Roche v. BANK OF AMERICA | BofA here ... Just got a plain old fashion ASS WHUPP'IN in this M-T-D | All their LIES and DECEITS laid bare by well documented pleadings and the Judge responds by WAILING on BofA without mercy or compromise. A REAL Bankster Bludgeoning.


Roche v. BANK OF AMERICA | Judge gives BofA a plain old fashion ASS WHUPP’IN in this M-T-D | A REAL Bankster Bludgeoning.

Roche v. BANK OF AMERICA | Judge gives BofA a plain old fashion ASS WHUPP’IN in this M-T-D | A REAL Bankster Bludgeoning.


VICENTE A. ROCHE, Plaintiff,
BANK OF AMERICA, NATIONAL ASSOCIATION, a national banking association; and DOES 1 through 100, inclusive, Defendants.

Case No. 12-CV-2002 W (WVG).
United States District Court, S.D. California.
July 9, 2013.


THOMAS J. WHELAN, District Judge.

Pending before the Court is Defendant Bank of America, N.A.’s (“BANA”) motion to dismiss Plaintiff Vicente A. Roche’s (“Roche”) complaint under Federal Rule of Civil Procedure 12(b)(6). (MTD [Doc. 6-1].) Roche opposes. (Pl.’s Opp’n [Doc. 8].) The Court decides the matter on the papers submitted and without oral argument. See Civ. L. R. 7.1(d.1). For the reasons discussed below, the Court DENIES Defendant BANA’s motion.


On July 2, 2004, Roche entered into a written promissory note agreement with Countrywide Home Loans, Inc. (“Countrywide”) and secured a deed of trust (collectively referred to as the “Loan”) in order to finance the purchase of a condominium located at 830 South Sierra Avenue, Solana Beach, California (the “Residence”). (Compl. [Doc. 1], ¶ 9.) Roche agreed to pay a principal sum of $460,000.00, in monthly installments of $2,795.01, to Countrywide. (Id. at ¶ 10.) However, prior to March 16, 2012,[1] and without Roche’s knowledge, Countrywide sold and/or transferred all of its rights, titles, and interests to BANA. (Id. at ¶ 11.) Thus, BANA assumed all of Countrywide’s rights and obligations of the Loan, and Roche dealt solely with BANA regarding the Loan. (Id. at ¶¶ 12-13).

In May 2011, Roche failed to pay the property tax assessment on the Residence due to an inadvertent oversight. (Id. at ¶ 15.) BANA paid the assessment and established an escrow account for both he property tax it paid and for the payment of future property tax assessments. (Id. at ¶ 16.) BANA charged Roche $7,600.39 to fund the escrow account: $2,600.39 for the escrowed taxes and $5,000.00 for projected unfunded tax payments. (Id.) As of July 2011, BANA increased Roche’s monthly payments to $4,183.15. (Id.) Roche learned of this increase when he received a letter from BANA dated August 16, 2011, which informed him that the July 2011 payment was insufficient. (Id. at ¶ 17.) The letter advised Roche that he still owed $4,460.31 to bring his loan up to date. (Id.)

On August 16, 2011, Roche’s attorneys sent two checks to BANA for Roche’s July and August payments, each in the amount of $4,500.00. (Id. at ¶ 19.) Upon discovering that BANA did not credit one check toward the August payment, Roche requested a correction of BANA’s misallocations and information as to how he could satisfy and eliminate the escrow account. (Id. at ¶¶ 20-21.) Shortly thereafter, on or about September 6, 2011, a BANA employee, Sharon, stated that if Roche paid $11,291.00, the escrow would be removed.[2] (Id. at ¶¶ 22-23.) Sharon also told Roche he needed to send a letter to BANA’s payment research department requesting correction of the loan account. (Id. at ¶ 24.)

Roche sent BANA a letter, stating that BANA was not crediting Roche’s payments toward the Loan and requesting a correction of the account and the return of his original payment amount. (Id. at ¶ 26.) Roche also sent BANA two checks totaling $11,291.30. (Id. at ¶ 27.) BANA did not credit Roche’s September payment, remove the escrow account, or return Roche’s payments to their original amount. (Id. at ¶ 29.)

