and making trial payments (FAC at pg. 32, Para. 91). Contrary to all Defendants promises and representations, as stated, the true facts are that DEFENDANTS sent Plaintiff a third Trial
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Period Plan on or about September 10, 2009, rather than the promised permanent modification. (FAC at pg. 32, Para. 100) Citi knew or should have known that its contractual arrangements with its investors did not allow HAMP participation by Kaiser (FAC at pg. 28, Para. 81) (FAC at pg. 30, Para. 88); Wigod 2012, at *13[26][27]; InQuote Corp v. Cole, No. 99-cv-6232, 2000 WL 1222211, at 3(N.D. Ill. Aug. 24, 2000). Plaintiff alleges proximate injury caused by reliance on defendants representations (FAC at pg. 34, Para. 111). e. Plaintiff States a Claim for Violations of the Rosenthal Act (CC 1788 et seq.) Plaintiff alleges a state Rosenthal cause of action (FAC at pgs. 69-72, Paras. 245-253). Defendants and each of them were attempting to collect money as debt collectors under the RFDCPA (In re Bank of America HAMP at *4). As a number of courts have recognized, the definition of debt collector is broader under the Rosenthal Act than it is under the FDCPA, as the latter excludes creditors collecting on their own debts. See Herrera v. LCS Financial Services Corp., 2009 WL 5062192, at 2 (N.D.Cal., Dec.22, 2009). Thus, a mortgage servicer may be a debt collector under the Rosenthal Act even if it is the original lender, whereas, such an entity would be excluded from the definition of debt collector under the federal act. (emphasis added) See Herrera. 2009 WL 5062192, at 2.8. Further, a mortgage servicer is a debt collector. Accord Walters v. Fidelity
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Mortg. Of Cal., 730 F. Supp. 2d 1185, 1203 (E.D. Cal. 2010) (letters, calls and attemtps to collect mortgage payments are efforts to collect consumer debts under the RFDCPA); Wells Fargo Bank N.A. No.C-10-01667, 2011 WL 30759 *19-*20 (N.D. Cal. Jan. 3, 2011; Ohlendorf v. Am. Home Mortg. Servicing, No. Civ. S-092081 LKK/EFB, 2010 U.S. Dist. LEXIS 31098 (E.D. Cal. Mar. 30, 2010); see also In re Bank of America HAMP. Moreover, if the debt was in default at the time it was assigned, section 1692(a)(6) of the FDCPA indicates conclusively that Defendants are in fact debt collectors under the RFDCPA. Frison v. Accredited Home Lenders, Inc., 2011 U.S. District LEXIS 31276 at 17. Plaintiffs debt was in default beginning on or about January 2009, before it was assigned to U.S. Bank National Association from BNC Mortgage, Inc., a Delaware Corporation on or about April 16, 2010. Moreover, Plaintiffs allege that Defendants had no right to title at the time of their wrongful debt collection activities because Defendants were in violation of HAMP regulations, which prohibit foreclosure during HAMP evaluations and escalations. [Chapter II: HAMP MHA Handbook v3.0 52-53]. f. Plaintiff States a Claim for Negligence In the U.S. Court of Appeals case of Wigod 2012, at *25, the court established that federal HAMP violations impose a duty by law, and a violation of same would constitute negligence (or negligence per se) under state law. Once a
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servicer signs the Servicer Participation Agreement (SPA) with the U.S. Treasury, HAMP makes it mandatory to comply with all HAMP regulations and duties enunciated therein and all federal and state laws (HAMP Handbook 3.3.; 3.2, 3.1, 3.0 and all Supplemental Directives; Helping Families Save Their Homes Act of 2009 (Pub. L. No. 111-12, 123 Stat. 1632)). HAMP was designed to standardize industry practices regarding mortgage loan modifications, and is required to be used unless specifically prohibited by the governing pooling and servicing agreements. Defendants must comply with HAMP and all other federal and state laws (FAC pgs. 13-20; incl. Paras. 45-47, 54). Plaintiff alleges that Defendants acted to breach their standard duty of care owed to Plaintiff as set forth consistent with or by analogy to the case of Wigod 2012 (FAC pg. 14, Para. 46) and Ansanelli. Defendants went beyond its role as a lender and loan servicer to offer an opportunity to Plaintiff for loan modification and to engage with her concerning the trial period plan. This conduct is beyond the domain of a usual money lender and Plaintiffs allegations constitute sufficient active participation to create a duty of care to Plaintiffs to support a claim for negligence. (Ansanelli, at 4 at Section E, Negligence). Plaintiff alleges sufficient facts to demonstrate that Defendants owed and breached a legal
