Opinion
Case No.: 09-CV-02708-LHK.
July 20, 2011
ORDER GRANTING-IN-PART AND DENYING-IN-PART PLAINTIFFS LEAVE TO AMEND
I. INTRODUCTION
Jeffrey Schulken and Jenifer Schulken (collectively, "Plaintiffs") bring this putative class action against Washington Mutual Bank ("WaMu") and JPMorgan Chase ("Chase") (collectively, "Defendants"), alleging violations of the Truth in Lending Act ("TILA"), 15 U.S.C. §§ 1601, et seq., and its implementing statute, Regulation Z, 12 C.F.R. 226.1, et seq.; violations of California's Unfair Competition Law ("UCL"), Cal. Bus. Prof. Code §§ 17200, et seq.; and breach of contract. Generally, Plaintiffs allege that Defendants improperly suspended and reduced credit limits on home equity lines of credit ("HELOCs").
Plaintiffs filed a motion for class certification on June 2, 2011, as scheduled in the Case Management Order entered by this Court on February 9, 2011. See Dkt. No. 69. Also on June 2, 2011, the Court held a Case Management Conference (CMC). At the CMC, Plaintiffs stated that they intended to amend their Third Amended Complaint to change the class definitions to match the definitions submitted in their motion for class certification. The Court asked the parties to stipulate to the proposed amendments if possible. On June 9, 2011, Plaintiffs filed a motion for leave to file a fourth amended complaint (4AC). Mot., Dkt. No. 90. The hearing on this motion was set for September 8, 2011. The Court finds this matter suitable for decision without oral argument, and hereby VACATES the September 8, 2011 hearing. See Civ. L. R. 7-1(b). For the reasons set forth below, the Court GRANTS-IN-PART and DENIES-IN-PART Plaintiffs' motion for leave.
II. BACKGROUND
The proposed 4AC adds significant factual detail to the allegations in the Third Amended Complaint (TAC). In addition, the 4AC adds several claims and amends the original class to define two classes, each with one subclass. The TAC asserted that Plaintiffs obtained a $250,000 HELOC from WaMu in October, 2005. TAC ¶ 10. The HELOC was secured by their primary residence, and Plaintiffs allege it was used primarily for personal family and household purposes. TAC ¶ 17. On September 25, 2008, the United States Office of Thrift Supervision seized WaMu and put it into FDIC receivership. TAC ¶ 11. After this, Chase purchased and assumed "all mortgage servicing rights and obligations of" WaMu, including the Plaintiffs' HELOC account. TAC ¶ 12.
On March 13, 2009, Plaintiffs received an "Income Verification Request" letter from Chase requesting certain financial information. TAC ¶ 18. In response to the letter, Plaintiffs submitted financial information. TAC ¶ 19. On March 19, 2009, Plaintiffs discovered that their HELOC had been suspended. TAC ¶ 20. The following day, Plaintiffs received a letter from Chase stating that their HELOC had been suspended for failure to submit the financial information requested on March 13, 2009. TAC ¶ 20. Plaintiffs alleged that their income did not materially change or decrease at any time, and that the Defendants had no reasonable basis to conclude that Plaintiffs would be unable to meet the terms of their HELOC. TAC ¶ 23.
On the basis of these allegations, Plaintiffs sought (in the TAC) to represent a class consisting of "All WAMU and Chase HELOC borrowers in the United States who had their respective HELOCs reduced or suspended due to WAMU's or Chase's conclusion that the borrower would be unable to fulfill their payment obligations due to a purported material adverse change in financial circumstances." TAC ¶ 26. On behalf of this class, Plaintiffs asserted the following claims for relief: 1) a declaration that Chase violated TILA and Regulation Z based on Chase's suspension of HELOC accounts in the absence of a material change in income or a reasonable belief that borrowers would be unable to repay their debt obligations; 2) actual and statutory damages for the same TILA and Regulation Z violations asserted in the first claim; 3) actual and statutory damages under TILA and Regulation Z for Defendants' failure to give notice of the specific reasons that HELOC accounts were suspended; 4) damages for breach of the HELOC contracts based on suspension of HELOC accounts without any material change in income or reasonable belief that borrowers would be unable to repay their debt obligations; and 5) HELOC reinstatement and restitution for UCL violations based on unlawful acts (violations of TILA and Regulation Z), unfair acts (suspending accounts without advance notice), and asserted fraudulent acts (allegedly false statements or material omissions made when Chase communicated with customers about suspended HELOC accounts).