In October, Roche attempted to make a payment at a BANA branch in the amount of $2,795.01, his original payment amount. (Id. at ¶ 30.) The branch did not accept the payment, and Roche learned that BANA still had not reduced the payment amount, but also had assessed additional penalties. (Id.) Roche then contacted BANA’s customer service and spoke with John, who stated that Sharon’s directions were incorrect and that she had no authority to make the statements. (Id. at ¶ 31.) Roche asked John for BANA to provide an accounting on the Loan account, but BANA never responded to the request. (Id.)

In December, Roche again contacted customer service and spoke with Kristen, who advised that the escrow account could not be removed as suggested by Sharon. (Id. at ¶ 32.) Kristen told Roche that $3,198.22 was needed to bring the Loan current as of October 2011 and that subsequent monthly payments, inclusive of the escrow payments, would be $3,433.03. (Id. at ¶¶ 33-34.) Accordingly, Roche paid $3,198.22 for October and $3,433.03 for November. (Id. at ¶ 35.) BANA, however, still did not correct Roche’s account or accept the agreed-upon payment amount of $3,433.03 and continued to report Roche as delinquent to national credit bureaus. (Id. at ¶¶ 36-37.)

On or about December 6, 2011, Roche sent BANA another letter, detailing the errors in his account and requesting immediate correction of the account and the credit reports.[3] (Id. at ¶ 38.) BANA did not correct the account or respond to Roche’s request. (Id.) On May 23, 2012, counsel for Roche sent a letter to BANA disputing the accounting of the Loan and demanding its correction. (Id. at ¶ 40.) Counsel also demanded retraction of BANA’s negative credit reports and restoration of the original payment amount. (Id.) BANA responded to counsel’s letter on August 2, 2012, admitting it misapplied Roche’s August 2011 payment. (Id. at ¶ 41.) BANA did not mention or respond to Roche’s remaining requests. (Id.)

On August 13, 2012, Roche filed the instant action alleging (1) breach of written contract, (2) breach of oral contract, (3) negligent misrepresentation, (4) fraud, (5) violation of the Rosenthal Fair Debt Collection Practices Act, (6) violation of the Real Estate Settlement Procedures Act, (7) violation of the California Business and Professions Code, and (8) violation of the California Consumer Credit Reporting Agencies Act. The Complaint also requests an accounting and injunctive relief. On September 20, 2012, BANA moved to dismiss the Complaint in its entirety.


The Court must dismiss a cause of action for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) tests the complaint’s sufficiency. See Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). A complaint may be dismissed as a matter of law either for lack of a cognizable legal theory or for insufficient facts under a cognizable theory. Balisteri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1990). In ruling on the motion, a court must “accept all material allegations of fact as true and construe the complaint in a light most favorable to the non-moving party.” Vasquez v. L.A. Cnty., 487 F.3d 1246, 1249 (9th Cir. 2007).

However, the Court is not “required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, 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.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted). Instead, the allegations in the complaint must “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 570). “The plausibility standard is not akin to a `probability requirement,’ but rather asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.

Generally, the court may not consider material outside the complaint when ruling on a motion to dismiss. Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). However, the court may consider any documents specifically identified in the complaint whose authenticity is not questioned by the parties. Fecht v. Price Co., 70 F.3d 1078, 1080 n.1 (9th Cir. 1995) (superceded by statute on other grounds). Moreover, the court may consider the full text of those documents, even when the complaint quotes only selected portions. Id. The court may also consider material properly subject to judicial notice without converting the motion into a motion for summary judgment. Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994) (citing Mack v. South Bay Beer Distribs., Inc., 798 F.2d 1279, 1282 (9th Cir. 1986) abrogated on other grounds by Astoria Federal Savings and Loan Ass’n v. Solimino, 501 U.S. 104 (1991)).


A. Breach of Written Contract

BANA moves to dismiss Roche’s first claim for breach of written contract for failure to allege a breach of contract or damages. (MTD 4.) Roche counters, arguing that his complaint “alleges all necessary elements and facts to support [his] breach of contract claim.” (Opp’n 6.)

