27 Oct

We conclude plaintiffs have sufficiently alleged causes of action for breach of contract, promissory estoppel, and fraud based on false promise. Therefore, we shall reverse on those bases.[1]
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RICHARD BUSHELL et al., Plaintiffs and Appellants,v.JPMORGAN CHASE BANK, N.A., Defendant and Respondent.
No. C070643.
Court of Appeals of California, Third District, Placer.
Filed October 22, 2013.United Law Center, John S. Sargetis and Jon L. Oldenburg for Plaintiffs and Appellants.AlvaradoSmith, Theodore E. Bacon and Ricardo Diego Navarrette for Defendant andRespondent.
iStock_000015861187MediumBUTZ, J.In this action arising from a home foreclosure, the trial court sustained, without leave to amend,defendant lender’s demurrer to plaintiff borrowers’ complaint. The complaint alleges causes of action for breach of contract, promissory estoppel, and fraud based on intentionalmisrepresentation or false promise. Specifically, plaintiffs allege that defendant, under a trialmodification mortgage plan, offered to permanently modify the plaintiffs’ mortgage loan, provided plaintiffs complied with the terms of the trial modification plan by returning certainrequested documents, making timely trial modification payments, and qualifying under a federal program that seeks to reduce home foreclosures, the Home Affordable Mortgage Program(hereafter, HAMP).Two recent appellate decisions provide guidance on this subject, one from the California Courtof Appeal, Fourth Appellate District, Division Three (
West v. JPMorgan Chase Bank, N.A.
(2013) 214 Cal.App.4th 780 (
)) and the other from the federal Seventh Circuit Court of Appeals (
Wigod v. Wells Fargo Bank, N.A.
(7th.Cir. 2012) 673 F.3d 547 (

). These twodecisions, which were issued after the trial court ruled here, concluded that when a borrower hasalleged that he or she has complied with all the terms of a trial modification plan offered under HAMP—including making all required payments and providing all required documentation— and if the borrower’s representations on which the modification is based remain true and correct,the lender or loan servicer (collectively hereafter, the lender) must offer the borrower a goodfaith permanent modification; and if the lender fails to do so, the borrower may sue the lender,under state law, for breach of contract of the trial modification plan, among other causes of action.We conclude plaintiffs have sufficiently alleged causes of action for breach of contract, promissory estoppel, and fraud based on false promise. Therefore, we shall reverse on those bases.

In reviewing a demurrer-based judgment of dismissal, we determine, independently of the trialcourt, whether, assuming the facts alleged in the complaint are true, a cause of action has been or can be stated. (
Blank v. Kirwan
(1985) 39 Cal.3d 311, 318

Rogoff v. Grabowski
(1988) 200Cal.App.3d 624, 628.) We may also consider judicially noticeable matters and facts in theexhibits attached to the complaint. (
Picton v. Anderson Union High School Dist.
(1996) 50Cal.App.4th 726, 732-733.)The complaint at issue here, the plaintiffs’ first amended complaint, alleges the following facts.In May 2004, plaintiffs Richard and Susan Bushell obtained a loan from then defendantWashington Mutual Bank to purchase a home in Roseville. Plaintiffs executed a deed of trustencumbering the property as security. Subsequently, defendant JPMorgan Chase Bank, N.A.,acquired certain assets and liabilities of Washington Mutual, including plaintiffs’ loan and deedof trust (we will refer collectively to these defendants as Chase).
CIO, 2 Others To Resign After JPMorgan Chase $2 Billion Trading ErrorIn December 2008, plaintiffsdefaulted on their loan.In May 2009, plaintiffs received from Chase a trial modification plan (called a “Trial PeriodPlan” or TPP), which stated in part: “If you qualify under the federal government’s HomeAffordable Modification [P]rogram [(HAMP)] and comply with the terms of the [trialmodification plan], we will modify your mortgage loan and you can avoid foreclosure.” In thetrial modification plan, Chase requested that plaintiffs (1) sign and return certain documents (the plan itself, if they accepted it; a financial hardship affidavit; a tax return disclosure form; anddocumentation to verify previously stated income), and (2) submit the first trial period payment(in the amount of $1,420.31, calculated from income and loan information Chase already hadand calculations Chase had already performed pursuant to HAMP guidelines). (See U.S. Dept.Treasury, HAMP Supplemental Directive No. 09-01, Apr. 6, 2009, pp. 2-5, 8-10, 14-15(hereafter, Supplemental Directive 09-01).) Plaintiffs signed and provided all the requesteddocuments and made the first trial period payment.In June 2009, plaintiffs received a letter from Chase confirming the trial modification plan andspecifying in part: “If you make all [3] trial period payments on time [under the trialmodification plan] and comply with all of the applicable [HAMP] program guidelines, you willhave qualified for a final [permanent] modification.” The letter also contained four coupons withwhich to return the trial modification payments, and instructed plaintiffs to continue making thetrial modification payments after the first three in the event of a paperwork delay.After making the first four trial period payments, plaintiffs inquired about the status of their loanmodification. Chase advised them to continue making the trial payments. Plaintiffs did, making26 trial modification payments between June 2009 and August 2011.Plaintiffs contacted Chase multiple times between November 2009 and June 2010, inquiringabout the status of their loan modification. Between November and December 2009, Chase
indicated it was processing the paperwork. Then, on December 30, 2009, when plaintiffs againinquired, Chase told plaintiffs the loan modification had been denied “`by the investor'” andChase could not accept any more payments. In the ensuing months, plaintiffs requested writtenexplanation, but received nothing. Plaintiffs called Chase and were told to stop making payments because Chase was “`crunching the numbers'” for the modification and payment schedule, andadditional payments at that point would skew the outcome. And then in June 2010, plaintiffswere told that their file had been reviewed and cleared to resume the trial modification payments,which plaintiffs resumed. In November 2010, plaintiffs received a letter from Chase requestingupdated information. This was the first written communication from Chase since the trialmodification plan provided to plaintiffs in May 2009 and the confirming letter sent in June 2009.Plaintiffs provided the requested information in person on December 3, 2010. The next writtencommunication plaintiffs received from Chase was on January 27, 2011—a notice of trustee’ssale regarding the property (posted on their front door).
After Chase demurred to plaintiffs’ original complaint, plaintiffs filed their first amendedcomplaint alleging (1) breach of contract, including breach of the implied covenant of good faithand fair dealing, (2) promissory estoppel, and (3) fraud—intentional misrepresentation and false promise.The trial court, which ruled before
were decided, sustained Chase’s demurrer without leave to amend and dismissed the case, finding: (1) as to breach of contract and theimplied covenant of good faith and fair dealing—the trial modification plan was not, on its face,a binding contract for a loan modification; plaintiffs did not allege they qualified under HAMP;and the implied covenant theory fell with the lack of a contract; (2) as to promissory estoppel— the alleged promise was conditional rather than clear and unambiguous as required; and plaintiffsfailed to allege detrimental reliance (damages) because monthly mortgage payments that plaintiffs were already obligated to make cannot constitute damages; and (3) as to fraud— plaintiffs failed to allege their facts with the requisite level of specificity, and similarly failed toallege detrimental reliance.This appeal followed.
action alert imagesDISCUSSIONI. Plaintiffs State a Cause of Action for Breach of ContractIncluding Breach of the Implied Covenant of Good Faithand Fair DealingA. Breach of Contract

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