1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DEBRA A. BERNARD, Case No. 2:25-cv-00511-DAD-CSK PS 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION TO EFILE (ECF No. 11) 13 v.

FINDINGS AND RECOMMENDATIONS

14 FREEDOM MORTGAGE DENYING PLAINTIFF’S IFP

CORPORATION, APPLICATION, GRANTING

15 DEFENDANT’S MOTION TO DISMISS Defendant. 16 (ECF Nos. 5, 11) 17 18 Pending before the Court is Defendant Freedom Mortgage Corporation’s motion 19 to dismiss Plaintiff Debra A. Bernard’s Complaint.1 (ECF No. 5.) Plaintiff is appearing 20 without counsel. Plaintiff brings claims for alleged violations of the California Homeowner 21 Bill of Rights; alleged violations of the Real Estate Settlement Procedures Act; breach of 22 contract; alleged violations of the Fair Debt Collection Practices Act; and fraudulent 23 misrepresentation. The motion to dismiss is fully briefed. (ECF Nos. 5, 10, 14.) Pursuant 24 to Local Rule 230(g), the Court submits the motion upon the record and briefs on file. 25 Plaintiff has also filed a motion to proceed in forma pauperis and to electronically 26 file documents. (ECF No. 11.) 27 1 This matter proceeds before the undersigned pursuant to 28 U.S.C. § 636, Fed. R. 28 Civ. P. 72, and Local Rule 302(c). 1 For the reasons that follow, the Court ORDERS that Plaintiff’s motion to 2 electronically file documents is GRANTED in part and DENIED in part. The Court 3 RECOMMENDS Defendant’s motion to dismiss be GRANTED in part and DENIED in 4 part, and Plaintiff’s claims against Defendant be DISMISSED. Further the Court 5 RECOMMENDS Plaintiff’s motion to proceed in forma pauperis be DENIED as moot. 6 I. BACKGROUND 7 A. Facts2 8 As an initial matter, Defendant notes that Plaintiff’s Complaint cites to multiple 9 exhibits, but did not include a copy of those exhibits when she filed her Complaint. Def. 10 Mot. at 2 n.2 (ECF No. 5); see Compl. (ECF No. 12); ECF No. 1-2. Defendant received 11 these exhibits from Plaintiff via email and attached them to the motion to dismiss. See 12 Def. Mot. at 2 n.2; Declaration of Sarah S. Mattingly, Exhs. A-C (ECF Nos. 5-1, 5-2, 5-3). 13 Because the Complaint filed did not include any exhibits and Plaintiff has not confirmed 14 whether the exhibits Defendant submitted are the actual exhibits to the Complaint, the 15 Court declines to consider these exhibits in ruling on Defendant’s motion to dismiss.3 16 The motion to dismiss is therefore not converted to a motion for summary judgment. 17 Plaintiff brings her claims against Defendant for the alleged improper non-judicial 18 foreclosure of her property located at 10797 Woodring Drive, in Mather, California 19 95655. Compl. § I.A. Plaintiff alleges that she is a trustee under The DrewLove 20 Revocable Living Trust dated July 7, 2018, amended September 9, 2022, and that she 21 operates multiple businesses under this trust. Id. § II.1. On June 10, 2022, Plaintiff 22 executed a deferred partial claim in the amount of $63,345.64 as part of a loan 23 2 These facts primarily derive from the Complaint (ECF No. 12), which are construed in 24 the light most favorable to Plaintiff as the non-moving party. Faulkner v. ADT Sec. Servs., 706 F.3d 1017, 1019 (9th Cir. 2013). However, the Court does not assume the 25 truth of any conclusory factual allegations or legal conclusions. Paulsen v. CNF Inc., 559 26 F.3d 1061, 1071 (9th Cir. 2009). 3 The Court also notes that certain exhibits attached to Defendant’s motion to dismiss 27 have the signature blocked out, and it is unclear whether this redaction was in the original exhibit or has been subsequently redacted from the exhibit. See, e.g., Mattingly 28 Decl., Exh. C at 8, 14, 23. 1 modification. Id. § IV.1. As part of the California Mortgage Relief Program, a partial 2 payment of $57,885.88 was made on May 17, 2023. Id. The remaining balance was 3 $5,459.76. Id. On April 29, 2024, Plaintiff requested a new loan modification. Id. § IV.2. 4 On May 13, 2024, Plaintiff was found eligible for three programs related to mortgage 5 payment assistance by Defendant. Id. § IV.3. On May 30, 2024, Plaintiff received a letter 6 informing her that her application for loss mitigation assistance was complete and that 7 she should expect a final decision within thirty (30) days. Id. 8 Plaintiff alleges that on May 22, 2024, she received a modification agreement 9 package and trial plan payment agreement that contained “significant discrepancies” in 10 the promissory note, including the dollar amounts regarding the partial claim. Compl. 11 § IV.4. Beginning May 28, 2024, Plaintiff requested clarification about the discrepancies 12 and sent five emails requesting information from Defendant. Id. § IV.5. Plaintiff alleges 13 that Defendant failed to provide a qualified written response to Plaintiff’s questions, and 14 instead replied with “standardized auto responses.” Id. § IV.6. On December 3, 2024, 15 Plaintiff alleges that Defendant initiated a non-judicial foreclosure sale through Nestor 16 Solutions. Id. § IV.8. 