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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

MIGUEL AVILA,

Plaintiff,

v.

BANK OF AMERICA, et al.,

Defendants.

Case No. 17-cv-00222-HSG 

ORDER RE MOTIONS TO DISMISS

Re: Dkt. Nos. 32, 35, 39

Pending before the Court are the motions to dismiss filed by Defendants Bank of America, 

N.A., Ocwen Loan Servicing, LLC, Caliber Home Loans, Inc., and U.S. Bank Trust, N.A, 

respectively. The Court finds this matter appropriate for disposition without oral argument and 

the matter is deemed submitted. See Civil L.R. 7-1(b). For the reasons detailed below, the 

motions are GRANTED.

I. ALLEGATIONS

Plaintiff Miguel Avila alleges that in 2008 he purchased a neighbor’s property located at 

36823 Olive Street, Newark, California, 94560 (the “Property”), that was in foreclosure, with the 

intention of assuming the mortgage loan and obtaining possession of and title to the Property. 

Dkt. No. 30 (“FAC”) ¶¶ 13–16. He contacted the then-mortgage owner, Countrywide Home 

Loans, who said that to do so, Plaintiff would have to assume his neighbor’s mortgage on the 

Property or obtain a new one. Id. ¶ 15. Countrywide informed Plaintiff that before he could do 

either, he had to reinstate the mortgage loan. Id. In June 2008, Plaintiff states that he tendered the 

money necessary to reinstate the loan and moved into the Property. Id. ¶ 16. Plaintiff never 

received the assumption or new loan documents from Countrywide, though he paid the monthly 

mortgage payments in the interim. Id. ¶¶ 17–18.

In early 2009, Plaintiff learned that Defendant Bank of America (“BANA”) had taken over 
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the mortgage. Id. ¶ 19. Plaintiff contacted BANA and a representative told him to continue 

making payments and BANA would send the requisite paperwork. Id. ¶¶ 20–21. When months 

went by and Plaintiff did not receive paperwork to either assume or refinance the loan, he 

contacted BANA again, who told him to keep making payments and it would send him the 

paperwork. Id.¶¶ 22–23. At one point, having grown frustrated with the delay, Plaintiff told 

BANA that “he would be getting an attorney to help him remedy the situation.” Id. ¶ 25. 

According to Plaintiff, “almost immediately in response to this” in August 2012, BANA 

transferred servicing of the loan to Defendant Ocwen. Id. ¶ 25. Plaintiff then informed Ocwen 

that he would not wait for it to remedy the loan modification issue and “would seek legal 

representation.” Id. ¶ 27. In response, Ocwen informed Plaintiff that “its records showed the loan 

account had not been paid since 2008.” Id. Thereafter, Ocwen sent Plaintiff’s mortgage payments 

back because they were insufficient to satisfy the outstanding debt. Id.

Servicing of the loan “eventually” transferred to Defendant Caliber, and in October 2015, 

BANA transferred its interest in the Deed of Trust to Defendant U.S. Bank with the help of 

Caliber. Id. ¶¶ 28–29. Around this time, Plaintiff contacted Caliber about applying for a loan 

modification. Id. ¶ 30. Plaintiff provided the requisite loan modification documents, but in late 

November or early December 2015, Caliber said it had never received the application. Id. In 

December 2015, Caliber recorded a Notice of Default on the Property. Id.

II. LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(6), the Court must dismiss a complaint if it 

fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to 

dismiss, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its 

face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This “facial plausibility” standard 

requires the plaintiff to allege facts that add up to “more than a sheer possibility that a defendant 

has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although courts do not 

require “heightened fact pleading of specifics,” Twombly, 550 U.S. at 570, a plaintiff must provide 

“more than labels and conclusions, and a formulaic recitation of the elements of a cause of action 

will not do,” id. at 555. Rather, the plaintiff must allege facts sufficient to “raise a right to relief 
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above the speculative level.” Id. 

III. DISCUSSION

Plaintiff asserts numerous claims against the four Defendants in this action based on his 

inability to assume or refinance the mortgage loan on the Property. The Court addresses the

claims against each Defendant separately.1

A. Bank of America

i. Statute of Limitations (Claims I–III, & VII)

BANA argues that Plaintiff’s fraud, negligent misrepresentation, conversion, and Unlawful 

Competition Law (“UCL”) claims against it are time-barred. The Court agrees. The factual basis 

for all four claims against BANA is that it told Plaintiff he could assume or refinance the loan, that

he should continue making monthly mortgage payments, and BANA accepted those payments 

without sending Plaintiff the requisite paperwork. See FAC ¶¶ 42–50, 65–72, 82–91, 128. 