In California, “[a] cause of action for breach of contract requires proof of the following elements: (1) existence of a contract; (2) plaintiff’s performance or excuse for nonperformance; (3) defendant’s breach; and (4) damages to plaintiff as a result of the breach.” CDF Firefighters v. Maldonado, 158 Cal. App. 4th 1226, 1239 (2008). “Resolution of contractual claims on a motion to dismiss is proper if the terms of the contract are unambiguous.” Monaco v. Bear Stearns Residential Mortgage Corp., 554 F. Supp. 2d 1034, 1040 (C.D. Cal. 2008). “A contract provision will be considered ambiguous when it is capable of two or more reasonable interpretations.” Id. (citing Bay Cities Paving & Grading, Inc. V. Lawyers’ Mut. Ins. Co., 5 Cal. 4th 854, 867 (1993). “[T]he language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist.” Cal. Civ. Code § 1654.

1. Roche has properly plead a breach of written contract.

BANA first argues that Roche’s failure to timely pay his property taxes triggered a series of BANA actions that were all authorized by the Loan. (MTD 4.) These actions included (1) creating and funding an escrow account, (2) increasing Roche’s monthly payments to payoff this escrow account, and (3) charging late fees in light of Roche’s partial payments on his newly increased monthly payments. (Id.) According to BANA, because these actions were authorized by the Loan, Roche cannot claim that they constitute a breach of contract. (Id.) BANA’s argument is flawed, as it oversimplifies Roche’s claims.

There is no debate that Loan “explicitly authorizes BANA to create and fund an escrow account subsequent to a borrower’s failure to pay insurance or taxes.” (MTD 4.) Indeed, the parties do not dispute that Roche’s admitted failure to timely pay property taxes triggered this escrow account clause. (Compl. ¶ 15; MTD 4.) However, Roche’s breach of written contract claims are more numerous than BANA suggests. Apart from the challenged actions listed above, Roche also claims that BANA refused to accept payments, failed to credit payments, and assessed late charges and penalties in violation of the Loan. (Compl. ¶¶ 41, 45.) Such actions are not authorized by the Loan and therefore constitute properly pled breaches of contract.

In its reply, BANA argues that “plaintiff’s checks were credited to his account, but the checks were insufficient to satisfy the principal and interest due under the note in addition to the escrow allocation, and thus BANA charged plaintiff late fees for the amount due and unpaid.” (Reply 2.) BANA points to the payment history Roche attached to his complaint to support this theory. (Id.) However, the payment history is unclear as presented, and BANA has failed to clarify it in any meaningful way.

For example, Roche deposited two $4,500 checks on August 16, 2011. (Tab 2 [Doc. 1-2] 61, 62.[4]) Yet, only $4,500 was credited to the account on August 16, 2011. (Id. 59, 60.) Even more confusing is the fact that the $4,500 deposit was split into a “regular payment” of $4,183.15 and a “misc. posting” of $316.85. (Id. 59.) Then, curiously, less than a month later that “misc. posting” of $316.85 was removed from the account. (Id.) A similar split occurred when Roche deposited $11,221.30 on September 21, 2011. (Id. 60.) The reasons behind these splits is unclear from the account statement and BANA has provided no explanation as to why these splits occurred. Due to this lack of clarity, the Court is unwilling to accept BANA’s claims that Roche’s “checks were credited to his account” but were “insufficient” to avoid late fees.

2. Roche has properly plead damages.

BANA next argues that Plaintiff has failed to properly allege damages because his monthly payment increases, late fees, and negatively impacted credit scores were all due to his failures under the Loan. (MTD 4.) In essence, BANA suggests that because Roche has failed to plead a breach of the Loan, he has failed to plead damages. However, as explained above, BANA has properly plead numerous breaches of the Loan.

In light of the foregoing, BANA’s motion to dismiss Roche’s written contract claims is DENIED.

B. Breach of Oral Contract

BANA moves to dismiss Roche’s breach of oral contract claim as well. It claims that the alleged modification is barred by the statute of frauds. (MTD 4.) Roche claims that the alleged oral modification falls within an exception to the statute of frauds. (Opp’n 7.)