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duty when Defendants misrepresented HAMP standards because Plaintiff was entitled to the permanent modification after the first TPP, and certainly after the second TPP. Defendants went beyond its role as a lender and loan servicer to offer an opportunity to Plaintiff for loan modification when Defendants knew or should have known that its investor Kaiser was not participating in HAMP. g. Plaintiff States a Claim for Quiet Title A void or false-in-fact title or trustee sale (and trustees deed upon sale) that is procured by mistake or fraud are void and a legal nullity that do not require tender. A void or rescinded trustee sale and trust deed upon that sale is a nullity in fact, and cannot be enforced. (Emphasis Added) (Promis v. Duke, 208 Cal. 420 ; Gould v. Wise, 97 Cal. 532; Dimock v Emerald Props (2000) 81 CA 3th 868; Strathvale Holdings v E.B.H. 126 Cal. App.4th 1241). If bank does not hold good title, it cannot enforce it. Zellerino v Brown, 235 Cal. App.3d 1097, 1109. Plaintiffs verified complaint states (1) a description of the property in question, (2) the basis for Plaintiffs title, (3) the adverse claims to plaintiffs title, (4) the date as of which the determination os sought, and (5) a prayer for determination of plaintiffs title against the adverse claims (CCP 761.020 (a-e); Distor v. U.S. Bank HA 2009 WL 3429700, 6 (N.D. Cal. 2009) (FAC pgs. 60-61, Paras. 208-209).
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Plaintiff alleges a Slander of Title cause of action (FAC pgs. 47-52). Plaintiffs allege CA statutory violations which tend to prove that the Notice of Default and Notice of Trustees Sale instruments are wholly void, making Defendants procurement of the foreclosure process wrongful and invalid (FAC pgs48-52, Para. 158 Scheme 1: CA Foreclosure Fraud). Furthermore, the procurement of
foreclosure procedures have been wrongful, as Defendants have engaged in fraud, mistake and false pretenses, which constitutes a false disparagement of Plaintiffs title, harm or impair the marketability, salability, or vendibility of Plaintiffs peropty or title as alleged in Plaintiffs Complaint. (FAC pgs.47-48, Paras. 154157). Defendants continued conduct of making false disparagements of Plaintiffs title within the public records constitutes malice, which is an essential element of slander of title (Gudger v. Manton, (1943) 21 Cal. App. 2d 537, 541), and therefore Plaintiffs properly alleged a claim for slander of title. h. Plaintiff States a Claim for Emotional Distress Plaintiff has alleged facts of extreme and outrageous conduct by Defendants in Scheme 1 and Scheme 2 (FAC pg. 62, Para. 218) . Plaintiff suffered a naturally ensuing emotional distress which is severe and resulted in physical injuries from Defendants conduct, which is continues to date. Plaintiff incurred highly unpleasant emotional reactions, including nightmares, ear bleeding, months of excruciating pain in the right side of my head and face, depression,
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lumps on neck, fainting, preclusion of permission to fly on airplane, fright, shock, anxiety, fear, humiliation, embarrassment, apprehension and terror from Defendants conduct. (FAC at pg. 63 Para. 221) and Plaintiff was under medication for conditions related to Fibre Myalgia and or Atrial Fibrillation (FAC pg. 3 Para. 4). A physical injury is no longer required for recovery for emotional distress (Slaughter v. Legal Process, 162 Cal.App.3d 1236). In the area of collection practices, California recognizes that a creditors qualified privilege to protect its economic interest may be lost if the creditor uses outrageous and unreasonable means in seeking payment. (Bundren v. Superior Court (1983) 145 Cal.App.3d 784, 789-790); see Kruse v. Bank of America (1988) 202 Cal.App.3d 38, 67 [banks have right to pursue their financial interest but not in an impermissible manner]; Bowden v. Spiegel, Inc. (1950) 96 Cal.App.2d 793, 795) Such conduct may rise to the level of outrageous conduct where the creditor knows the debtor is susceptible to emotional distress because of her physical or mental condition. (Bundren at p. 790). The assertion of an economic interest in bad faith is not privileged. (Cantu v. Resolution Trust Corp. (1992) 4 Cal. App. 4th 857, 888). Allen at *10 and fn.14 (D. Md. Aug. 4, 2011) (allowing emotional distress damages). Defendants conduct was outside the normally required conduct within the foreclosure scheme. This conduct is also beyond the conduct of the irregularities in the foreclosure