According to Plaintiff’s complaint, however, BANA transferred servicing of the loan to Ocwen 

“in or around August 2012.” Id. ¶ 26. At that time, Plaintiff still had not received any paperwork, 

despite having made mortgage payments on the Property for several years. Id. ¶¶ 17–18, 20–23. 

Moreover, Ocwen informed Plaintiff that according to its records, the loan had not been paid since 

2008. Id. ¶ 27. 

By then, Plaintiff’s causes of action against BANA had accrued. See Fox v. Ethicon EndoSurgery, Inc., 35 Cal. 4th 797, 806 (Cal. 2005) (“[A] cause of action accrues at the time when the 

cause of action is complete with all of its elements.”) (quotation omitted). Even putting aside 

whether Plaintiff should have been on notice of his claims during the several years in which he 

made monthly mortgage payments but did not receive any paperwork from BANA, Plaintiff was 

undoubtedly put on notice once Ocwen told him that its records showed that the loan had not been 

paid since 2008. FAC ¶¶ 22–26; cf. Fox, 35 Cal. 4th at 807 (“[W]e look to whether the plaintiffs 

have reason to at least suspect that a type of wrongdoing has injured them.”); Norgart v. Upjohn 

 

1 Because the Court does not rely on any of the exhibits attached to the parties’ Requests for

Judicial Notice in its analysis, see Dkt. Nos. 33, 35-1, 40, 43, 45-1, 46-1, the Court DENIES the

requests as moot.
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Co., 21 Cal. 4th 383, 398 (Cal. 1999) (“[A plaintiff] has reason to suspect [wrongdoing] when he 

has notice or information of circumstances to put a reasonable person on inquiry.”) (quotation 

omitted). Yet Plaintiff did not file his initial complaint until December 19, 2016, over four years 

after this correspondence with Ocwen. Dkt. No. 1-1. All four claims are therefore barred by the 

applicable statute of limitations. See Cal. Code Civ. P. § 338(d) (three-year limitation for fraud), 

Cal. Code Civ. Proc., § 339(1) (two-year limitation for negligence and three-year for fraud); Cal. 

Code Civ. Proc., § 338(c) (three-year limitation for conversion); Cal. Bus. & Prof. Code § 17208 

(four-year limitation for UCL violation).

Plaintiff’s contention that the discovery rule, the fraudulent concealment doctrine, and the 

continuous accrual doctrine should toll these statutes of limitations is unavailing. The discovery 

rule “postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, 

the cause of action.” Fox, 35 Cal. 4th at 807. Consequently, “the plaintiff must plead that, despite 

diligent investigation of the circumstances of the injury, he or she could not have reasonably 

discovered facts supporting the cause of action within the applicable statute of limitations period.” 

Id. at 809. Relatedly, under the fraudulent concealment doctrine, “[a] defendant’s fraud in 

concealing a cause of action against him tolls the applicable statute of limitations, but only for that 

period during which the claim is undiscovered by plaintiff or until such time as plaintiff, by the 

exercise of reasonable diligence, should have discovered it.” Bernson v. Browning-Ferris Indus., 

7 Cal. 4th 926, 931 (Cal. 1994) (en banc) (quotation omitted). The continuous accrual doctrine 

does not toll a statute of limitations, but a court will view a “series of wrongs or injuries . . . as 

each triggering its own limitations period, such that a suit for relief may be partially time-barred as 

to older events but timely as to those within the applicable limitations period.” Aryeh v. Canon 

Bus. Sols., Inc., 55 Cal. 4th 1185, 1192 (Cal. 2013).

As discussed above, Plaintiff was put on notice as of August 2012 that the loan had not 

been reassigned and his payments had not been applied to the existing loan. Plaintiff does not 

allege that BANA committed any additional fraudulent or unlawful acts after 2012 that would 

extend the statutes of limitations for these claims. Plaintiff does not allege that he had any further 

correspondence with BANA or that he sent it further mortgage payments following the transfer to 
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Ocwen in August 2012. Cf. FAC ¶ 42 (“For years, between 2008 and 2012, Plaintiff was 

informed by [BANA] representatives that he should continue paying the loan and await the 

assumption or application paperwork . . . .”). Plaintiff states that in August 2012, he began 

sending monthly payments to Ocwen, which returned them as insufficient. FAC ¶ 27. Even if 

BANA had tried to conceal its misrepresentations, Ocwen informed Plaintiff about the state of the 

loan. 

