Johnson v. Lafayette Capital Group, Inc. et al

OCR transcription for search; preserved printed pages are authoritative

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For The Northern District Of California

UNITED STATES BANKRUPTCY COURT

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Entered on Docket
November 09, 2010

GLORIA L. FRANKLIN, CLERK
U.S BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA

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NORTHERN DISTRICT OF CALIFORNIA

Tn re ] Case No. 09-52288-ASW
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JOSEPH JOHNSON, ]
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Debtor. ]
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JOSEPH JOHNSON, ] Adv. No. 09-5107
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Plaintiff, ]
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VS. ]
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LAFAYETTE CAPITAL GROUP, INC., ]
and DOES 100 ]
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Defendants. ]
]

MEMORANDUM DECISION RE
MOTION TO DISMISS AND STRIKE PLAINTIFF’S SECOND AMENDED COMPLAINT

Before the Court is the motion to dismiss and strike the
second amended complaint (*Motion”) filed by defendant Lafayette
Capital Group (“Defendant”) in the adversary proceeding brought by
plaintiff and debtor Joseph Johnson (*Plaintiff”) against
Defendant. Plaintiff opposes the motion, or alternatively requests
leave to amend.

Plaintiff is representing himself in propria persona.

Defendant is represented by Dennis D. Miller, Esq. of Stein &

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MOTION TO DISMISS, ETC. 15

For The Northern District Of California

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Lubin. A hearing on the Motion was held on October 26, 2010. The
Court has reviewed the papers filed in support of and in opposition
to the Motion, and heard the arguments of counsel at the hearing.
This Memorandum Decision constitutes the Court’s findings of fact
and conclusions of law, pursuant to Rule 7052 of the Federal Rules
of Bankruptcy Procedure.
I.
PACTS

On January 12, 2005, Plaintiff and Plaintiff’s wife, who is
not a co-debtor in Plaintiff’s bankruptcy case, signed a note in
the amount of $340,000 with a 14% interest rate and a balloon
payment due after two years. The note was secured by a second deed
of trust on Plaintiff’s principal residence at 6042 La Spezia
Place, San Jose, California. This note and deed of trust are
hereafter referred to as the “2005 loan.” On April 2, 2007, in
settlement and release of all claims for alleged violations of the
Home Ownership and Equity Protection Act (*“HOEPA”), the Truth in
Lending Act (“TILA”), and other related claims in connection with
the making of the 2005 loan, the parties entered into a new note
secured by a deed of trust on Plaintiff's residence (the *2007
loan”) to refinance the 2005 loan. On April 18, 2007, the parties
entered into an Amended and Restated Release of All Claims (the
“Release”). The 2007 loan advanced to Plaintiff and Plaintiff's
wife the sum of $60,000, and the new note was made in the amount of
$400,000 with 10% interest only payments and a balloon payment due
after two years. On October 15, 2007, a notice of default was
recorded against Plaintiff's residence. On March 31, 2009,

Plaintiff filed a Chapter 13 bankruptcy petition.

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On April 24, 2009, Plaintiff filed a complaint alleging
(1) violations of TILA, HOEPA, which amends TILA and offers further
protections for high rate mortgages, Regulation 2, which implements
TILA and HOEPA, and the FTC Act; (2) seeking injunctive relief; and
(3) fraud and/or mistake in breach of fiduciary obligations. The
Court dismissed all of Plaintiff’s claims based on the 2005 note.
The Court dismissed certain claims regarding the 2007 note, but
dismissed some of those claims with leave to amend.

On March 12, 2010, Plaintiff filed a first amended complaint
alleging (1) violations of TILA, HOEPA and Regulation 2, which
implements TILA and HOEPA; (2) fraud and/or mistake and breach of
fiduciary obligations; and (3) Plaintiff asks the Court to value
the secured claim under Rule 3012 of the Federal Rules of
Bankruptcy Procedure and 11 U.S.C. section 506 (a) and (d).
Defendant asserts that the second amended complaint is almost
identical to the dismissed first amended complaint and suffers from
the same defects.

IT.