17 Plaintiff brings the following claims against Defendant: violation of the California 18 Homeowner Bill of Rights; violation of the Real Estate Settlement Procedures Act 19 (“RESPA”); breach of contract; violation of the Fair Debt Collection Practices Act 20 (“FDCPA”); and fraudulent misrepresentation. Compl. § V. 21 B. Procedural Posture 22 Plaintiff filed this action in the Sacramento County Superior Court on January 6, 23 2025. See Compl. at 1. On February 12, 2025, Defendant removed this action to this 24 Court based on federal question jurisdiction. (ECF No. 1 at 2.) Defendant filed its motion 25 to dismiss on March 19, 2025. (ECF No. 5.) On April 10, 2025, the Court vacated the 26 hearing because Plaintiff failed to timely file an opposition to the motion to dismiss. (ECF 27 / / / 28 / / / 1 No. 9.) The Court also ordered Plaintiff to file a physically signed copy of her Complaint.4 2 Id. On April 21, 2025, Plaintiff filed an opposition to the motion to dismiss and a signed 3 copy of her Complaint. (ECF Nos. 10, 12.) Defendant filed a reply. (ECF No. 14.) Plaintiff 4 also filed a motion to proceed in forma pauperis and a motion to file documents 5 electronically. (ECF No. 11.) 6 II. LEGAL STANDARDS 7 Defendant moves to dismiss the Complaint for insufficient service, failure to state 8 a claim, and failure to name an indispensable party. 9 A. Pro Se Pleadings, Construction and Amendment 10 Pro se pleadings are to be liberally construed and afforded the benefit of any 11 doubt. Chambers v. Herrera, 78 F.4th 1100, 1104 (9th Cir. 2023). Upon dismissal of any 12 claims, the court must tell a pro se plaintiff of a pleading’s deficiencies and provide an 13 opportunity to cure such defects. Garity v. APWU Nat'l Lab. Org., 828 F.3d 848, 854 (9th 14 Cir. 2016). However, if amendment would be futile, no leave to amend need be given. 15 Lathus v. City of Huntington Beach, 56 F.4th 1238, 1243 (9th Cir. 2023). 16 To determine the propriety of a dismissal motion, the court may not consider facts 17 raised outside the complaint (such as in an opposition brief), but it may consider such 18 facts when deciding whether to grant leave to amend. Broam v. Bogan, 320 F.3d 1023, 19 1026 n.2 (9th Cir. 2003). 20 B. Failure to State a Claim under Rule 12(b)(6) 21 A claim may be dismissed because of the plaintiff’s “failure to state a claim upon 22 which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A complaint fails to state a claim if 23 it either lacks a cognizable legal theory or sufficient facts to support a cognizable legal 24 theory. Mollett v. Netflix, Inc., 795 F.3d 1062, 1065 (9th Cir. 2015). When considering 25 whether a claim has been stated, the court must accept the well-pleaded factual 26

27 4 Defendant notes in its motion that Plaintiff failed to sign her original Complaint. Def. Mot. at 8. This argument is now moot because Plaintiff has since filed a signed copy of 28 her Complaint with the Court. (ECF No. 12.) 1 allegations as true and construe the complaint in the light most favorable to the non- 2 moving party. Id. However, the court is not required to accept as true conclusory factual 3 allegations contradicted by documents referenced in the complaint, or legal conclusions 4 merely because they are cast in the form of factual allegations. Paulsen v. CNF Inc., 559 5 F.3d 1061, 1071 (9th Cir. 2009). 6 C. Failure to Serve Under Rule 12(b)(5) 7 “When a case is removed from state court to federal court, the question whether 8 service of process was sufficient prior to removal is governed by state law.” Whidbee v. 9 Pierce Cnty., 857 F.3d 1019, 1023 (9th Cir. 2017). However, in cases removed from 10 State court to any district court of the United States, a plaintiff may serve process upon 11 removal if service was defective or was not attempted. Id. (citing 28 U.S.C. § 1448). “A 12 federal court does not have jurisdiction over a defendant unless the defendant has been 13 served properly under [Federal Rule of Civil Procedure] 4.” Direct Mail Specialists v. 14 Eclat Computerized Techs., Inc., 840 F.2d 685, 688 (9th Cir. 1988). A motion under Rule 15 12(b)(5) challenges the mode or method of service of the summons and complaint. 16 Wasson v. Riverside Cnty., 237 F.R.D. 423, 424 (C.D. Cal. 2006). 17 Service of the summons and complaint must occur within 90 days of removing the 18 action to federal court unless otherwise ordered. Fed. R. Civ. P. 4(c)(1) & (m); 28 U.S.C. 19 § 1448; see Vasquez v. N. Cnty. Transit Dist., 292 F.3d 1049, 1053 (9th Cir. 2002). If a 20 defendant is not served by this deadline, then the court must dismiss the action without 21 prejudice against that defendant, or order that service be made within a specified time. 22 Fed. R. Civ. P. 4(m). 23 Rule 4 is a flexible rule that should be liberally construed. United Food & 24 Commercial Workers Union v. Alpha Beta Co., 736 F.2d 1371, 1382 (9th Cir. 1984). 25 However, neither actual notice nor simply naming the defendant in the complaint will 26 provide personal jurisdiction unless there is “substantial compliance” with Rule 4. Benny 27 v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986). When a defendant challenges service, the 28 plaintiff bears the burden of establishing its sufficiency under Rule 4. See Brockmeyer v. 1 May, 383 F.3d 798, 801 (9th Cir. 2004). If service of process was insufficient, a district 2 court has discretion to dismiss an action or quash service. See S.J. v. Issaquah School 3 Dist. No. 411, 470 F.3d 1288, 1293 (9th Cir. 2006). 4 D. Failure to Join a Party Under Rule 12(b)(7) 5 Rule 12(b)(7) permits a party to move to dismiss a case for “failure to join a party 6 under Rule 19.” Fed. R. Civ. P. 12(b)(7). Rule 19 prescribes a three-step inquiry to 7 determine whether a party is required: (1) whether the absent party is necessary; (2) if 8 so, whether it is feasible to order that absent party to be joined; and (3) if joinder is not 9 feasible, whether the case can proceed without the absent party, or whether the absent 10 party is indispensable such that the action must be dismissed. Salt River Project Agric. 