In the 4AC, Plaintiffs expand upon the allegations in the TAC. Plaintiffs allege that the Income Verification Letters were sent to borrowers under the "4506-T Program," a program designed to reach borrowers ineligible for other HELOC-suspension programs designed by Chase to suspend HELOCs. 4AC ¶ 7. Plaintiffs allege that under the 4506-T Program, Chase requested that customers fill out an IRS Form 4506-T (a Request for Transcript of Tax Return) and recent paystubs. 4AC ¶ 8. Plaintiffs allege that Chase then suspended the accounts of all "Incomplete Responders," customers who provided only one of the requested items (either paystubs or the 4506-T form, but not both). 4AC ¶ 11. Plaintiffs allege Chase also suspended the accounts of "Non-Responders," those who failed to submit any response to the Income Verification Letters within 14 days. Id. A third group of customers provided both signed 4506-T forms and paystubs. For these customers, Chase calculated a Debt-to-Income ratio (DTI) based on the submitted information. 4AC ¶ 13. If the DTI was below a certain threshold, the account was not suspended (or was reinstated) after a "reasonableness review." 4AC ¶ 14. If the DTI was above a certain threshold, Chase suspended the HELOC automatically. Id. If the DTI was between these two thresholds, Chase compared the present DTI to the DTI at origination. These customers' HELOCs could be suspended based on factors including their disposable income and their relationship with the bank. Id.
Non-Responders and Incomplete Responders could move into the group of customers who provided complete information if they submitted information after appealing the suspension of their HELOC.
In the 4AC, Plaintiffs allege that they used their HELOC to pay for personal, family and household expenses, and "occasionally, but by no means primarily," to pay for expenses relating to the family daycare the Schulkens ran out of their home since 2000. 4AC ¶¶ 17-18. Plaintiffs allege that they received an Income Verification Letter on March 17, 2009, and that they returned it to Chase the same day with a signed 4506-T form and an annotation that they are both self-employed. 4AC ¶ 21. Plaintiffs allege that two days later, they found that Chase had suspended their HELOC. 4AC ¶ 21. On March 21, 2009, they received a letter from Chase stating that the suspension was based on Chase's inability to verify the Plaintiffs' financial information, because they did not submit paystubs. 4AC ¶ 21.
After this, the Plaintiffs provided additional financial information to Chase. On March 31, 2009, the Plaintiffs received a letter from Chase stating that their HELOC would remain suspended because Chase determined that Plaintiffs had insufficient income to satisfy their debt obligations. 4AC ¶ 25. Plaintiffs contacted Chase to dispute this, arguing that their income had "hardly changed" since they opened the HELOC account. 4AC ¶ 26. Chase responded that because the Plaintiffs' monthly income at origination was listed as $11,500, their present income was materially lower. 4AC ¶ 27. The Plaintiffs responded that they had never earned $11,500 monthly, and that WaMu must have intentionally misrepresented their income if their loan application stated this. 4AC ¶ 28-29. Plaintiffs allege that the "vast majority" of HELOC accounts processed through the 4506-T Program were "stated income" loans in which the borrower's income had not been objectively verified at origination. 4AC ¶ 29. Plaintiffs further allege Chase's awareness that comparing customers' verified present incomes to their stated incomes would "be more likely to falsely demonstrate adverse changes in borrower financial conditions when none actually had occurred," and intentionally used this method of DTI comparison to "increase the likelihood of issuing a suspension." 4AC ¶ 29, 33. Plaintiffs allege that their income had not materially decreased since origination of their HELOC, that they had never missed or been late with a payment on the HELOC, that their home had not significantly decreased in value, and that they had substantially paid down the principal balance on the account since origination. 4AC ¶ 31.