STANDARD OF REVIEW

The Ninth Circuit has stated that the standard of review for
motions to dismiss is as follows:

The nature of dismissal requires us to accept all allegations
of fact in the complaint as true and construe them in the
light most favorable to the plaintiffs. However we are not
required to accept as true conclusory allegations which are
contradicted by documents referred to in the complaint, and we

do not. . . necessarily assume the truth of legal conclusions
merely because they are cast in the form of factual
allegations.
Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th
Cir. 2003) (citations and internal quotations omitted).

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Further, the Ninth Circuit has held that “dismissal without
leave to amend is improper unless it is clear, upon de novo review,
that the complaint could not be saved by any amendment.” Steckman

v. Hart Brewing, Inc., 143 F.3d 1293, 1296 (9th Cir. 1998)

(citations and internal quotations omitted).
Iitl.
ANALYSIS
Plaintiff continues to allege claims arising from the 2005

loan even though the Court’s Order of February 16, 2010 stated that
“fajny and all of Plaintiff's claims based on the 2005 Promissory
Note Secured by Deed of Trust and the 2005 Deed of Trust are
dismissed as Plaintiff has released all such claims.” Order
Granting in Part and Denying in Part Motion to Dismiss { 2
(February 16, 2010). Accordingly, those claims have been
dismissed, and the Court only addresses the claims regarding the
2007 Loan.

Defendant asserts that facts from Plaintiff's opposition and
declaration may not be regarded as part of Plaintiff’s complaint.

Schneider v. California Dept. of Corrections, 151 F.3d 1194, 1197

(9th Cir. 1998). The Court is not relying on facts stated in
Plaintiff's opposition nor Plaintiff's declaration, so there is no
need to strike the papers.

A. First Cause of Action for Violation of TILA, HOEPA, and

Regulation Z

At the April 29, 2010 hearing on Defendant’s motion to dismiss
Plaintiff's first amended complaint, the Court dismissed the first
cause of action because Plaintiff combined several causes of action

into one. The Court instructed Plaintiff to plead claims under

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HOEPA and TILA separately, with the corresponding elements and
supporting facts for each. Plaintiff has not amended the first
cause of action substantively, but has pled violations of TILA and
HOEPA separately as follows.

1. HOEPA Violations

Regarding the 2007 loan, the second amended complaint alleges
that in offering and making the loan, Defendant violated the
requirements of HOEPA by including prohibited loan terms,
including: (1) a prepayment penalty; and (2) a balloon payment term
of less than five years. In addition, the second amended complaint
alleges that Defendant improperly engaged in a pattern or practice
of extending credit to consumers, such as Plaintiff, based on the
value of the collateral rather than the consumer’s current ability
to repay on the obligation.

Defendant argues that Plaintiff's claim for alleged violations
of HOEPA, as well as TILA, cannot stand as a matter of law because
the 2007 loan was a business loan that is not subject to the
provisions of HOEPA or TILA. HOEPA and TILA expressly do not apply
to extensions of credit primarily for business or commercial
purpose. 15 U.S.C. §§ 1602(aa) (1), 1603(1), 12 C.F.R. § 226.3. As
part of the 2007 loan, Plaintiff and Plaintiff's wife signed a
certificate of business purpose of loan (the “certificate”) which
in relevant part represented to Defendant that “[nlo part of the
Loan proceeds are intended to be used for a nonbusiness (i.e.,
personal, consumer, household or family) purpose.” (Def.’s Mem. of
P. & A. Ex. B at 4-5.) However, the certificate also included the
following certification: “the exclusive purpose of the Loan is to

finance the business enterprise known as: " with a

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line for the name or purpose of the business left blank. (Def.’s
Mem. of P. & A. Ex. B at 4-5.) Plaintiff alleges that the 2007
loan was a consumer loan.

In determining whether a loan transaction is consumer or
commercial in nature, and thus whether relevant disclosures should
have been made, the court must examine the facts of the case to

determine the primary purpose of the loan. See Semar v. Platte

Valley Fed. Sav. & Loan Assin, 791 f£.2d 699, 703-04 n.11 (9th Cir.

1986). There is a serious question of fact as to whether the 2007
loan was in fact a business loan.