Plaintiff’s suggestion that the continuous accrual doctrine renders BANA’s failure to send 

paperwork to Plaintiff actionable until October 2015 when it transferred its interest in the Deed of 

Trust to U.S. Bank is similarly unpersuasive. BANA’s allegedly wrongful conduct occurred 

between 2008 and 2012 when BANA representatives told Plaintiff to pay the loan and await 

paperwork to assume or refinance the loan. See, e.g., FAC ¶¶ 42, 65, 82. And Plaintiff’s resulting 

injury — the loss of the mortgage payments and the specter of foreclosure — has remained 

constant since that time. Plaintiff could have filed suit upon learning from Ocwen that the loan 

was unpaid since 2008. These claims are accordingly DISMISSED.

ii. Fraudulent Transfer (Claim VI)

Plaintiff alleges that BANA transferred its interest in the Property’s Deed of Trust to U.S. 

Bank in October 2015 “with actual intent to hinder, delay, or defraud Plaintiff,” in violation of 

California’s Uniform Voidable Transactions Act (“UVTA”). See FAC ¶¶ 117–25; see also Cal. 

Civil Code § 3439.04. Under UVTA, “[a] transfer made or obligation incurred by a debtor is 

voidable as to a creditor, whether the creditor’s claim arose before or after the transfer was made 

or the obligation was incurred, if the debtor made the transfer or incurred the obligation . . . [w]ith 

actual intent to hinder, delay, or defraud any creditor of the debtor.” Cal. Civ. Code 

§ 3439.04(a)(1). In order to state a claim, however, it is not enough to plead “[m]ere intent to 

delay or defraud.” Mehrtash v. Mehrtash, 93 Cal. App. 4th 75, 80 (Cal. Ct. App. 2001). Rather, 

“injury to the creditor must be shown affirmatively. In other words, prejudice to the plaintiff is 

essential.” Id. Injury in this context means “the transfer puts beyond [Plaintiff’s] reach property 

[he] otherwise would be able to subject to the payment of [his] debt.” Id.

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interest in the Deed of Trust because he “had a contingent claim for damages against [BANA]” 

based on this pending action and his claims for fraud, negligent misrepresentation, and conversion. 

FAC ¶ 115. Plaintiff has failed to establish an essential element of his claim — that the allegedly 

fraudulent conveyance injured him. Here, Plaintiff is only seeking monetary damages. See id.

¶¶ 124–25 (seeking actual and punitive damages). Plaintiff has not alleged that the transfer made 

BANA insolvent or otherwise unable to pay Plaintiff any damages to which he may be found 

entitled. Consequently, even if the Court assumes Plaintiff may be able to overcome the statute of 

limitations issues discussed above and state a claim for fraud, misrepresentation or conversion in 

an amended complaint, Plaintiff could still recover monetary damages against BANA, despite the 

transfer of interest in the Deed of Trust to U.S. Bank. See Mehrtash, 93 Cal. App. 4th at 80. The 

claim is accordingly DISMISSED.

B. Ocwen

i. Statute of Limitations (Claim V)

Like BANA, Ocwen argues that Plaintiff’s claim against it for intentional interference with 

prospective economic relations is barred by the two-year statute of limitations. See Cal. Code Civ. 

P. § 339. Although Plaintiff does not clearly identify the factual basis for this claim in the 

complaint, it appears from Plaintiff’s opposition to the motion to dismiss, that Ocwen allegedly 

interfered with Plaintiff’s prospective relationship with BANA by assuming the servicing of the 

loan and not accepting Plaintiff’s mortgage payments. See FAC ¶¶ 108–10; Dkt. No. 44 at 7. 

Both events occurred in August 2012. See FAC ¶¶ 26–27.

Plaintiff attempts to overcome this timeline by arguing that each time Ocwen rejected a

payment, a separate statute of limitations was triggered under the continuous accrual doctrine. Yet

Plaintiff has not cited — nor could the Court identify — a single instance in which a California 

court applied the continuous accrual doctrine to an intentional interference claim. Accord DC 

Comics v. Pac. Pictures Corp., 938 F. Supp. 2d 941, 949 (C.D. Cal. 2013); Boon Rawd Trading 

Int’l Co. v. Paleewong Trading Co., 688 F. Supp. 2d 940, 952 (N.D. Cal. 2010). 