Plaintiffs allege that their HELOC contract allowed Chase to request "a current financial statement, a new credit application, or both," but that this language did not authorize Chase to request the 4506-T form or paystubs, or to suspend their account when they failed to produce this information. 4AC ¶ 34. Plaintiffs allege that other potential class members' HELOC agreements were silent about submission of additional information, and thus that Chase was not authorized to request such information from those customers, either. 4AC ¶ 34.
Based on these allegations, Plaintiffs define the following classes and subclasses:
Inability to Verify Class:
All HELOC borrowers nationwide who were parties to the Schulken HELOC Contract and whose HELOCs Chase blocked through the 4506-T Program when the customers did not provide either a complete IRS Form 4506-T, paystubs, or both, upon Chase's request.
Inability to Verify California Subclass:
All Inability to Verify Class members whose homes securing the HELOCs are located in California.
Stated Income Class:
All heritage WaMu HELOC borrowers nationwide whose HELOCs were originated based on stated incomes but who were blocked by Chase at any time through the 4506-T Program based upon a determination by Chase that the borrowers' verified current financial information showed a material adverse change in financial circumstances from their stated incomes on file when they opened their accounts.
Stated Income California Subclass:
All Stated Income Class members whose homes securing the HELOCs are located in California.
Plaintiffs assert the following claims on behalf of these classes: 1) account reinstatement and statutory damages for TILA and Regulation Z violations on behalf of the Inability to Verify Class, based on the suspension of HELOCs due to customers' failure to provide 4506-T forms, paystubs, or both; 2) alternatively, injunctive relief and a declaration that Chase violated TILA and Regulation Z based on violations asserted in the first claim; 3) HELOC reinstatement and statutory damages for TILA and Regulation Z violations on behalf of the Stated Income Class, based on the use of verified current DTI as compared to unverified origination DTI as a basis for HELOC suspension; 4) alternatively, injunctive relief and a declaration that Chase violated TILA and Regulation Z based on violations asserted in the third claim; 5) HELOC reinstatement and statutory damages for TILA and Regulation Z violations on behalf of the Inability to Verify Class, based on insufficient notice of HELOC reductions; 6) HELOC reinstatement for breach of contract on behalf of the Inability to Verify Class; 7) HELOC reinstatement for breach of contract on behalf of the Stated Income class; and 8) injunctive relief for UCL violations on behalf of the California subclasses, based on unlawful and unfair acts as alleged in the other claims, and on additional alleged unfair and fraudulent acts.
III. LEGAL STANDARD
Under 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.Pro. 15(a)(1). After that initial period has passed, amendment is permitted only with the opposing party's written consent or leave of the 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 Solutions, Inc., 194 F.3d 980, 986 (9th Cir. 1999). "[I]t is the consideration of prejudice to the opposing party that carries the greatest weight." Eminence Capital, 316 F.3d at 1052 (citing DCD Programs, 833 F.2d at 185). "Absent prejudice, or a strong showing of any of the remaining Foman factors, there exists a presumption under Rule 15(a) in favor of granting leave to amend." Id. (citation omitted). "The party opposing leave to amend bears the burden of showing prejudice." Serpa v. SBC Telecomms., Inc., 318 F. Supp. 2d 865, 870 (N.D. Cal. 2004) (citing DCD Programs, 833 F.2d at 187).
IV. DISCUSSION
Chase argues that Plaintiffs should be denied leave to amend their complaint to add the allegations and claims relating to Chase's comparison of stated income and verified income. Chase moves on two grounds. First, Chase argues that Plaintiffs unreasonably delayed seeking to amend their complaint, because they knew that their own HELOC was suspended based on a comparison of verified and stated income as of April 2009 and therefore could have stated this claim much sooner. Second, Chase argues that it will be prejudiced if the Court allows the amendment, because it will lose the opportunity to challenge Plaintiffs' individual claims in a dispositive motion to be decided before class certification. Neither argument provides a sufficient basis for the Court to deny leave to amend.