2. TILA Violations

With respect to the alleged TILA disclosure violations, the
second amended complaint alleges that Defendants failed to make
TILA disclosures in writing before the consummation of the 2007
loan, including: (1) certain notices in writing; (2) the annual
percentage rate; (3) the regular payment amount; and (4) material
credit information. The second amended complaint also asserts that
Defendant violated TILA by failing to disclose, or accurately
disclose: (1) the identity of the creditor; (2) the amount
financed; (3) the finance charge; (4) the annual percentage rate;
(5) the payment schedule; (6) the total of payments; (7) any
prepayment penalties; (8) any late payment charges; (9) the
acquisition of a security interest by lender in Debtor’s principal
dwelling; and (10) material credit information. The second amended
complaint alleges that Defendant made consumer credit disclosures
that do not reflect the terms of the legal obligation between the
parties. Plaintiff asserts that rescission is appropriate because

Defendant also failed to deliver the required notice of right to

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cancel to Debtor.

As the Court has discussed, the disclosure requirements of
TILA apply only to consumer credit transactions, and do not apply
to loans for business purposes. Plaintiff alleges that the loan is
a consumer loan, and there is at least a factual question as to
whether Plaintiff and Defendant entered into a consumer credit
transaction.

3. Monetary Damages

Defendant asserts that Plaintiff's claims for monetary damages
for any violation of HOEPA and TILA are barred by the one-year
statute of limitations under 15 U.S.C. section 1640(e), which
requires that such an action proceed “within one year from the date

of the occurrence of the violation.” See Alvara v. Aurora Loan

Services, Inc., No. C-09-1512, 2009 WL 1689640, at *5 (N.D. Cal.

June 16, 2009). The Ninth Circuit has noted that, in the TILA
context, the failure to make required disclosures occurs, if at
all, at the time the loan documents were signed. Meyer v.

Amerigquest Mortgage Co., 342 F.3d 899, 902 (9th Cir. 2003).

Defendant asserts that the parties entered into the subject loan in
April 2007, but Plaintiff filed the instant action in 2009, past
the one-year statute of limitations.

Pursuant to 15 U.S.c. § 1640(e), except as otherwise provided
by state law, a claim for recoupment or set-off in an action under
TILA is not barred by the one-year statute of limitations where the
claim is asserted as a matter of defense. Plaintiff asserts that
Plaintiff is entitled to recoup or set-off the monetary damages
against the proof of claim filed by Defendant for the secured

amount of $510,783.20. Where a creditor has filed a proof of claim

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to collect a debt arising from the same transaction, recoupment and
set-off are defensive claims not barred by the statute of

limitations so long as the main action is timely. In re Coxson, 43

F.3d 189 (5th Cir. 1995). As the Court stated at the April 29,
2010 hearing on Defendant’s motion to dismiss Plaintiff’s first
amended complaint, Plaintiff has three years from the filing of the
proof of claim to allege recoupment and set-off. Therefore,
Plaintiff is entitled to seek monetary damages under TILA in the
form of recoupment or setoff against Defendant's proof of claim.

4. Rescission

Plaintiff seeks rescission of the loan transaction under 15
U.S.C. section 1635. Generally, a borrower has three business days
following the latter of the consummation of the transaction secured
by the borrower's residence or the delivery of the required notices
and disclosures to rescind without penalty. However, a borrower’s
right to rescind may be extended by up to three years after
consummation of the transaction if a lender fails to comply with
TILA’ s disclosure requirements. 12 C.F.R. § 226.15(a) (3). To
exercise the right to rescind, the borrower must notify the
creditor of the rescission by mail or other writing. 12 C.F.R,
§ 226.15(a) (2). The second amended complaint alleges that
Defendant failed to deliver to Plaintiff a completed notice of
right to cancel. Plaintiff alleges that Plaintiff provided
Defendant with notice of Plaintiff’s desire to rescind the 2007
loan agreement.

