ALI POORSINA, Plaintiff,
v.
NEW PENN FINANCIAL, LLC, et al., Defendants.
No. 21-cv-05001-LB
United States District Court, N.D. California, San Francisco Division
December 2, 2021
ORDER DISMISSING CASE
RE: ECF NO. 18
LAUREL BEELER, UNITED STATES MAGISTRATE JUDGE
INTRODUCTION
This is the third lawsuit involving the foreclosure of the plaintiff's house at 1563 28th Avenue in San Francisco. The first was an interpleader case, In re: 1563 28th Avenue, San Francisco, CA 94112, No. 19-cv-01385-LB (N.D. Cal.), where the court distributed funds to creditors from the foreclosure sale, and the second was the plaintiff's lawsuit against two creditors, Poorsina v. Law Offices, No. 21-cv-05488-LB (N.D. Cal.).[1] The plaintiff has represented himself in the three cases. In this case, he sued defendants New Penn Financial and Bank of New York Mellon, alleging that they mishandled his loan application, causing the default and foreclosure.[2] The defendants moved to
dismiss the lawsuit on the ground that the relevant statutes of limitations bar all claims.[3] The court can decide this matter without oral argument, N.D. Cal. Civ. L.R. 7-1(b), and grants the motion.
STATEMENT
On October 25, 2017, just a few weeks after the foreclosure, the plaintiff sued Bank of New York Mellon (and others) in state court, alleging the mishandling of his loan modification during the period between October 1, 2021, and September 2014, and raising claims of wrongful foreclosure, declaratory relief, fraud, and quiet title. The defendants demurred, and before the trial court issued an order, the plaintiff dismissed the complaint without prejudice.[4]
On June 29, 2021, he filed this lawsuit, again challenging how Bank of New York Mellon handled his loan modification and adding New Penn Financial (doing business as Shellpoint) as a defendant. He acquired the now-foreclosed property at 1563 28th Avenue in May 2005, took on a mortgage, and applied in 2014 to Shellpoint for a loan modification. Shellpoint denied the loan modification on December 6, 2016, allegedly because it used faulty software that miscalculated the net present value of the home. The plaintiff defaulted on the loan the next day, and ultimately, creditors foreclosed on it.[5] The claims are breach of contract (predicated on the defendants' alleged failure to give adequate notice of mitigation options such as a loan modification), breach of contract (same, but based on his status as a third-party beneficiary of the defendants' agreement with Fannie Mae and Freddie Mac), negligence, wrongful foreclosure, unjust enrichment, fraudulent concealment, defamation (predicated on statements that the defendants made to credit-reporting agencies), and a violation of California's Unfair Competition Law (UCL).[6]
The defendants moved to dismiss all claims as barred by the relevant statutes of limitations.[7] All parties consented to magistrate-judge jurisdiction under 28 U.S.C. § 636.[8] The court has diversity jurisdiction over the lawsuit: the parties are diverse, and the amount in controversy exceeds $75, 000. 28 U.S.C. § 1332(a).
GOVERNING LAW
1. Rules 12(b)(6) and 9(b)
A complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief” to give the defendant “fair notice” of what the claims are and the grounds upon which they rest. Fed.R.Civ.P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint does not need detailed factual allegations, but “a plaintiff's obligation to provide the ‘grounds' of his ‘entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a claim for relief above the speculative level.” Twombly, 550 U.S. at 555 (cleaned up).
To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain sufficient factual allegations, which when accepted as true, “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “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.” Id. “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. “Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of ‘entitlement to relief.'” Id. (cleaned up).
Rule 9(b) provides: “In alleging fraud . . ., a party must state with particularity the circumstances constituting fraud . . . . Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally.” Fed.R.Civ.P. 9(b). This means that “[a]verments of
fraud must be accompanied by the ‘who, what, when, where, and how' of the misconduct charged.” Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003).
Federal courts must construe pro se complaints liberally. Hughes v. Rowe, 449 U.S. 5, 9 (1980); Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005). A pro...