Under California law, “(b) [a] contract in writing may be modified by an oral agreement to the extent that the oral agreement is executed by the parties.” Cal. Civ. Code § 1698(b). “If there exists sufficient consideration for an oral modification agreement, then full performance by the promisee alone would suffice to render the agreement `executed’ within the meaning of section 1698.” Raedeke v. Gibraltar Sav. & Loan Assn., 10 Cal. 3d 665, 698 (1974).

Here, Roche’s allegations satisfy the requirements of Cal. Civ. Code § 1698(b). First, Roche has alleged sufficient consideration: he claims that the oral modification was reached after “Mr. Roche expended significant time and energy to negotiate and arrange for payment of the requested amount in full performance of his obligations.” (Compl. ¶ 51); see Ansanelli v. JP Morgan Chase Bank, N.A., C 10-3892 WHA, 2011 WL 1134451, at *4 (N.D. Cal. March 28, 2011). Second, he has alleged an oral modification of the Loan. (Compl. ¶ 49.) Third, he has alleged that he fully performed his obligations under the agreement. (Compl. ¶¶ 50-52.)

Both parties attempt to apply Cal. Civ. Code § 1698(c) to the case at bar. However, application of subdivision (c) is unnecessary because the oral modification, as plead, satisfies § 1698(b). “The introductory clause of subdivision (c) recognizes that the parties may prevent enforcement of executory oral modifications by providing in the written contract that it may only be modified in writing.” Cal. Civ. Code § 1698, law revision commission comments. However, the law revision commission explained that subdivision (c) is inapplicable to an alleged oral modification if it were otherwise valid under subdivision (b). As explained above, Roche has plead a valid oral modification under subdivision (b), and thus subdivision (c) is irrelevant here.

In light of the foregoing, BANA’s motion to dismiss Roche’s oral modification claims is DENIED.

C. Rosenthal Fair Debt Collection Practices Act

BANA also moves to dismiss Roche’s claims under the RFDCPA. It argues that it is not a “debt collector” as defined by the RFDCPA. (MTD 5.) It further argues that Plaintiff’s mortgage is not a “debt” under the RFDCPA. (Id. 6.)

First, Defendant is a “debt collector” under the RFDCPA. The definition of the “debt collector” under the RFDCPA includes any person who, “in the ordinary course of business, regularly, on behalf of himself or herself or others, engages in debt collection.” See Cal. Civ. Code § 1788.2(c). In this case, because Defendant is collecting a debt that it originated, and because it does so “in the ordinary course of business,” it is a “debt collector” under the RFDCPA. See id.

BANA cites a number of cases for the proposition that BANA, as a loan servicer, is not considered a “debt collector” under the RFDCPA. First and foremost, this argument directly contradicts the language of the RFDCPA. Nowhere does the RFDCPA indicate that “loan servicers” are outside the purview of the statute. Second, the Court disagrees with the reasoning of the courts in the cases upon which Defendant relies.

A review of BANA’s authority reveals that each case bases its conclusion that loan servicers are not governed by the RFDCPA on the faulty premise that the Fair Debt Collection Practices Act (“FDCPA”), which explicitly excludes loan servicers from its purview, is co-extensive with the RFDCPA. Lal v. Am. Home Servicing, Inc., 680 F. Supp. 2d 1218, 1224 (E.D. Cal. 2010); Nool v. Home Servicing, 653 F. Supp. 2d 1047, 1052-53 (E.D. Cal. 2009); Olivier v. NDEX West, LLC, No. 9-cv-0099-OWW-GSA, 2009 WL 2486314, at *3 (E.D. Cal. Aug. 10, 2009); Cordova v. America’s Servicing Co., No. C-08-05728 SI, 2009 WL 1814592, at *2, (N.D. Cal. June 24, 2009). However, this is not the case.

Under the FDCPA, the term “debt collector” does not include:

[A]ny person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity … (ii) concerns a debt which was originated by such person [or] (iii) concerns a debt which was not in default at the time it was obtained by such person.