Moreover, Plaintiff’s complaint contains only vague, at times even contradictory,

allegations of “continuous” interference with economic relationships. First, Plaintiff has not 
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alleged any duty or obligation for Ocwen to accept payment from Plaintiff. See Aryeh v. Canon 

Bus. Sols., Inc., 55 Cal. 4th 1185, 1199 (Cal. 2013) (“[A]ccrual applies whenever there is a 

continuing or recurring obligation.”). Rather, according to Plaintiff’s own account, he had not 

been able to assume or modify the loan and Ocwen said its records showed that the account had 

not been paid since 2008. See FAC ¶¶ 23–27. Second, Plaintiff does not allege that Plaintiff 

attempted to pay Ocwen within the two-year statute of limitations. Plaintiff’s vague assertion that 

“Ocwen began sending Plaintiff’s payments back” is insufficient to invoke the continuous accrual

doctrine. The Court finds that this claim is barred by the statute of limitations and is therefore

DISMISSED.

ii. UCL (Claim VII)

Plaintiff’s UCL claim, brought against “all Defendants,” is premised on “Defendants’ 

fraud in violation of Civil Code [] § 1709, negligent misrepresentations to Plaintiff in violation of 

California Civil Code § 1710(2), fraudulent transfer of the Deed of Trust secured by Plaintiff’s 

property in violation of California Civil Code § 3439, and Defendants’ conversion of Plaintiff’s 

money.” FAC ¶ 128. Yet Plaintiff does not allege that Ocwen engaged in fraud, negligent 

misrepresentation, fraudulent transfer, or conversion. Plaintiff cannot rewrite its complaint now in 

its opposition to the motion to dismiss to clarify that the UCL claim against Ocwen is actually 

based on the intentional interference claim. Cf. Van Buskirk v. Cable News Network, Inc., 284 

F.3d 977, 980 (9th Cir. 2002) (“Ordinarily, a court may look only at the face of the complaint to 

decide a motion to dismiss.”). The Court further cautions Plaintiff that for an intentional 

interference claim to support a UCL claim, Plaintiff must clearly allege the factual basis for each 

element, including what unlawful conduct Ocwen engaged in that interfered with Plaintiff’s

relationship with BANA. See San Jose Construction, Inc. v. S.B.C.C., Inc., 155 Cal. App. 4th 

1528, 1544–1545 (Cal. Ct. App. 2007) (“[A]n act is independently wrongful if it is unlawful, that 

is, if it is proscribed by some constitutional, statutory, regulatory, common law, or other 

determinable legal standard . . . [A]n act must be wrongful by some legal measure, rather than 

merely a product of an improper, but lawful, purpose or motive.”) (quotation omitted). Plaintiff’s 

UCL claim against Ocwen is DISMISSED.
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C. U.S. Bank and Caliber

i. Fraudulent Transfer (Claim VI)

Plaintiff also brings an UVTA claim against U.S. Bank and Caliber. Plaintiff alleges that 

U.S. Bank and BANA have “an ongoing and continuing relationship” and Caliber acted as 

BANA’s agent as part of this “fraudulent transaction.” FAC ¶¶ 12, 120, 123. Consequently, 

Plaintiff suggests that U.S. Bank and Caliber were “co-conspirator[s] and/or joint venturer[s].” 

See id. ¶¶ 120, 123.

As discussed above in Section III.A.ii, this claim fails because Plaintiff does not identify 

an injury from the transfer to U.S. Bank. This claim fails for the additional reason that Plaintiff 

has not adequately alleged that U.S. Bank and Caliber acted as co-conspirators or joint venturers 

with BANA. To allege a conspiracy, a plaintiff must plead: “(1) formation and operation of the 

conspiracy and (2) damage resulting to plaintiff (3) from a wrongful act done in furtherance of the 

common design.” Rusheen v. Cohen, 37 Cal. 4th 1048, 1062 (Cal. 2006). And a joint venture 

requires: (1) an intent to become partners; (2) a community of interest in the undertaking; (3) an 

understanding to share profits and losses; and (4) equal authority and right to direct and control the 

conduct of all co-venturers with respect to the joint venture. See 580 Folsom Associates v. 

Prometheus Development Co., 223 Cal. App. 3d 1, 18 (Cal. Ct. App. 1990).

Here, Plaintiff merely alleges that BANA had an interest in the mortgage at issue, BANA

then assigned that interest to U.S. Bank in 2015, Caliber recorded the assignment on behalf of 

BANA and U.S. Bank, and Caliber is the current servicer of the mortgage. FAC ¶¶ 7–10, 29. 