The Court set a deadline of April 7, 2011 for Chase to move for summary judgment on Plaintiffs' individual claims as pled in the TAC, but Chase did not file such a motion.
a. Undue Delay
It does appear that Plaintiffs could have stated their claims based on the income comparisons sooner than they did. In the proposed 4AC, Plaintiffs allege that they were aware of the circumstances of their own HELOC suspension before the initial complaint was filed. See 4AC ¶¶ 27, 28 ("Mr. Schulken explained to Chase that the $11,200 figure was inaccurate, that neither he nor his wife had ever provided such an inflated income figure to WaMu, and that if the Schulkens' loan file indicated such an income, then WaMu had intentionally misrepresented their income."). Plaintiffs argue that they could not assert this theory until they had additional detail regarding the HELOC contracts of potential class members, which they did not obtain until "starting in February 2011." However, Plaintiffs submitted their first four complaints without the benefit of this discovery. It is not clear why the TILA and breach of contract claims asserted in the TAC could be pled without discovery of class members' contracts while the income comparison claims could not. In addition, while Plaintiffs complain that Chase failed to produce discovery of putative class members' contracts and its policies until starting early in 2011, it appears that Plaintiffs could have been more diligent in asserting their rights to discovery. For example, the Court granted-in-part and denied-in-part Chase's third motion to dismiss in October, 2010. It is not clear why Plaintiffs waited until a CMC in February 2011 to raise deficiencies in Chase's production with the Court.
Even accepting Plaintiffs' argument that they could not, in good faith, allege that Chase applied its policy of income comparison to the entire class until discovery of this policy, it still appears that Plaintiffs could have moved to amend their complaint before filing their motion for class certification. Chase points out that by April 8, 2011, Plaintiffs' expert had articulated and opined on the income comparison theory. Surely if Plaintiffs' expert could express his opinion of the theory by that time, Plaintiffs had a good faith basis to plead claims based on the theory. Had Plaintiffs moved to amend their complaint before submitting their motion for class certification, these issues could have been resolved before the deadline for filing a class certification motion.
Despite all of this, the Court finds that Plaintiffs' delay is not so significant that leave to amend should be denied. Since the filing of the initial complaint, Chase has been on notice that Plaintiffs alleged Chase suspended HELOCs in the absence of a material change in customer income. The additional details Plaintiffs seek to add in the 4AC regarding comparison of stated and verified income flesh out a theory Plaintiffs have stated all along. Clearly, it would have been preferable for Plaintiffs to move to amend their complaint as soon as possible — and certainly before filing a motion for class certification asking the Court to certify classes that were not even described in the operative complaint. However, the fact that Plaintiffs moved to amend in a matter of days after their class certification motion was filed enabled the Court to address this issue before the class certification motion itself. Delay alone is not a sufficient ground to deny leave to amend. See Bowles v. Reade, 198 F.3d 752, 758 (9th Cir. 1999) ("Undue delay by itself, however, is insufficient to justify denying a motion to amend.").
Chase cites two cases in which courts denied motions for leave to amend class action complaints, but these cases are distinguishable. In one, discovery had been closed for nine months when the motion for leave to amend was filed, and the court noted it would likely need to be reopened if the amendments were allowed. In re Taco Bell Wages and Hours Actions, No. 1:07-cv-01314 OWW DLB, 2011 U.S. Dist. LEXIS 47758 at *16-*18 (E.D. Cal. May 3, 2011). In the other case, the court denied leave to amend not solely based on the plaintiff's delay, but also because amendment would prejudice the defendant by vastly increasing the scope of discovery, and would be futile. Mansfield v. Midland Funding, LLC, No. 09cv358 L(WVG), 2011 U.S. Dist. LEXIS 34102 at *12-*17 (S.D. Cal. Mar. 30, 2011). As discussed below, the Court rejects Chase's argument that Chase will be prejudiced by the proposed amendment. Plaintiffs' delay in moving to amend, by itself, is insufficient to deny leave to amend. Bowles, 198 F.3d at 758. However, the Court asks that both parties cooperate to avoid any further delays in this litigation. Such delays unnecessarily complicate case management and waste the resources of the Court and the parties.
b. Prejudice
Chase argues that it will be prejudiced if Plaintiffs are permitted to file their 4AC. Chase cites no authority for either of its prejudice arguments, and the Court does not find them persuasive. Chase argues that because the deadline for filing summary judgment motions relating to the named Plaintiffs' individual claims has passed, Chase will lose the opportunity to have such a motion regarding the income comparison claims determined before class certification is decided. Although it would have been preferable to decide such a motion before considering class certification, this is not a sufficient basis to deny Plaintiffs leave to amend. Chase can move for summary judgment at any time before the November 17, 2011 deadline for dispositive motions. Because Chase has not yet had an opportunity to move for summary judgment of the Schulken's individual income comparison claims, it may do so before the November 17, 2011 deadline.