15 U.S.C. § 1692a(6)(G). “The legislative history of section § 1692a(6) indicates conclusively that a debt collector does not include the consumer’s creditors, a mortgage servicing company, or an assignee of a debt, as long as the debt was not in default at the time it was assigned.” Perry v. Stewart Title Co., 756 F.2d 1197, 1208 (5th Cir. 1985). The RFDCPA includes no such exclusion for loan servicers. Specifically, the RFDCPA does not exclude banks which collect debts owed on debts which they originated. Thus, this Court concludes that the “debt collector” in the state statute is broader than the definition in the federal statute, and includes BANA in this case. See Cal. Civ. Code § 1788.2(c).

Second, Roche’s mortgage is a “debt” as defined by the RFDCPA. The definition of “debt” under the RFDCPA is “money, property or their equivalent which is due or owing or alleged to be due or owing from a natural person to another person.” Cal. Civ. Code § 1788.2(d). Nothing in the plain meaning of this statutory definition suggests that a mortgage, which is money owing to a person (defined as “a natural person, partnership, corporation, limited liability company, trust, estate, cooperative, association or other similar entity”), is outside the purview of the RFDCPA. Id. at §1788(g).

In addition, the cases cited by BANA are inapplicable as they all stand for the proposition that foreclosure on a mortgage is not “debt collection” and a foreclosed mortgage is not “debt” under the RFDCPA. Pittman v. Barclays Capital Real Estate, Inc., No. 09-CV-241-JM (AJB), 2009 WL 1108889, at *3 (S.D. Cal. April 24, 2009)(holding that “foreclosing on a deed of trust does not invoke the statutory protections” of the RFDCPA); Izenberg v. ETS Services, LLC, 589 F. Supp. 2d 1193, 1199 (C.D. Cal. 2008)(holding that “foreclosure does not constitute debt collection under the RFDCPA”); Keen v. Am. Home Mortgage Servicing, 664 F. Supp. 2d 1086, 1095 (E.D. Cal. 2009). Because the subject loan has not been foreclosed upon, this authority is inapposite.

In light of the foregoing, BANA’s motion to dismiss Roche’s RFDCPA claims is DENIED.

D. California Consumer Credit Reporting Agencies Act

BANA next moves to dismiss Roche’s claims under the California Consumer Credit Reporting Agencies Act (“CCCRAA”). It argues that Roche has not alleged, and cannot allege “a falsity” as required under the CCCRAA. (MTD 6.)

As an initial matter, a review of the CCCRAA section at issue reveals no requirement that a putative plaintiff allege a “falsity.” See § 1785.25(a). Instead, § 1785.25(a) states that “[a] person shall not furnish information on a specific transaction or experience to any consumer credit reporting agency if the person knows or should know the information is incomplete or inaccurate.” Roche alleges that BANA has done precisely what the statute forbids. Specifically, Roche alleges that BANA, “[o]n multiple occasions . . . furnished information to third party credit bureaus it knew or should have known was incomplete or inaccurate regarding specific transactions and/or experiences [BANA] had with Mr. Roche in relation to Mr. Roche’s Loan with [BANA].” (Compl. ¶ 115.) These allegations are sufficient to survive a motion to dismiss.

BANA’s argument that it did not report incomplete or inaccurate information to credit bureaus because the Loan authorized BANA to advance funds for taxes, demand repayment from Roche, and assess late fees is incomplete. (MTD 7.) While it is true that such activity was authorized by the Loan, Roche also claims that BANA refused to accept payments, failed to credit payments, and assessed late charges and penalties in violation of the Loan. (Compl. ¶ 45.) Moreover, Roche has alleged that BANA should not have reported that he was delinquent on his mortgage payments because “Mr. Roche took all steps requested by [BANA] to bring his Loan current and that [BANA] continually failed to correct its own errors to Mr. Roche’s Loan account, and reported Mr. Roche as delinquent . . . because of [BANA]’s own errors after being informed” of these errors. (Compl. ¶ 92.) These allegations directly contradict BANA’s claim that Roche’s delinquencies were all his own fault and instead suggested that BANA is partly to blame. (See, e.g., MTD 6-7.)

In light of the foregoing, BANA’s motion to dismiss Roche’s CCCRAA claims is DENIED.