Defendant asserts that Plaintiff failed to tender the value of

the property in order to seek rescission. In Yamamoto v. Bank of

New York, 339 F.3d 1167, 1173 (9th Cir. 2003), the Ninth Circuit

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explained that prior to ordering rescission based upon a lender’s
alleged TILA violation, a court may require a borrower to prove an
ability to tender the loan proceeds. However, “[s]uch a decision
lies within the court's equitable discretion, taking into
consideration all the circumstances including the nature of the
violations and the borrower's ability to repay the proceeds.’
Yamamoto, 339 F.3d at 1173. Defendant fails to cite any authority
demonstrating that a party seeking rescission under TILA is
required to demonstrate tender or his or her ability to tender

conclusively in a complaint. In Mangindin v. Washington Mutual

Bank, No. C 09-01268 2009 WL 1766601, at *3-4 (N.D. Cal. June 18,
2009) (J. Ware), the borrowers were only required to allege that
they attempted to tender, or were capable of tendering, the value
of the property, or that such equitable circumstances existed that
conditioning rescission on any tender would be inappropriate.
Here, the second amended complaint alleges that Plaintiff has
attempted to tender the value of the property and is “presently
capable” of tendering the value of the property. This conclusion

is unsupported by facts, but is a sufficient allegation according

to Mangindin v. Washington Mutual Bank. Id. Accordingly,
Defendant’s motion to dismiss is denied with respect to Plaintiff’s
first cause of action.

B. Second Cause of Action for Fraud and/or Mistake

Plaintiff's second cause of action alleges that Defendant made
false representations and promises, and failed to disclose or
concealed from Plaintiff certain material facts. Nondisclosure or
concealment may constitute actionable fraud when: (1) the defendant

is in a fiduciary relationship with the plaintiff; (2) the

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defendant had exclusive knowledge of material facts not known to
the plaintiff; (3) the defendant actively conceals a material fact
from the plaintiff; or (4) the defendant makes partial
representations but also suppresses some material fact. Limandri
v. Judkins, 52 Cal. App. 4th 326, 336 (Cal. App. Ct. 1997).

To state a claim for fraud or mistake under Rule 9(b) of the
Federal Rules of Civil Procedure, a party must state with
particularity the circumstances constituting the fraud or mistake.

Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir. 2007). This

includes an account of time, place, and specific content of the
false representations as well as the identities of the parties to

the misrepresentations. Edwards v. Marin Park, Inc., 356 F.3d

1058, 1066 (9th Cir. 2004).

Plaintiff alleges that on or about March 2007, and continuing
thereafter, Steve Ruegg, president of Defendant LCGI, made oral
misrepresentations and false oral promises to Plaintiff. Plaintiff
alleges that:

Steve Ruegg made the following material misrepresentations
to Plaintiff: (i) that upon closing of the 2007 Loan,
Defendant LCGI would cancel the 2005 loan and reconvey the
Deed of Trust for the 2005 loan to Plaintiff, and (11)
that the 2005 loan would be paid off and refinanced by the
2007 loan. Steve Ruegg also concealed material facts from
Plaintiff, and/or failed to disclose material facts to
Plaintiff, and/or suppressed material facts from
Plaintiff.
Pl's Second Amended Compl. {I 35.
Plaintiff further alleges that Defendant intentionally breached
its fiduciary duty to Plaintiff by failing to disclose certain
alleged facts. While a lender may not be allowed to misrepresent

facts, the relationship between a lending institution and its

borrower client is not fiduciary in nature. See Nymark v. Heart

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fab}

Fed. Sav. & Loan Ass'n, 231 Cal. App. 3d 1089, 1093 n.1 (App. Ct.
1991). This is because a commercial lender is free to pursue its
own economic interests, and this right is incompatible with the
obligations of a fiduciary. Nymark, 231 Cal. App. 3d at 1093 n.1.
The second amended complaint fails to allege any facts that
establish a fiduciary duty by Defendant to Plaintiff. The Court
has already dismissed Plaintiff’s claim for intentional breach of
fiduciary duty without leave to amend (Order Granting in Part and
Denying in Part Motion to Dismiss @ 3(e) (July 13, 2010)), and
likewise, this claim is again dismissed without leave to amend.

Nonetheless,

..in transactions which do not involve fiduciary or

confidential relations, a cause of action for

non-disclosure of material facts may arise in at least

three instances: (1) the defendant makes representations

but does not disclose facts which materially qualify the

facts disclosed, or which render his disclosure likely to

mislead; (2) the facts are known or accessible only to

defendant, and defendant knows they are not known to or

reasonably discoverable by the plaintiff; (3) the

defendant actively conceals discovery from the plaintiff.