11 Improvement & Power Dist. v. Lee, 672 F.3d 1176, 1179 (9th Cir. 2012); see Fed. R. 12 Civ. P. 19(a). In determining whether Rule 19 requires joinder of additional parties, a 13 court may consider evidence outside the pleadings. See McShan v. Sherrill, 283 F.2d 14 462, 464 (9th Cir. 1960). The party moving for dismissal under Rule 12(b)(7) bears the 15 burden of producing evidence in support of the motion. Biagro Western Sales, Inc. v. 16 Helena Chem. Co., 160 F. Supp. 2d 1136, 1141 (E.D. Cal. 2001). 17 Under the first step, a party may be “necessary” if: (1) in the party's absence, the 18 court cannot accord complete relief among existing parties; (2) the absent party has an 19 interest in the action and resolving the action without him may impair or impede his 20 ability to protect that interest; and (3) the absent party has an interest in the action and 21 resolving the action in his absence may leave an existing party subject to multiple or 22 inconsistent obligations. See Fed. R. Civ. P. 19(a)(1); Salt River, 672 F.3d at 1179. The 23 third step of the Rule 19 inquiry is one of “equity and good conscience” that requires a 24 “practical examination of the circumstances” and consideration of at least four interests: 25 (1) the plaintiff's interest in having a forum; (2) the defendant’s interest in not proceeding 26 without the required party; (3) the interest of the non-party by examining the extent to 27 which the judgment may impair or impede its ability to protect its interest in the matter; 28 and (4) the interests of the courts and the public in complete, consistent, and efficient 1 settlement of controversies. Paiute-Shoshone Indians of the Bishop Community of the 2 Bishop Colony v. City of Los Angeles, 637 F.3d 993, 997, 1000 (9th Cir. 2011). 3 III. DISCUSSION 4 Plaintiff brings the following claims against Defendant: (1) violation of the 5 California Homeowner Bill of Rights for alleged non-compliance with California Civil 6 Code § 2923.7; (2) violation of RESPA for failing to comply with 12 U.S.C. § 2605(e) by 7 not providing clear disclosures of costs and fees associated to the loan modification 8 process; (3) breach of the terms of a mortgage contract; (4) violation of the FDCPA by 9 engaging in abusive debt collection practices; and (5) fraudulent misrepresentation by 10 relying on “robo-signed” foreclosure documents. Defendant moves to dismiss the 11 Complaint for insufficient service, failure to state a claim, and failure to name an 12 indispensable party. 13 A. Plaintiff Has Failed to Properly Serve Defendant Under Rule 12(b)(5) 14 Defendant argues that Plaintiff’s Complaint should be dismissed for insufficient 15 service of process. Def. Mot. at 7-8. Because Plaintiff attempted service before 16 Defendant removed the case to this federal court, the Court considers whether Plaintiff 17 properly served Defendant under California law. See Whidbee, 857 F.3d at 1023. 18 Plaintiff alleges that Defendant is a corporation. Compl § II.2. Under California 19 law, a corporation may be served by delivering a copy of the summons and the 20 complaint to the designated agent or the president, chief executive officer, or head of the 21 corporation. Cal. Civ. Proc. Code § 416.10. In lieu of personal delivery, summons may 22 be served by leaving a copy of the summons and the complaint during usual office hours 23 at his or her office, or usual mailing address of no physical address is known. Id. 24 § 415.20(a). If the summons and complaint cannot be personally delivered, a summons 25 may be served by leaving a copy of the summons and complaint at the person’s dwelling 26 house, usual place of abode, or usual place of business in the presence of a competent 27 member of the household or person apparently in charge, and then mailed by first-class 28 mail. Id. § 415.20(b). 1 Here, it appears that Plaintiff attempted to serve Defendant by email at 2 lossmitigation@freedommortgage.com. Declaration of Jamie Mottola In Support Of 3 Defendant’s Notice of Removal, Exh. A at 32 (ECF No. 1-2). Plaintiff filed a proof of 4 electronic service on January 9, 2025 in the Sacramento Superior Court, indicating that 5 the “proof of electronic service” and “summons” were served on Defendant at this email 6 address. Id. There is no indication that Plaintiff attempted to serve the Complaint on 7 Defendant. Further, Defendant argues that this email address is not a designated 8 address or agent for Defendant. Def. Mot. at 7-8. Accordingly, Plaintiff did not properly 9 serve Defendant under California law. 10 Plaintiff has not met her burden to show that service was proper. In Plaintiff’s 11 opposition to Defendant’s motion to dismiss, she does not address Defendant’s 12 argument about service at all. See Pl. Opp’n (ECF No. 10). Under Rule 4(m), if the 13 Defendant is not served within 90 days, the action must be dismissed without prejudice 14 or service must be ordered within a specific timeframe. Fed. R. Civ. P. 4(m). However, 15 the Court must extend time for service upon a showing of good cause, and if good cause 16 is not established, the Court may extend time for service upon a showing of excusable 17 neglect. See Crowley v. Bannister, 734 F.3d 967, 976 (9th Cir. 2013). Plaintiff has made 18 no attempt to show good cause or excusable neglect for her failure to serve Defendant. 19 Accordingly, the Court recommends GRANTING Defendant’s motion to dismiss on this 20 ground, and recommends that Plaintiff’s Complaint be DISMISSED for failure to properly 21 serve Defendant. 