E. Negligent Misrepresentation and Fraud

BANA also moves to dismiss Roche’s fifth and sixth causes of action for negligent misrepresentation and fraud. According to BANA, Roche has failed to allege inducement, reliance, or damages. (MTD 7.) BANA also argues that Roche’s negligent misrepresentation claims fail because it owes no duty of care to Roche. (Id. 8.)

A claim for fraud or intentional misrepresentation requires (1) a representation, (2) falsity, (3) knowledge of falsity, (4) intent to deceive, and (5) reliance and resulting damages. Cooper v. Equity Gen. Ins. Co., 219 Cal. App. 3d 1252, 1262 (1990). A claim for negligent misrepresentation is identical except plaintiff need not show defendant knew its representations were false, only that defendant lacked reasonable grounds to believe the representation was true. Neilson v. Union Bank of California, N.A., 290 F. Supp. 2d 1101, 1141 (C.D. Cal. 2003).

First, BANA argues that Roche “did not rely on the alleged misrepresentations regarding his monthly loan payment because he paid more than he was allegedly told he was owed.” (MTD 7.) However, a closer examination of the payment history contradicts this claim. Roche alleged that on September 6, 2011, BANA told him that a payment of $11,291.00 would return him to status quo on his mortgage payments. (Compl. ¶66.) Later that month, he appears to have deposited $11,291.30. (Tab 2 60.) Although this deposit is 30 cents higher than allegedly owed, it seems that Roche was attempting to comply with the alleged representations BANA made on the September 6 phone call. Therefore, the Court finds this argument unpersuasive.

Second, BANA argues that Roche “cannot allege detrimental reliance on any alleged statement regarding removal of the escrow account” because he was “always obligated to make monthly payments regardless of the existence of the escrow account.” (MTD 8.) This argument is misguided; although Roche was obligated to make monthly payments, he was not obligated to make monthly payments that exceed what BANA was due under the Loan. Again, BANA oversimplifies Roche’s claims by assuming that they only attack the creation of the escrow account when in reality they attack BANA’s alleged refusal to accept payments, failure to credit payments, and assessment of late charges and penalties in violation of the Loan.

Third, BANA argues that Roche cannot allege reliance on BANA’s alleged statement that “all negative reports to the credit bureaus would be corrected if Mr. Roche made the [October 2011 and November 2011] payments” because he was always obligated to make monthly loan payments and repay the property taxes. (Compl. ¶ 71; MTD 8.) However, as explained above, Roche was never obligated to pay BANA overages caused by BANA’s alleged failures.

BANA next maintains that it cannot be liable for negligent misrepresentation “because it owes plaintiff no duty of care” because the loan transaction between BANA and Roche does not exceed the scope of its conventional role as a money lender. (MTD 8-9.) Roche states that BANA exceeded its conventional role as lender when it offered Roche an opportunity to modify the escrow and payment terms of the loan. (Compl. ¶ 72.)

“The rule that a lender does not have a duty to a borrower is only a `general rule,’ and only applies to situations where a lender plays its conventional role. Johnson v. HSBC Bank USA, Nat. Ass’n, No. 11-CV-2091-JM-WVG, 2012 WL 928433, at *4 (S.D. Cal. March 19, 2012). In Johnson, the court found that a lender went beyond its conventional role when it “established a loan modification plan with Plaintiff, made excessive interest charges and made `derogatory credit reports to credit bureaus.'” Id.

Here, Roche has alleged that BANA went beyond its conventional role in a manner very similar to the defendant in Johnson. First, Roche alleges that BANA offered him an opportunity to modify the escrow account and payment terms of the loan. (Compl. ¶ 72.) Second, he alleges that BANA charged excessive unauthorized interest based on its own errors. (Compl. ¶ 75.) Third, he alleges that BANA made derogatory credit reports to credit bureaus. (Id.) Contrary to BANA’s argument, this is precisely “beyond the domain of a usual money lender.” Ansanelli, 2011 WL 1134451, at *7; Johnson, 2012 WL 928433, at *4. Roche’s allegations constitute “sufficient active participation to create a duty of care to plaintiffs to support a claim for negligence.” Id.

In light of the foregoing, BANA’s motion to dismiss Roche’s negligent misrepresentation and fraud claims is DENIED.