This is insufficient to hold either U.S. Bank or Caliber liable as co-conspirators or joint venturers 

to the allegedly fraudulent transfer. The complaint is devoid of any factual allegations that the 

parties agreed to deceive Plaintiff by transferring BANA’s interest in the loan or that they engaged 

in any wrongful act in furtherance of that agreement. It is not, contrary to Plaintiff’s urging, “a 

logical inference” that Caliber “knew of the misrepresentations at hand, the threatened litigation, 

and Bank of America’s intent to avoid liability for its misconduct” simply because it was the loan 

servicer at the time of the transfer. See Dkt. No. 45 at 7. Plaintiff must provide “more than labels 

and conclusions” that the transfer was the result of a conspiracy rather than standard business 
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practices in order to survive the motion to dismiss stage. Twombly, 550 U.S. at 555; Kearns v. 

Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir. 2009) (“[W]hen fraud is alleged, ‘a party must 

state with particularity the circumstances constituting fraud . . . .’”) (quoting Fed. R. Civ. P. 9(b)). 

Moreover, Plaintiff’s assertion of agency liability against Caliber fails because Plaintiff has not 

alleged that Caliber acted on its own behalf in transferring BANA’s interest in the Property such 

that the agent’s immunity rule does not apply. See Everest Inv’rs 8 v. Whitehall Real Estate Ltd. 

P’ship XI, 100 Cal. App. 4th 1102, 1107 (Cal. Ct. App. 2002) (“[U]nder the long standing ‘agent’s 

immunity rule,’ absent allegations that the agent was acting on its own behalf, it cannot be held 

liable for conspiring with its own principal.”). This claim against U.S. Bank and Caliber is 

DISMISSED.

ii. UCL (VII)

To the extent that Plaintiff’s UCL claim against U.S. Bank and Caliber is derivative of the 

UVTA fraudulent transfer claim, see FAC ¶¶ 126–33, it fails for the same reasons the UVTA 

claim fails as discussed above. Although the complaint does not specifically allege additional 

grounds for Plaintiff’s UCL claim, in Plaintiff’s opposition to the motion to dismiss, he suggests 

that his UCL claim is also premised on U.S. Bank’s alleged representations that Plaintiff could 

modify the mortgage loan. See Dkt. No. 45 at 8–9. He states that it was unfair and fraudulent for 

them to “ignore the application materials submitted and instead foreclose on the property.” Id. at 

9. Again, Plaintiff cannot amend his complaint with arguments made in his opposition brief, but 

regardless, the Court finds that Plaintiff’s UCL claim still falls short.

The complaint merely alleges that Caliber informed Plaintiff of the documents necessary to 

apply for a home retention option and that it later “denied receiving [Plaintiff’s] application.”

FAC ¶ 30. The complaint does not allege that Caliber ignored a valid application. Indeed Plaintiff 

concedes that he did not provide all the requisite information for home retention. Id. More 

fundamentally, Plaintiff alleges that because of Countrywide and BANA’s delay, he never actually 

assumed or otherwise modified the loan on the Property. Plaintiff does not explain how Caliber 

could approve a home retention option for Plaintiff under these circumstances. The claim is 

therefore DISMISSED.
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iii. Declaratory Relief (IV)

Lastly, Plaintiff asserts a claim for declaratory relief against U.S. Bank and Caliber 

preventing them from foreclosing on the Property based on a loan amount that does not account 

for Plaintiff’s recurring payments made from 2008 to 2012. See FAC ¶¶ 94–99. 

As an initial matter, the Court notes this issue may be moot as the Court denied Plaintiff’s 

ex parte application for a temporary restraining order enjoining the foreclosure sale scheduled for 

August 10, 2017. See Dkt. No. 64. Regardless, declaratory relief is not a stand-alone claim, but 

rather requires Plaintiff to state some other substantive basis for liability. See Cal. Code Civ. P. 

§ 1060 (a court may grant declaratory relief to “[a]ny person . . . who desires a declaration of his 

or her rights or duties with respect to another . . . in cases of actual controversy relating to the legal 

rights and duties of the respective parties.”). The Court has already concluded that the complaint 

does not adequately allege that U.S. Bank or Caliber were aware of or otherwise responsible for 

BANA’s conduct. Because the Court has dismissed Plaintiff’s other claims, the Court must also 

dismiss his declaratory relief claim. See City of Cotati v. Cashman, 29 Cal. 4th 69, 79 (Cal. 2002) 

(“The fundamental basis of declaratory relief is the existence of an actual, present controversy

over a proper subject.”). This claim is thus DISMISSED.

IV. CONCLUSION

Accordingly, the Court GRANTS Defendants’ motions to dismiss in their entirety. Plaintiff 

has 21 days to file an amended complaint if he can do so consistent with his Rule 11 obligations. 

Plaintiff may not add any additional Defendants or new claims.

IT IS SO ORDERED.

Dated:

______________________________________

HAYWOOD S. GILLIAM, JR.

United States District Judge

9/20/2017