The Court notes that Chase has been on notice of Plaintiffs' income comparison theory for several months. In its opposition, Chase admits that the income comparison theory was disclosed no later than April 8, 2011, when Plaintiffs served their expert report. See Opp'n at 4.
As noted above, Chase was provided the opportunity to move for summary judgment on Plaintiffs' claims in the TAC, but chose not to.
Similarly, Chase argues the amendment will deprive it of the opportunity to bring a motion to dismiss the "income comparison" claims before class certification is decided. Chase has raised some of the arguments it says it might have brought in a motion to dismiss in its opposition to the motion for class certification (for example, its argument that the named Plaintiffs do not have standing to seek certain relief). The Court will address those arguments when it resolves the renewed class certification motion, if any. Chase also states its belief that Plaintiffs' "income comparison" claims should be dismissed for failure to state a claim. However, Chase could have opposed leave to amend on the grounds of futility by demonstrating that Plaintiffs had failed to state a claim, but Chase chose not to. If Chase has a meritorious argument that the newly-added income comparison theory fails to state a claim, Chase may move to dismiss in lieu of answering the 4AC. However, Chase is cautioned against filing a meritless motion to dismiss. Three motions to dismiss have already been decided in this case.
c. Futility in Amendment
In its opposition to the class certification motion, Chase argued that Plaintiffs cannot seek equitable relief under TILA because such relief is not available as a matter of law. Although Chase did not raise this argument in its opposition to the motion for leave to amend, the Court will address it now because there is no point in granting leave to amend to claim relief that is not available. Chase relies on an opinion by the Eleventh Circuit holding that TILA does not allow equitable relief (such as injunctive or restitutionary relief). Christ v. Ben. Corp., 547 F.3d 1292 (11th Cir. 2008). The Eleventh Circuit noted that in enacting TILA, Congress "designated certain federal agencies, including the Federal Trade Commission, as the primary enforcement agencies of TILA, with the power to enforce compliance through `all of its functions and powers,' including orders of restitution." Christ, 547 F.3d at 1297 (internal brackets and citations omitted). In addition, Congress provided private rights of action to consumers, but limited the potential relief to actual damages, statutory damages, and attorney's fees and costs. Id. In the context of class actions, Congress further limited the potential relief by capping the recovery at "the lesser of $500,000 or 1 per centum of the net worth of the creditor." Id. In light of TILA's "comprehensive statutory scheme of remedies" and Congress's silence as to any equitable relief available to private litigants, the Eleventh Circuit found no implied right to injunctive or other equitable relief under TILA. Id., 547 F.3d at 1289.
In certain situations, other relief (such as rescission) is available. See 15 U.S.C. § 1635(a).
As Chase points out, numerous district courts outside the Eleventh Circuit have followed the Eleventh Circuit's reasoning, or independently arrived at the same conclusion, and ruled that equitable relief is not available to individuals or classes asserting TILA violations. See, e.g., Watkinson v. MortgageIT, Inc., No. 10-CV-327 — IEG (BLM), 2010 U.S. Dist. LEXIS 53540 at *32-33 (S.D. Cal. June 1, 2010) (relying on Christ and finding that equitable remedies of restitution and disgorgement are not available under TILA); Volovnik v. Benzel-Busch Motor Car Corp., No. 09 Civ. 10595 (DAB) (JLC), 2010 U.S. Dist. LEXIS 97046 at *25-26 (S.D.N.Y. July 29, 2010) (following the "trend among other courts" in finding enumerated TILA remedies exclusive); Reeder v. HSBC USA, Inc., No. 09-cv-2043, 2009 U.S. Dist. LEXIS 114651 at *26-27 (N.D. Ill. Dec. 8, 2009) (relying on Christ and finding that TILA does not provide injunctive relief for class claims). In addition, courts in this district have relied on similar reasoning to find that other statutory remedies are exclusive. See Yasin v. Equifax Info. Servs., LLC, No. C-08-1234 MMC, 2008 U.S. Dist. LEXIS 111051 at *6-11 (N.D. Cal. July 16, 2008) (finding no implied right to equitable relief under the Fair Credit Reporting Act in part based on delegation of enforcement of the FCRA to federal agencies).