F. Real Estate Settlement Procedures Act

BANA moves to dismiss Roche’s claims for violations of the Real Estate Settlement Procedures Act (“RESPA”). BANA argues that Roche “has not alleged any damages as a result of the alleged failure to properly respond to the purported QWRs [“Qualified Written Requests”].” (MTD 9.) BANA also argues that the alleged damages were caused by Roche’s failure to pay his taxes and loan on time. (MTD 10.) Contrary to BANA’s suggestions, the complaint states that due to BANA’s failure to respond to Roche’s QWRs on at least three separate occasions, Roche suffered damages including higher monthly payments, unauthorized charges, negative impacts on his credit, and severe emotional distress. (Compl. ¶¶ 95-105, 108.) These allegations of damages are sufficient under RESPA at this stage.

In light of the foregoing, BANA’s motion to dismiss Roche’s RESPA claims is DENIED.

G. Business and Professions Code

BANA next moves to dismiss Plaintiff’s Business & Professions Code § 17200 claim. First, BANA argues that Roche’s claim is “derivative of the many other failed causes of action in the complaint,” and therefore fails because the entire “complaint is baseless.” (MTD 10-11.) In essence, BANA is arguing that for the same reasons stated in its arguments for dismissal of Roche’s other claims, the § 17200 claim should be dismissed as dependent on those claims. This argument fails as Roche’s other claims survive BANA’s motion.

Second, BANA again argues that Roche’s claim is deficient because Roche was obligated to make loan payments and tax payments in a timely matter, and his failure to do so was the sole cause of his alleged injuries. (MTD 11.) As explained in detail above, Roche does not dispute that he was obligated to pay his taxes and mortgage in a timely manner, but instead that BANA breached the Loan in a variety of ways when Roche was trying to bring his payments back to status quo.

In light of the foregoing, BANA’s motion to dismiss Roche’s § 17200 claim is DENIED.

H. Accounting

Roche asks this Court to perform an accounting to determine the amount of money he owes BANA. (Compl. ¶¶ 60-64.) Under California law, a plaintiff may assert a claim for accounting if a fiduciary relationship between the plaintiff and defendant exists, or if “`the accounts are so complicated that an ordinary legal action demanding a fixed sum is impracticable.'” Wolf v. Super. Ct., 106 Cal. App. 4th 625, 34-35 (2003); Civic W. Corp. v. Zila Indus. Inc., 66 Cal. App. 3d 1, 14 (1977) (quoting 3 Witkin, Cal. Proc. 2d (1971) Plead, § 674, p. 2300-01).

While Roche’s claim for accounting does not expressly allege a fiduciary relationship exists between the parties, it does explain that due to “a number of accounting errors . . . Roche is unable to determine the principal owed on the Loan.” (Compl. ¶¶ 60-62.) Not only does Roche claim that he is unable to determine the principal owed on the loan, he also claims that numerous accounting errors committed by BANA necessitate the accounting. (Id. ¶¶ 62-63.) Moreover, as explained in detail above, the account history is unclear at best. Accordingly, the Court finds the allegations in the Complaint sufficient to establish that the account is “complicated” at this stage of litigation. See Civic W. Corp., 66 Cal. App. 3d at 14.

BANA’s argument that Roche’s accounting claim does not arise from relevant actionable claims fails as well, since the Court has not dismissed any of Roche’s claims. (MTD 11; Reply 8.) In light of the foregoing, BANA’s motion to dismiss Roche’s accounting claim is DENIED.

I. Declaratory Relief

Finally, BANA moves to dismiss Roche’s declaratory relief claim. However, BANA’s argument that Roche’s declaratory relief claim does not arise from “any potentially valid claim” fails, since the Court has not dismissed any of his claims. (MTD 11.) In light of the foregoing, BANA’s motion to dismiss Roche’s declaratory relief claim is DENIED.


For the foregoing reasons, the Court DENIES Defendant BANA’s motion [Doc. 6-1].


[1] Roche does not know on what date Countrywide sold and/or transferred its interest to BANA, but the transfer to BANA was recorded on March 16, 2012. (Id. at ¶ 11.)