Warner Constr. Coro. v. L.A., 2 Cal. 3d 285, 294 (Cal. 1970).

Here, Plaintiff alleges that Steve Ruegg promised that Defendant
would void the 2005 loan and reconvey the 2005 deed of trust
knowing that Defendant would not do that, and that Defendant and
Steve Ruegg actively concealed their intent not to perform those
promises.

Defendant asserts that Plaintiff has failed to plead fraud or
mistake with specificity. The Court stated at the April 29, 2010
hearing on Defendant’s motion to dismiss Plaintiff’s first amended
complaint that “[t]he problem [with the second cause of action in

the first amended complaint] is that the language of this is

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terribly drafted to say the exact opposite of what Mr. Johnson says

orally in court.” The Court further stated that the allegation
made orally by Plaintiff at the hearing -- that Steve Ruegg made
the aforementioned misrepresentations -- is not specific as to the

location and day, but the Court would not throw out the cause of
action as articulated by Plaintiff at the hearing, given that the
party is named and discovery would provide Defendant with specific
details as to place and time. The Court dismissed the second cause
of action and directed Plaintiff to draft the cause of action to
reflect accurately the fraud allegation made orally by Plaintiff at
the hearing, which Plaintiff has done.

The Court finds that Plaintiff has at least alleged facts with
regard to the offering and making of the 2007 loan that raise a
factual issue regarding whether certain disclosures were made or
should have been made. Accordingly, Defendants’ motion to dismiss
is denied as to Plaintiff's second cause of action.

Cc. Third Cause of Action for Valuation of Defendant's Secured

Tnterest in the Property

Plaintiff has not made any substantive changes to the third
cause of action. Plaintiff asks the Court to value the deeds of
trust held by Defendant for the purpose of fixing the amount of the
secured and unsecured claims on the property. Plaintiff has
sufficiently pled this cause of action. There is a factual dispute
over the priority of the liens on the property since there is a
question of whether the 2007 loan relates back to the 2005 deed of
trust. In addition, there is a dispute over the value of the
property.

With respect to the third cause of action, Defendant’s motion

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to dismiss is denied.

D. Motion to Strike Punitive Damages

The Court stated in Bureerong v. Uvawas, 922 F.Supp. 1450,

1479, n. 34 (C.D. Cal. 1996), that "[a] motion to strike may be
used to strike any part of the prayer for relief when the damages
sought are not recoverable as a matter of law." Under Civil Code
section 3294, a plaintiff may recover punitive damages where a
defendant has engaged in oppression, fraud, and malice. Here,
Defendant asserts that Plaintiff's claim for punitive damages
should be stricken from the second amended complaint because
Plaintiff failed to allege any facts to show that Defendant acted
with malice, oppression, or fraud. The Court has found that
Plaintiff’s cause of action for fraud is sufficiently pled.
Accordingly, Defendant’s motion to strike Plaintiff's claim for
punitive damages is denied.
Til.
CONCLUSTON
For the reasons stated above, Defendant's motion to dismiss is
granted in part and denied in part. Any claims based on the 2005
loan are dismissed. Notwithstanding the foregoing, Defendant’s
motion to dismiss is denied as to all of Plaintiff's causes of
action, and Defendant’s motion to strike punitive damages is also
denied. Plaintiff shall prepare a form of order consistent with
//
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if
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Ca

this ruling and shall submit the proposed order to the Court after

serving counsel for Defendant.

Dated:

ARTHUR S. WEISSBRODT
UNITED STATES BANKRUPTCY JUDGE

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Court Service List

Joseph Johnson
6042 La Spezia Place
San Jose, CA 95138

Lafayette Capital Group, Inc.
c/o Dennis Miller

600 Montgomery St.

San Francisco, CA 94111

Dennis D. Miller

Law Offices of Stein and Lubin
600 Montgomery St. 14th Fl.
San Francisco, CA 94111

Office of the U.S. Trustee / SJ
U.S. Federal Bldg.

280 S lst St. #268

San Jose, CA 95113-3004

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