Judge Alsup, of this Judicial District, has held otherwise. In Hofstetter v. Chase Home Fin., LLC, No. C 10-01313 WHA. 2011 U.S. Dist. LEXIS 38124 at *27-*28 (N.D. Cal. Mar. 31, 2011), Judge Alsup held that "[t]he cited TILA provision does not address equitable remedies, much less preclude them." This Court respectfully disagrees with Judge Alsup, and finds the Eleventh Circuit's reasoning in Christ persuasive. The Ninth Circuit has warned against reading too much into statutory silence, and that a court must "construe the details of an act in conformity with its dominating general purpose . . . read text in the light of context and . . . interpret the text so far as the meaning of the words fairly permits so as to carry out in particular cases the generally expressed legislative policy." Clark v. Capital Credit Collection Servs., 460 F.3d 1162, 1169 (9th Cir. 2006). If TILA simply provided a private right of action and the enumerated remedies, it would be harder to say whether Congress' silence regarding injunctive relief for private actions indicated an intention to preclude such relief. But in light of TILA's "comprehensive statutory scheme of remedies," including designation of the FTC as the primary TILA enforcement agency, the Eleventh Circuit's conclusion that Congress intentionally limited the remedies available to private parties bringing TILA claims gains support. See Christ, 547 F.3d at 1289. This conclusion is further supported by the fact that Congress has explicitly limited the remedies available in class actions asserting TILA claims. Plaintiffs characterize their claim to $500,000 in statutory damages as "incidental" to an injunction requiring reinstatement of millions of dollars in HELOC accounts, but TILA says that $500,000 is all Plaintiffs, as a class, can recover. 15 U.S.C. § 1640(a)(2)(B). "In the few cases that have considered the applicability of Rule 23(b)(2) classes in a TILA context, classes have been rejected where monetary relief was the primary objective of the litigation." 6 Alba Conte Herbert Newberg, Newberg on Class Actions § 21:9 (4th ed. 2002).
Plaintiffs' first through fifth claims in the proposed 4AC seek injunctive relief based on asserted TILA violations. Because the Court concludes that Plaintiffs are not entitled to this relief as a remedy for a TILA violation, Plaintiffs' request for leave to amend their complaint to claim injunctive relief for the asserted TILA violations is DENIED. Otherwise, Plaintiffs' request for leave to amend is GRANTED.
V. CONCLUSION
Accordingly, Plaintiffs are GRANTED leave to amend their complaint as specified in the 4AC, but must remove any claims to a right to injunctive relief based on violations of TILA or Regulation Z. Plaintiffs shall file their 4AC within seven calendar days of the date of this Order. In light of this Order, the briefing on the pending motion for class certification is largely focused on irrelevant issues. Accordingly, the Court DENIES the motion for class certification without prejudice. The hearing on this motion set for July 21, 2011 is hereby VACATED. The CMC scheduled to follow the hearing will go forward as planned. The parties shall come to the CMC prepared to discuss ADR.
Plaintiffs shall file any renewed motion for class certification within 21 days of the date of this Order. In briefing a renewed motion for class certification, the Court would appreciate it if the parties would address whether Plaintiffs may seek injunctive relief for their breach of contract claims, and what subpart of Rule 23(b) Plaintiffs should move under to certify a class seeking statutory damages under TILA. The motion shall be briefed under the Civil Local Rules (meaning that the opposition is due 14 days after the motion is filed, and the reply is due 7 days after the opposition is filed). See Civ. L.R. 7-3. The class certification motion is set for hearing on October 6, 2011 at 1:30 p.m. in courtroom eight on the fourth floor. Otherwise, the case schedule remains as set.
IT IS SO ORDERED.