[2] $7,425.00 would go toward the escrow account, and $3,866.00 would cover the September 2011 payment. (Id. at ¶ 23.)

[3] Roche asserts his credit score dropped from 790 to 625. (Id. at ¶ 46.)

[4] The exhibit is not consecutively paginated, so the Court refers to the page numbers assigned by the Court’s electronic filing system.

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One Response to “Roche v. BANK OF AMERICA | Judge gives BofA a plain old fashion ASS WHUPP’IN in this M-T-D | A REAL Bankster Bludgeoning.”

  1. Larry Anderson says:

    Fantastic site!

    I am a 75 Y/O Disabled Vet with 100% combat service connection VA rating. I have some cognitive problems due to Post Traumatic Brain Injury in the service. Bank of America has repeatedly screwed me around in trying to save my family home. As I am disabled our mother deeded the family home to my younger sister who was expected to out live me. My sister Nancy was sold a HECM loan by Seattle Mtg co that was later taken over by BAC. When the deal was made Nancy did not have capacity to understand the terms as she had had an aneurism, and dementia diagnosed by her treating doctors. When I sent medical proof of her condition and Barbra Boxer filed an OCC complaint for me. Nancy died in 2008 2 years after doing the HECM. I was left off the HECM by oversight. In Mid 2010 after much communication with “the office of the President” I received a call from a para legal Ben Allen of the Regulatory Response Group. In the mean time a local attorney had prepared and filed a suit to restrain the pending foreclosure but was not yet served. I asked Mr. Allen if he was the proper party to review our unnerved complaint. Mr. Allen advised me that “Bank of America has made the decision to allow you to keep your home under a reverse mortgage.” After all the stress I broke down and cried! BAC then rescinded the foreclosure and ordered a appraisal. after promising to send me a copy of the appraisal they never did after repeated requests. My contact with the “office of the President Kristi Dobbins first indicated the bank intended to allow me to replace my sister on the existing loan. Then they changed their mind and said it would be a new loan written by BAC. then I completely lost contact after many calls and Faxes Registered letters no response. In early 2011 I got a letter from the regulatory response unit stating that if I could close a new HECM loan in 45 days BAC would consider it. I responded in writing and by telecom. the person who answered said she had no knowledge of Mr. Allen and there was no indication he ever made any contact with me. I requested they check their e mail records as Allen was very positive my problem had been solved. I was also informed that BAC no longer HECM loans after Feb 2011. I was told to get my own new HECM loan. Long and Short I got a new loan offer from Generation Mtg with a pay off GFE of 61 K as the value of the property had dropped by about 50%. in this very rural area. A local forensic appraisal indicated the original HECM loan was over appraised by 40K. A securitization audit shows the loan was securitized by countrywide, the chain of title broken and the auditor opinion is that BAC has no standing to exercise any rights to foreclose. I now have a new loan with a better offer from Generation Mtg of about 65K GFE based on an increase of value. After accepting the earlier offer Now BAC OUTSIDE LEGAL refuses to take the offer. That is the 4th deal agreed to and now rejected. My local doctor filed a suspected Elder Financial Abuse report with Lake County Adult Protective Service that went to Don Anderson the lake co DA who did my sisters will before he became DA.

    I had a very sever physical and mental reaction was in the hospital with high blood pressure blowing out my left eye causing temp blindness and acute anxiety and panic attacks as to BAC acts and threat of being homeless. BAC sold the servicing to RMS Reverse Mortgage Solutions who initially said they had the power to resolve the issue and gave high hopes they would do so and now they are acting as if they now take orders from BAC who they say owns the loan.

    I would really appreciate Competent Legal help on this case to save my home.

    I have been in touch with Martin Andelman, who is also offered help but no result yet. Joel Sucher published my case in Huffing Post and American Banker and is following the case. Rob Somerton is a local blogger “Rob @ Anna v Bank of America” and has done a Video timeline and Joel has indicated he is going to include his in a documentary “Foreclosure Diaries” he is a filmmaker and blogger. This has slowed BAC up a bit I believe. My phone nr is 707 277 9041 address is 10638 Fairway Dr. Kelseyville CA 95451 Thank you for your kind consideration. Larry Anderson


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