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Case No. 17-CV-00021-LHK 

ORDER GRANTING UNOPPOSED MOTION FOR LEAVE TO FILE A FIRST AMENDED COMPLAINT

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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

CESAR GALINDO, ET AL.,

Plaintiffs,

v.

BSI FINANCIAL SERVICES, INC.,

Defendant.

Case No. 17-CV-00021-LHK 

ORDER GRANTING UNOPPOSED 

MOTION FOR LEAVE TO FILE A 

FIRST AMENDED COMPLAINT

Re: Dkt. No. 26

Plaintiffs Cesar Galindo (“Galindo”) and Maria Rivera (“Rivera”) (collectively, 

“Plaintiffs”), bring suit against Defendant BSI Financial Services, Inc. (“BSI”) for negligence, 

violation of the implied covenant of good faith and fair dealing, violation of California Civil Code 

§ 2923.6(c), and violation of California’s Unfair Competition Law (“UCL”). Currently before the 

Court is Plaintiffs’ motion for leave to file a First Amended Complaint (“FAC”), which seeks 

leave to add Ocwen Loan Servicing LLC (“Ocwen”) as a defendant. ECF No. 26 (“Mot.”). BSI 

does not oppose the motion. ECF No. 28. The Court finds this matter suitable for resolution 

without oral argument and accordingly VACATES the motion hearing set for June 1, 2017, at 1:30 

p.m. See Civil L.R. 7-1(b). Having considered the parties’ submissions, the relevant law, and the 

record in this case, the Court hereby GRANTS Plaintiffs’ motion for leave to amend. 

I. BACKGROUND
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Case No. 17-CV-00021-LHK 

ORDER GRANTING UNOPPOSED MOTION FOR LEAVE TO FILE A FIRST AMENDED COMPLAINT

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A. Factual Background

On September 26, 2006, Galindo borrowed $436,000 from Bank of America, N.A. 

(“BOA”), secured by a deed of trust encumbering property located at 3146 Barletta Lane in San 

Jose, CA (hereinafter, “the Property”). ECF No. 1 (“Compl.”), Ex. 1. Plaintiffs defaulted on the 

loan on March 1, 2009. 

On September 1, 2012, Ocwen acquired from BOA the servicing rights for Plaintiffs’ loan. 

Compl., Ex. 2. On January 23, 2014, Ocwen recorded a Notice of Default and Election to Sell 

under Deed of Trust against the Property. Plaintiffs “began applying for a [Home Affordable 

Modification Program (“HAMP”)] loan modification.” Id. ¶ 14. In 2015, “after years of 

applications [for home loan modifications] that resulted in bad faith denials, Plaintiffs’ filed an 

administrative complaint” with Ocwen. Compl. ¶ 14–15. 

On May 29, 2015, Plaintiffs received a letter from Ocwen in response to Plaintiffs’ 

administrative complaint. Id. Ex. 2. Ocwen informed Plaintiffs that Plaintiffs had been approved 

for a Trial Period Plan (“TPP”) Offer on September 14, 2012, but Ocwen ultimately denied 

Plaintiffs a loan modification on December 13, 2012 because Plaintiffs failed to make the TPP 

payments. See id. Further, Ocwen had approved Plaintiffs “for a Proprietary Modification” on 

December 14, 2014, but Plaintiff failed to make the initial payments by the due date and 

accordingly Ocwen denied Plaintiff a Proprietary Modification on February 11, 2015. See id. 

Ocwen’s May 29, 2015 letter to Plaintiffs also informed Plaintiffs that Ocwen received “[a] 

second HAMP request” from Plaintiffs on April 8, 2015.” Id. However, Ocwen again denied 

Plaintiffs a HAMP modification “because the owner of the account either does not allow principal 

reduction or does not participate in the HAMP” program. Id. 

In or about September 2015, BSI acquired from Ocwen the servicing rights to Plaintiffs’ 

loan. Thereafter, Plaintiffs sent a loan modification request to BSI. Id. ¶ 18. On September 22, 

2015, Galindo emailed documents to Daniel McAteer (“McAteer”), senior loss mitigation 

specialist for BSI. Id. Ex. 3. On September 23, 2015, McAteer replied to Galindo and told 

Galindo that he would “forward these [documents to] our Loan Processor to review to determine if 
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Case No. 17-CV-00021-LHK 

ORDER GRANTING UNOPPOSED MOTION FOR LEAVE TO FILE A FIRST AMENDED COMPLAINT

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any additional documentation is needed.” Id. 

On September 28, 2015, BSI filed a Notice of Trustee’s Sale (hereinafter, “Notice of 

Sale”) with the Santa Clara County Recorder’s Office. Compl. ¶ 20. The Notice of Sale 

scheduled sale for October 30, 2015. Id. Plaintiff alleges that at the time that BSI recorded the 

Notice of Sale on September 28, 2015, “[n]o decision had been made on Plaintiffs’ loan 

modification application.” Id. 

Galindo emailed McAteer again on October 6, 2017 and told McAteer that Galindo was 

“re sending the Email” that Galindo originally sent to McAteer on September 22, 2015. Id., Ex. 3. 

On October 7, 2015, McAteer emailed Galindo and informed Galindo that “[p]er the letter 

provided out to you via FedEx (tracking#774579202934) and delivered [September 24, 2015] the 

following items are still needed: [1] July to August Bank Statements” and “[2] 2013 & 2014 Tax 

Returns (signed).” Id. McAteer informed Galindo that he had “re-reviewed the items provided” 

by Galindo and that the documents did “NOT include[]” Galindo’s July to August bank statements 

or signed 2013 and 2014 tax returns. Id. 