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proceedings these are questions of facts of knowledge, concealment and fraud for jury determination (Malkoskie v. Option One Mge Corp 188 Cal. App. 4th 968 at 2). Moreover, Plaintiff alleges physical injuries (FAC pgs. 62-64). Thus,
Defendants knew that Plaintiffs have/had a medical condition, and therefore, such conduct has gone beyond all reasonable bounds of decency and may rise to the level of outrageous conduct. (Bundren, at 789-90). Here, Plaintiff has sufficiently plead facts, when taken as true, that fulfill each element of a cause of action for intentional infliction of emotional distress. Young v. Bank of America, 141 Cal. App. 3d 108. III. CONCLUSION:
Plaintiff respectfully requests that this Court deny the OSC In Re Dismissal.
_________________________
By: Richard Ivar Rydstrom, Esq. Attorney for Plaintiff
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PROOF OF SERVICE ATTACHMENT STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed in the County of ORANGE, State of California. I am over the age of 18 and am not a party to the within action. On ____05/21/2012______, I served the document described as PLAINTIFFS OPPOSITION TO COURTS OSC IN RE DISMISSAL on each interested party, as follows: ERIC EVERETT HAWES KELLY ANDREW BEALL State Bar No. 135514 State Bar No. 162456 PEREZ & HAWES LLP DAMIAN P. RICHARD 21300 Victory Boulevard State Bar No. 262805 Suite 820 WOLFE & WYMAN LLP Woodland Hills, CA 91367 2301 Dupont Drive, Suite 300 (818) 884-3991 Phone Irvine, CA 92612-7531 (949-)475-9200 [ ] BY MAIL: as follows: [X] FEDERAL I deposited such envelope in the U.S. Mail at Orange County California, with postage thereon fully prepaid. I am readily familiar with the firms practice for collection and processing of correspondence for mailing with the United States Postal Service. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter sate is more than one day after the date of deposit for mailing in affidavit. [X] BY ELECTRONIC ACCESS: Purusant to Electronic Filing Court Order, I hereby certify that the above document(s) was uploaded to the Roop v. CitiMortgage, Inc., et al. website and will be posted on the website by the close of the next business day and the webmaster will give e-mail notification to all parties. [] BY CERTIFIED MAIL as follows: I am readily familiar with Rydstrom Laws practice for the collection and processing of correspondence for mailing with the United States Postal Service; such envelope will be deposited with the United States Postal Service on the above date in the ordinary course of business at the business address shown above; and such envelope was placed for collection and mailing, by Certified United States Mail, Return Receipt Requested, on the above date according to Rydstrom Laws ordinary business practice. [] BY PERSONAL SERVICE as follows: I caused a copy of such document(s) to be delivered by hand to the offices of the addressee between the hours of 9:00 A.M. and 5:00 P.M. [] BY OVERNIGHT COURIER SERVICE as follows: I caused such envelope to be delivered by overnight courier service to the offices of the addressee. The envelope was deposited in or with a facility regularly maintained by the overnight courier service with delivery fees paid or provided for. [] BY FACSIMILE as follows: I caused such documents to be transmitted to the telephone number of the addressee listed above, by use of facsimile machine telephone number. The facsimile machine used compiled with California Rules of Court, Rule 2004 and no error was reported by the machine. Pursuant to California Rules of Court, Rule 2006(d), a transmission record of the transmission was printed. Executed on date first referenced above, at Orange / Los Angeles County, California. [] STATE: I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. [X] FEDERAL: I declare that I am employed in the offices of a member of the State Bar of this Court at whose direction the service was made. __________________________________________ (Signature)

Rich Rydstrom Attorney OPPO DISMISS ROOP June 2012 Federal

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Rich Rydstrom Attorney OPPO DISMISS ROOP June 2012 Federal

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Case 5:12-cv-00640-CJC-FFM Document 15

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______________________________________ By: Richard Ivar Rydstrom, Esq.

iii PLAINTIFFS OPPOSITION TO COURTS OSC IN RE DISMISSAL EDCV12-00640-CJC (FFMx)

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