22 B. Plaintiff Fails to State a Claim Under Rule 12(b)(6) 23 1. California Homeowner Bill of Rights 24 Plaintiff alleges Defendant violated the California Homeowner Bill of Rights. 25 Compl. § V.1. Specifically, Plaintiff alleges (1) Defendant violated California Civil Code 26 section 2923.7 because she never spoke to a single point of contact; (2) Defendant did 27 not suspend foreclosure proceedings while Plaintiff’s loan modification application was 28 under review; and (3) Defendant violated section 2924.17 by “robo-signing” foreclosure 1 filings. Id. For the second claim, Plaintiff cites to a regulation under RESPA. Therefore, 2 the Court will discuss that claim in the RESPA section. 3 The Court notes that Plaintiff has not responded to Defendant’s arguments in its 4 motion to dismiss Plaintiff’s claims under the California Homeowner Bill of Rights. See 5 Pl. Opp’n (ECF No. 10). Plaintiff’s non-opposition constitutes an abandonment of the 6 claim. See Moore v. Apple, Inc., 73 F. Supp. 3d 1191, 1205 (N.D. Cal. 2014) (collecting 7 cases); El v. San Diego Unified Sch. Dist., 2021 WL 3240298, at *2 (S.D. Cal. June 29, 8 2021). Courts generally dismiss claims with prejudice “where a plaintiff simply fails to 9 address a particular claim in its opposition to a motion to dismiss that claim.” Homsy v. 10 Bank of Am., N.A., 2013 WL 2422781, at *5 (N.D. Cal. June 3, 2013). Therefore, 11 Plaintiff’s claims under the California Homeowner Bill of Rights should be dismissed with 12 prejudice. See id. Even if Plaintiff did oppose this portion of Defendant’s motion to 13 dismiss, Plaintiff’s claims still fail on the merits as discussed below. 14 a. California Civil Code section 2923.7 15 Plaintiff alleges that Defendant violated California Civil Code section 2923.7 16 because Plaintiff never spoke to the single point of contact she was assigned. Compl. at 17 § I.A. Under section 2923.7, “the mortgage servicer shall promptly establish a single 18 point of contact and provide to the borrower one or more direct means of communication 19 with the single point of contact” when a borrower requests a foreclosure prevention 20 alternative. Cal. Civ. Code § 2923.7(a). Section 2923.7(b) lists the single point of 21 contact’s responsibilities. A material violation of section 2923.7 is “one that affected the 22 borrower’s loan obligations, disrupted the borrower’s loan-modification process, or 23 otherwise harmed the borrower.” Morris v. JPMorgan Chase Bank, N.A., 78 Cal. App. 24 5th 279, 304 (2022). 25 Here, Defendant argues that Plaintiff’s claim fails because Plaintiff alleged that 26 she was assigned a single point of contact, which does not support a violation. See Def. 27 Mot. at 9. Plaintiff has not alleged that the single point of contact failed to perform his or 28 her statutory duties or alleged that any potential violation was material. See Morris, 78 1 Cal. App. 5th at 304. Therefore, Plaintiff fails to state a claim for a violation of California 2 Civil Code section 2923.7, and this claim against Defendant should be dismissed. 3 b. California Civil Code section 2924.17 4 Plaintiff alleges that California Civil Code section 2924.17 “requires servicers to 5 ensure accuracy in foreclosure filings” and “[r]obo-signing violates this requirement.” 6 Compl. § 5.1.D. Section 2924.17 sets forth requirements that certain filings— 7 declarations, affidavits, notices of default—“be accurate and complete and supported by 8 competent and reliable evidence,” among other considerations. Cal. Civ. Code 9 § 2924.17. Plaintiff has not elaborated as to how Defendant violated this section or 10 alleged specific facts in support. Accordingly, Plaintiff’s claim under this section should 11 be dismissed for failure to state a claim. 12 2. Real Estate Settlement Procedures Act (“RESPA”) 13 a. 12 U.S.C. § 2605(e) 14 Plaintiff alleges that Defendant violated RESPA, and cites 12 U.S.C. § 2605(e). 15 Compl. § V.2.A. Plaintiff alleges that Defendant failed to provide clear disclosures of 16 costs and fees associated with the modification process, “particularly in regard to the 17 handling of borrower inquires, error resolution, debt validation and accounting for 18 payments” as Plaintiff requested via email. Id. Plaintiff states that Defendant was 19 required to investigate and resolve Plaintiff’s disputes within thirty business days. Id. 20 § V.2.B. Defendant argues that RESPA does not apply to loss mitigation, and Plaintiff 21 emailed a qualified written request to Defendant instead of sending it to the designated 22 address. Def. Mot. at 12-13. 23 12 U.S.C. § 2605(e) provides that if a “servicer” of a federally related mortgage 24 loan receives a “qualified written request” from the borrower for information related to the 25 servicing of the loan, the servicer shall provide a written response within five days unless 26 action is taken within that time. 12 U.S.C. § 2605(e)(1)(A). The term “servicing” means 27 “receiving any scheduled periodic payments from a borrower pursuant to the terms of 28 any loan, . . . and making the payments of principal and interest and such other 1 payments with respect to the amounts received from the borrower as may be required 2 pursuant to the terms of the loan.” 12 U.S.C. § 2605(i)(3). A qualified written request is a 3 written correspondence that includes the name and account of the borrower and a 4 statement of the reasons for the belief of the borrower that the account is in error or 5 provides sufficient detail to the servicer regarding other information sought by the 6 borrower. Id. § 2605(e)(1)(B). 