B. Procedural History

On January 4, 2017, Plaintiffs filed suit against BSI in this Court. ECF No. 1. Plaintiffs 

alleged four causes of action against BSI: (1) negligence; (2) breach of the implied covenant of 

good faith and fair dealing; (3) violation of California Civil Code Section 2923.6(c); and (4) 

violation of the UCL. See id.

On January 26, 2017, BSI moved to dismiss all four causes of action. See Def. Mot. On 

February 2, 2017, Plaintiffs opposed BSI’s motion to dismiss. ECF No. 14 (“Pl. Opp.”). On 

February 9, 2017, BSI filed a Reply. ECF No. 15 (“Reply”). 

On March 17, 2017, the Court granted BSI’s motion to dismiss. ECF No. 23. As relevant 

here, the Court held that Plaintiffs had failed to state a claim for negligence against BSI because 

Plaintiffs based their negligence claim, in part, on conduct that was committed by Ocwen, not BSI. 

Id. at 10–11. The Court held that Plaintiff had failed to allege that BSI had assumed Ocwen’s 

liabilities, and thus BSI could not be held liable for Ocwen’s alleged misconduct. Id. at 10–11. 
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Case No. 17-CV-00021-LHK 

ORDER GRANTING UNOPPOSED MOTION FOR LEAVE TO FILE A FIRST AMENDED COMPLAINT

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For similar reasons, the Court held that Plaintiffs could not state a claim for implied covenant of 

good faith and fair dealing against BSI for Ocwen’s conduct. Id. at 14. The Court granted 

Plaintiffs leave to amend the complaint within thirty days, but stated that Plaintiffs “may not add 

new causes of action or parties without leave of the Court or stipulation of the parties pursuant to 

Federal Rules of Civil Procedure 15.” Id. at 17.

On April 13, 2017—within the 30-day deadline set by the Court for Plaintiffs to file an 

amended complaint—Plaintiffs filed a motion for leave to file a First Amended Complaint. See 

Mot. Specifically, Plaintiffs requested leave of Court to add Ocwen as a defendant. According to 

Plaintiffs, Plaintiffs “learned that Ocwen is the primary defendant because BSI is a separate entity 

from Ocwen, and BSI did not assume Ocwen’s liabilities when BSI purchased Ocwen’s assets.” 

Mot. at 4–6. Plaintiffs state that leave to add Ocwen as a defendant is necessary to support 

Plaintiff’s previously asserted claims, which this Court dismissed as brought against BSI. See Id.

at 4–6.

On April 25, 2017, BSI filed a statement of non-opposition to Plaintiffs’ motion. See ECF 

No. 28. 

II. DISCUSSION

Pursuant to Federal Rule of Civil Procedure 15(a), a party may amend its pleading once as 

a matter of course within 21 days of serving it. Fed. R. Civ. P. 15(a)(1). After that initial period 

has passed, amendment is permitted only with the opposing party’s written consent or leave of 

Court. Id. 15(a)(2). Rule 15 instructs that “[t]he court should freely give leave when justice so 

requires.” Id. Although this rule “should be interpreted with extreme liberality, leave to amend is 

not to be granted automatically.” Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990) 

(internal citation and quotation marks omitted). Courts commonly consider four factors when 

determining whether to grant leave to amend: (1) bad faith on the part of the movant; (2) undue 

delay; (3) prejudice to the opposing party; and (4) futility of the proposed amendment. Foman v. 

Davis, 371 U.S. 178, 182 (1962); Lockheed Martin Corp. v. Network Solus., Inc., 194 F.3d 980, 

986 (9th Cir. 1999). Of these factors, prejudice to the opposing party is the most important. 
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Case No. 17-CV-00021-LHK 

ORDER GRANTING UNOPPOSED MOTION FOR LEAVE TO FILE A FIRST AMENDED COMPLAINT

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Jackson, 902 F.2d at 1387. In addition, a court may also consider whether the plaintiff has 

previously amended his complaint. DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 n. 3 (9th 

Cir. 1987). Where a court has already provided the plaintiff one or more opportunities to amend 

his complaint, its discretion over further amendments is particularly broad. Id. 

The Court finds that granting leave to amend is appropriate in this case. This is Plaintiffs’ 

first request to file an amended complaint, and there is no allegation that Plaintiffs are acting in

bad faith or that Plaintiffs have unduly delayed. Plaintiffs request for leave to add Ocwen as a 

defendant is made within the 30-day deadline provided by the Court in the Court’s March 17, 

2017 order, which dismissed Plaintiff’s original complaint with leave to amend. See ECF No. 23. 

Further, there is no reason to believe that amendment is futile. The Court dismissed Plaintiffs’ 

original complaint, in part, because Plaintiffs brought claims against only BSI for conduct that was 

committed by Ocwen. Plaintiffs’ request for leave to add Ocwen as a defendant is a response to 

the Court’s order. See id., at 10–11. 

Finally, Plaintiffs’ amendment will not prejudice BSI. BSI has not opposed this motion,

and this case is still in its early stages. The initial case management conference is scheduled for 

June 7, 2017, and the Court has yet to set a case schedule. Accordingly, the Court GRANTS 

Plaintiffs’ motion for leave to amend. See Adams v. Kraft, 2010 WL 4939440, at *4 (N.D. Cal. 

Nov. 30, 2010) (granting leave to amend, even though “Plaintiff could have amended his 

complaint earlier,” because the case was still in its early stages and it was the plaintiff’s first 

attempt at amending his complaint). 

IV. CONCLUSION

For the reasons discussed above, the Court GRANTS Plaintiffs’ motion for leave to file the 

proposed FAC.

IT IS SO ORDERED.

Dated: May 26, 2017

______________________________________

LUCY H. KOH

United States District Judge