7 Defendant argues that Plaintiff’s qualified written request was related to loan 8 modification, and not related to servicing of the loan as required under § 2605(e). Def. 9 Mot. at 12. Here, Plaintiff states that Defendant “fail[ed] to provide clear disclosures of 10 costs and fees associated with the modification process, particularly in regard to the 11 handling of borrower inquiries, error resolution, debt validation and accounting for 12 payments.” Compl. § V.2.A. In Plaintiff’s opposition, she states that Defendant failed to 13 respond appropriately to inquiries regarding payment application, status of her account, 14 and handling of escrow, which she alleges falls within the scope of servicing. Pl. Opp’n 15 at 2. However, Plaintiff does not sufficiently allege that her requests were related to 16 payments pursuant to the terms of the loan. See Medrano v. Flagstar Bank, FSB, 704 17 F.3d 661, 666-67 (9th Cir. 2012) (stating that servicing does not include “transactions 18 and circumstances surrounding a loan’s origination”; and “distinguish[ing] between 19 letters that relate to borrowers’ disputes regarding servicing . . . and those regarding the 20 borrower’s contractual relationship with the lender”). 21 Defendant also argues that Plaintiff did not send her qualified written requests to 22 the proper address. Def. Mot. at 13-14. A servicer may establish an address that a 23 borrower must use to request information. See 12 C.F.R. § 1024.36(b). Defendant states 24 that letters provided to Plaintiff stated that all qualified written requests must be sent to a 25 certain address. Def. Mot. at 14. Plaintiff alleges that she emailed her requests to 26 Defendant. Compl. § V.2.A. Accordingly, it does not appear that Plaintiff complied with 27 the requirements to send a qualified written request to a specific address. 28 Therefore, Plaintiff has failed to state a claim under section 2605(e) because 1 Plaintiff has not alleged that she requested information about servicing from Defendant 2 and because Plaintiff did not mail her requests to the appropriate address. The RESPA 3 claim should be dismissed with leave to amend to the extent Plaintiff can allege 4 additional facts supporting her claim to correct the deficiencies. 5 b. Suspension of Foreclosure Proceedings 6 Plaintiff alleges that under 12 C.F.R. § 1024.41, Defendant was required to 7 suspend foreclosure proceedings while Plaintiff’s loan modification application was 8 under review. Compl. § V.1.C. This is a section of RESPA, not the Homeowner Bill of 9 Rights, but Plaintiff has included this allegation under the Homeowner Bill of Rights 10 heading. Defendant interprets this as a claim under the Homeowner Bill of Rights and 11 cites to California Civil Code section 2924.11. Def. Mot. at 9. However, the statute 12 Defendant cites does not correspond to the language quoted. It appears California Civil 13 Code section 2924.11 was amended in 2019, and the language Defendant quoted may 14 be from an older version of the statute.5 Defendant acknowledges that Plaintiff does not 15 cite this California provision, but states there are similarities between 12 C.F.R. 16 § 1024.41 and the statute Defendant analyzes. See Def. Mot. at 10 n.6. Because 17 Plaintiff cites a specific regulation, and because it is unclear what statute Defendant is 18 referring to in its motion, the Court will analyze Plaintiff’s claim under the regulation she 19 cited. 20 In her opposition, similar to the Homeowner Bill of Rights claims, Plaintiff does not 21 address this regulation or Defendant’s arguments about California Civil Code section 22 2924.11. See Pl. Opp’n. Plaintiff’s non-opposition constitutes an abandonment of the 23 claim. See Moore, 73 F. Supp. 3d at 1205; El, 2021 WL 3240298, at *2. Therefore, 24 Plaintiff’s claim under 12 C.F.R. § 1024.41 should be dismissed with prejudice. See 25 Homsy, 2013 WL 2422781, at *5. Even if Plaintiff did oppose this portion of Defendant’s 26 motion to dismiss, Plaintiff’s claims still fail on the merits as discussed below. 27 5 The language in California Civil Code section 2923.6(c) is similar to the language 28 Defendant quotes, but is not identical. 1 A borrower may enforce the provisions of 12 C.F.R. § 1024.41 pursuant to section 2 6(f) of RESPA, 12 U.S.C. 2605(f). 12 C.F.R. § 1024.41(a); see Mazzone-Urie v. One 3 West Bank FSB, 2024 WL 4894288, at *5-6 (N.D. Cal. Nov. 25, 2024) (analyzing 4 plaintiff’s alleged violations of 12 C.F.R. § 1024.41(g)). Under 12 C.F.R. § 1024.41, if a 5 borrower submits a complete loss mitigation application after a servicer has made the 6 first notice or filing required by applicable law for any judicial or non-judicial foreclosure 7 process, but more than 37 days before a foreclosure sale, a servicer shall not move for a 8 foreclosure judgment or order of sale unless certain requirements are met. 12 C.F.R. 9 § 1024.41(g). These requirements include that the servicer has sent the borrower a 10 notice that the borrower is not eligible for any loss mitigation option and the appeal 11 process is not applicable, the borrower rejects all loss mitigation options offered, or the 12 borrower fails to perform under an agreement on a loss mitigation option. 12 C.F.R. 13 § 1024.41(g)(1)-(3). 14 Here, Plaintiff alleges that she requested a loan modification, and Defendant 15 offered her three options. Compl. § IV.2, 3. She further alleges she received a letter that 16 her application was complete on May 30, 2024. Compl. IV.3. However, Plaintiff has not 17 provided sufficient facts to demonstrate the other requirements under 12 C.F.R. 18 § 1024.41(g). For example, Plaintiff has not alleged that she submitted her complete 19 application more than 37 days before the foreclosure sale. There is also no information 20 provided about whether Plaintiff rejected or accepted the loss mitigation options offered, 21 or if she failed to perform under an agreement on a loss mitigation option. Accordingly, 22 Plaintiff has failed to state a claim under 12 C.F.R. § 1024.41(g) and her claims should 23 be dismissed with prejudice for failure to oppose Defendant’s arguments in their motion 24 to dismiss. 25 3. Breach of Contract 26 a. Legal Standards 27 The elements of a claim for breach of contract are: (1) an existing contract, 28 (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and 1 (4) damages. Oasis W. Realty, LLC v. Goldman, 51 Cal. 4th 811, 821 (2011). 2 b. Analysis 3 Plaintiff alleges that Defendant breached terms of a mortgage contract by failing 4 to follow applicable foreclosure procedures and engaging in robo-signing. Compl. 5 § V.3.A. Defendant argues that Plaintiff has not identified the specific provisions that 6 Defendant allegedly breached. See Def. Mot. at 14. 7 Here, Plaintiff has failed to state a breach of contract claim. Plaintiff has not 8 alleged that she performed under the contract or that her nonperformance was excused. 9 Plaintiff also has not sufficiently alleged that Defendant breached the terms of an 10 existing contract. Plaintiff’s allegations that Defendant failed to follow applicable 11 foreclosure procedures are insufficient to state a claim. Therefore, Plaintiff’s breach of 12 contract claim should be dismissed with leave to amend to the extent she can allege 13 additional facts to support her claim. 14 4. Fair Debt Collection Practices Act 15 Plaintiff alleges that Defendant violated the FDCPA, specifically 15 U.S.C. 16 sections 1692d, 1692e, and 1692f. Compl. § 4.A. Plaintiff alleges Defendant engaged in 17 abusive debt collection practices by foreclosing on Plaintiff’s home and making false 18 threats about Defendant’s “obligation to the modification process.” Id. 19 Defendant argues that Plaintiff does not allege that Defendant is a debt collector. 20 Def. Mot. at 15. To state a claim under the FDCPA, Plaintiff must show: (1) she is a 21 consumer under 15 U.S.C. § 1692a(3); (2) the debt arises out of a transaction entered 22 into for personal purposes; (3) Defendant is a debt collector under 15 U.S.C. § 1692a(6); 23 and (4) Defendant violated a provision of the FDCPA. See Alonso v. Blackstone 24 Financial Group LLC, 962 F. Supp. 2d 1188, 1193-94 (E.D. Cal. 2013). 25 The Court agrees with Defendant. Plaintiff does not sufficiently allege that 26 Defendant is a debt collector under the FDCPA. See 15 U.S.C. § 1692a(6). Plaintiff 27 makes no allegations in the Complaint regarding whether Defendant is a debt collector. 28 See Compl. Accordingly, Plaintiff has failed to state a valid FDCPA claim against 1 Defendant. 2 Also, Plaintiff fails to state a FDCPA claim under any of her specific causes of 3 action. First, Plaintiff alleges that Defendant “engaged in conduct that harassed, 4 oppressed, or abused Plaintiff through threats and improper communications” in violation 5 of 15 U.S.C. § 1692d. Compl. § V.4.A. 6 The Complaint does not sufficiently state a claim for relief under 15 U.S.C. 7 § 1692d because without further facts, it is not clear to the Court how Defendant’s 8 behavior amounts to abusive, harassing, and/or oppressive conduct as required by the 9 FDCPA. See Arteaga v. Asset Acceptance, LLC, 733 F. Supp. 2d 1218, 1227 (E.D. Cal. 10 2010) (“Although there is no bright-line rule, certain conduct generally is found to either 11 constitute harassment, or raise an issue of fact as to whether the conduct constitutes 12 harassment, while other conduct fails to establish harassment as a matter of law.”). 13 Second, Plaintiff alleges Defendant “made false or misleading representations in the 14 course of attempting to collect the debt,” violating 15 U.S.C. § 1692e. Compl. § V.4.A. 15 The Complaint does not sufficiently state a claim for relief under 15 U.S.C. § 1692e 16 because Plaintiff only provides conclusory allegations that Defendant made false or 17 misleading representations and does not provide sufficiently specific facts to support her 18 claim. See Compl. Finally, Plaintiff alleges Defendant “employed unfair or 19 unconscionable means to collect a debt, including using falsified or incomplete 20 documentation, such as robo-signed foreclosure documents, to support debt collection 21 activities” in violation of 15 U.S.C. § 1692f. The Complaint does not sufficiently state a 22 claim for relief under 15 U.S.C. § 1692f because it is not clear to the Court how these 23 actions support that Defendant as a “debt collector” used “unfair or unconscionable 24 means to collect or attempt to collect any debt” as stated by 15 U.S.C. § 1692f. Further, 25 Plaintiff only provides conclusory statements and does not support her allegations with 26 sufficiently specific facts to state a claim. See Paulsen, 559 F.3d at 1071. Based on the 27 above, the Court finds Plaintiff has failed to state a claim under the FDCPA and 28 recommends that Plaintiff’s FDCPA claims be dismissed with leave to amend. 1 5. Fraudulent Misrepresentation 2 Plaintiff brings a claim against Defendant for fraudulent misrepresentation, 3 alleging Defendant relied on robo-signed foreclosure documents, and failed to review the 4 validity of the foreclosure itself. Compl. V.5.A. 5 a. Legal Standards 6 A claim of fraud “must state with particularity the circumstances constituting 7 fraud.” Fed. R. Civ. P. 9(b). To plead fraud with the particularity required by Rule 9(b), a 8 complaint “must identify the who, what, when, where, and how of the misconduct 9 charged, as well as what is false or misleading about the purportedly fraudulent 10 statement, and why it is false.” Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 964 (9th 11 Cir. 2018) (citation omitted). When the defendant is an entity, a complaint generally must 12 also identify the person who made the false representations on behalf of the entity. See 13 White v. J.P. Morgan Chase, Inc., 167 F.Supp.3d 1108, 1115 (E.D. Cal. 2016). 14 The elements of a fraudulent misrepresentation claim are (1) “the defendant 15 represented to the plaintiff that an important fact was true”; (2) “that representation was 16 false”; (3) “the defendant knew that the representation was false when the defendant 17 made it, or the defendant made the representation recklessly and without regard for its 18 truth”; (4) “the defendant intended that the plaintiff rely on the representation”; (5) “the 19 plaintiff reasonably relied on the representation”; (6) “the plaintiff was harmed”; and 20 (7) “the plaintiff’s reliance on the defendant’s representation was a substantial factor in 21 causing that harm to the plaintiff.” Broge v. ALN Int’l, Inc., 2018 WL 2197524, at *4 (N.D. 22 Cal. May 14, 2018) (citing Graham v. Bank of Am., N.A., 226 Cal. App. 4th 594, 605-06 23 (2014)). 24 b. Analysis 25 Here, Plaintiff fails to state a claim for fraudulent misrepresentation. Plaintiff’s only 26 allegations are that Defendant relied on robo-signed foreclosure documents and failed to 27 review the validity of the foreclosure itself. Compl. § V.5.A. Plaintiff argues that she pled 28 her fraud claim with particularity, claiming she identified allegedly false statements, 1 including misrepresentations regarding the validity and timing of foreclosure, the impact 2 of the false statements on Plaintiff inducing Plaintiff not to take legal action sooner, and 3 damage in the form of loss of her home. Pl. Opp’n at 4. 4 Plaintiff has not sufficiently alleged that Defendant made a false representation 5 that an important fact was true, that Defendant knew about the misrepresentation, or that 6 Defendant intended for Plaintiff to rely on the misrepresentation. See Broge, 2018 WL 7 2197524, at *4. Further, Plaintiff has not alleged who made the false statements or 8 provided details about what the false statements were. Accordingly, Plaintiff has failed to 9 state a fraudulent misrepresentation claim, and this claim should be dismissed with leave 10 to amend. 11 C. Joinder Under Rule 12(b)(7) 12 Defendant argues that Plaintiff has failed to name an indispensable party and the 13 Complaint should be dismissed. Def. Mot. at 17. Defendant states Plaintiff has not 14 named the purchaser of the property as a defendant, and her requested relief includes 15 “injunctive relief to rescind the foreclosure sale and protect Plaintiff’s property rights.” Id. 16 Here, Defendant has not met its burden to show that Plaintiff has not named an 17 indispensable party. See Biagro Western Sales, 160 F. Supp. 2d at 1141. Defendant 18 alleges that an “unknow third party” purchased the property, and any judgment 19 cancelling the recorded foreclosure documents “will naturally affect the rights and 20 obligations of this third party.” Def. Mot. at 17. However, Defendant has not named this 21 third party or provided details demonstrating that this third party is indispensable. 22 Accordingly, the Court recommends DENYING Defendant’s motion on this ground 23 without prejudice. 24 D. Leave to Amend 25 If the court finds that a complaint should be dismissed for failure to state a claim, it 26 has discretion to dismiss with or without leave to amend. Lopez v. Smith, 203 F.3d 1122, 27 1126-30 (9th Cir. 2000). Leave to amend should be granted if it appears possible that 28 the defects in the complaint could be corrected, especially if a plaintiff is pro se. Id. at 1 1130-31; see also Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (“A pro se 2 litigant must be given leave to amend his or her complaint, and some notice of its 3 deficiencies, unless it is absolutely clear that the deficiencies of the complaint could not 4 be cured by amendment.”) (citation omitted). However, if, after careful consideration, it is 5 clear that a complaint cannot be cured by amendment, the court may dismiss without 6 leave to amend. Cato, 70 F.3d at 1105-06. 7 As described above, the California Homeowner Bill of Rights claim and the claim 8 under 12 C.F.R. § 1024.41 (first claims) against Defendant cannot be cured by 9 amendment. These claims, therefore, should be dismissed without leave to amend. 10 Though it seems unlikely that Plaintiff can cure the defects as to her remaining 11 claims, because Plaintiff is pro se, leave to amend should be granted as to the following 12 claims only: the RESPA claim (second claim); the breach of contract claim (third claim); 13 the FDCPA claim (fourth claim); and the fraudulent misrepresentation claim (fifth claim). 14 See Cato, 70 F.3d at 1106. 15 If Plaintiff elects to file an amended complaint, this new pleading shall be limited 16 to the RESPA claim under 12 U.S.C. § 2605(e) (second claim); the breach of contract 17 claim (third claim); the FDCPA claim (fourth claim); and the fraudulent misrepresentation 18 claim (fifth claim) only. Plaintiff is granted leave to amend her complaint to the extent she 19 can allege facts that sufficiently plead her claims. The allegations of the complaint must 20 be set forth in sequentially numbered paragraphs, with each paragraph number being 21 one greater than the one before, each paragraph having its own number, and no 22 paragraph number being repeated anywhere in the complaint. Each paragraph should 23 be limited “to a single set of circumstances” where possible. See Fed. R. Civ. P. 10(b). 24 Forms are available to help plaintiff organize his complaint in the proper way. They are 25 available at the Clerk's Office, 501 I Street, 4th Floor (Rm. 4-200), Sacramento, CA 26 95814, or online at www.uscourts.gov/forms/pro-se-forms. 27 The amended complaint must not require the Court and the defendant to guess at 28 what is being alleged against whom. See McHenry v. Renne, 84 F.3d 1172, 1177 (9th 1 Cir. 1996) (affirming dismissal of a complaint where the district court was “literally 2 guessing as to what facts support the legal claims being asserted against certain 3 defendants”). The amended complaint must not require the Court to spend its time 4 “preparing the ‘short and plain statement’ which Rule 8 obligated plaintiff[] to submit.” Id. 5 at 1180. The amended complaint must not require the Court and defendants to prepare 6 lengthy outlines “to determine who is being sued for what.” Id. at 1179. 7 Plaintiff is informed that the court cannot refer to a prior complaint or other filing in 8 order to make the amended complaint complete. Local Rule 220 requires that an 9 amended complaint be complete in itself without reference to any prior pleading. As a 10 general rule, an amended complaint supersedes prior complaint(s), and once the 11 amended complaint is filed and served, any previous complaint no longer serves any 12 function in the case. Lacey v. Maricopa Cnty., 693 F.3d 896, 927 (9th Cir. 2012). 13 IV. PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS AND E-FILE 14 Plaintiff has filed a motion to proceed in forma pauperis (“IFP”) and to e-file 15 documents. (ECF No. 11.) Defendant Freedom Mortgage Corporation has not 16 responded to the e-filing request. See Docket. 17 Plaintiff requests to proceed IFP because she is currently unemployed and has no 18 income, and is unable to pay the required court fees and costs. Id. at 2. Defendant 19 removed this action to this Court, therefore Plaintiff was not required to pay a filing fee. 20 Accordingly, Plaintiff’s motion to proceed IFP should be DENIED as moot. 21 Plaintiff also requests permission to e-file documents and states she will comply 22 with any applicable rules and procedures. Id. at 3. The Local Rules are clear that “any 23 person appearing pro se may not utilize electronic filing except with the permission of the 24 assigned Judge or Magistrate Judge.” See Local Rule 133(b)(2). Plaintiff’s motion for 25 electronic case filing does not provide good cause for deviance from this Local Rule. 26 Thus, Plaintiff’s motion to e-file is denied with respect to utilizing the CM/ECF system to 27 file documents. Plaintiff will continue to file paper documents with the Court through 28 conventional means. The motion is granted, however, with respect to electronic service 1 of documents. The Clerk of the Court is directed to configure Plaintiff’s account so that 2 Plaintiff will receive email notifications when documents are filed in the case. Plaintiff 3 therefore consents to receive service of documents electronically and waives the right to 4 receive service by first class mail pursuant to Federal Rule of Civil Procedure 5(b)(2)(D). 5 V. CONCLUSION 6 In conclusion, IT IS HEREBY ORDERED that Plaintiff’s motion to e-file (ECF No. 7 11) is GRANTED in part and DENIED in part. The Clerk of the Court is directed to 8 configure Plaintiff’s account so that plaintiff will receive immediate email notifications 9 when documents are filed in the case. 10 Further, based upon the findings above, it is RECOMMENDED that: 11 1. Defendant’s motion to dismiss (ECF No. 5) be GRANTED in part and 12 DENIED in part; and 13 2. Plaintiff be granted twenty-one (21) days from any order adopting these 14 findings and recommendations to file an amended complaint limited to the 15 RESPA claim under 12 U.S.C. § 2605(e) (second claim); the breach of 16 contract claim (third claim); the FDCPA claim (fourth claim); and the 17 fraudulent misrepresentation claim (fifth claim). Failure to timely file an 18 amended complaint will result in a recommendation that this action be 19 dismissed. 20 These findings and recommendations are submitted to the United States District 21 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 22 14 days after being served with these findings and recommendations, any party may file 23 written objections with the Court and serve a copy on all parties. This document should 24 be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any 25 reply to the objections shall be served on all parties and filed with the Court within 14 26 days after service of the objections. Failure to file objections within the specified time 27 may waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 28 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 1 | Dated: August 18, 2025 4 - S . 2 tN L— 3 UNITED STATES MAGISTRATE JUDGE 4 | 5, bern.0511.25 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21