(PS) Wong v. Home Loan Services Inc., et al, No. 2:2009cv00847 - Document 37 (E.D. Cal. 2009)
Court Description: ORDER signed by Magistrate Judge John F. Moulds on 11/12/2009 ORDERING that 20 Findings and Recommendations are vacated; dft's 14 Motion to Dismiss and 29 Motion to Dismiss are denied without prejudice; pltf's 1 Complaint is dismissed; pltf's first amended complaint is dismissed with leave to amend; pltf has 30 days to file a second amended complaint; pltf's 35 Motion for re-hearing is denied. (Suttles, J)
Download PDF
<![CDATA[
(PS) Wong v. Home Loan Services Inc., et al Doc. 37 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 CONNIE WONG, 9 10 11 12 Plaintiff, vs. HOME LOAN SERVICES, INC., et al., Defendants. 13 14 No. 2:09-cv-0847 JAM JFM PS ORDER / Plaintiff is proceeding pro se. Defendant Home Loan Services, Inc.’s motion to 15 dismiss came on regularly for hearing on October 15, 2009. There was no appearance by 16 plaintiff. Kimberly A. Paese appeared for defendant. Upon review of the motion and the 17 documents in support and opposition, upon hearing from counsel and good cause appearing 18 therefor, THE COURT FINDS AS FOLLOWS: 19 On June 17, 2009, this court issued findings and recommendations recommending 20 that the motion to dismiss filed by defendant First American Loanstar Trustee Services, aka First 21 American Title Insurance Company, be granted. On June 26, 2009, plaintiff filed objections. 22 On August 11, 2009, defendant Home Loan Services, Inc. filed a motion to 23 dismiss on the grounds that plaintiff fails to allege facts sufficient to state a claim or cause of 24 action and that the complaint is vague and ambiguous. Plaintiff has filed an opposition to that 25 motion and a request for leave to file an amended complaint. Plaintiff also appended a proposed 26 amended complaint. 1 Dockets.Justia.com 1 The court has reviewed the above documents. In her amended complaint, plaintiff 2 has again claimed that defendants are required to produce the original promissory note, citing 3 various sections of the California Commercial Code. However, as noted by defendant, the 4 California Commercial Code is not applicable to non-judicial foreclosure proceedings because 5 California Civil Code Section 2924 et seq. governs such foreclosures. Moeller v. Lien, 25 6 Cal.App.4th 822, 830 (1994). “Under Civil Code section 2924, no party needs to physically 7 possess the promissory note.” Sicairos v. NDEX West, LLC, 2009 WL 385855, *3 8 (S.D.Cal.2009) (citing Cal. Civ.Code, § 2924(a) (1)). Rather, “[t]he foreclosure process is 9 commenced by the recording of a notice of default and election to sell by the trustee.” Moeller, 10 25 Cal.App.4th at 830, 30 Cal.Rptr.2d 777. An “allegation that the trustee did not have the 11 original note or had not received it is insufficient to render the foreclosure proceeding invalid.” 12 Neal v. Juarez, 2007 WL 2140640, *8 (S.D.Cal.2007). Thus, plaintiff’s allegations supported by 13 citation to the Commercial Code and her claims concerning failure to produce the original 14 promissory note are unavailing and will be dismissed without leave to amend. 15 In her amended complaint, plaintiff alleges that the California Code requires 16 lenders to consummate their lending transactions by “assigning” their loans at the time of sale 17 and contends that the substitution of trustee recorded against her property was fraudulent because 18 it was obtained four years after the loan transaction, and assigned the loan after the lender’s 19 business was closed. In his reply to plaintiff’s opposition, defendant contends plaintiff could not 20 have been defrauded by the claimed assignment because it did not harm plaintiff, and the fact 21 that plaintiff’s loan payments may have benefitted someone other than the original lender had no 22 adverse impact on plaintiff. 23 Plaintiff’s citation to “the California Code” is insufficient to state a cognizable 24 claim concerning the alleged wrongful assignment, and plaintiff has failed to plead her claim of 25 fraud with particularity as required by Fed. R. Civ. P. 9(b). In an abundance of caution, plaintiff 26 will be granted leave to file a second amended complaint to more fully assert her claim of fraud. 2 1 Plaintiff is cautioned that she must set forth the following elements to demonstrate a cause of 2 action for fraud: (1) a knowingly false representation by defendant; (2) made with intent to 3 deceive or induce reliance by plaintiff; (3) justifiable reliance by the plaintiff; and (4) resulting 4 damages. Wilkins v. NBC, 71 Cal.App.4th 1066, 1081 (1999.) If plaintiff chooses to amend the 5 complaint to reallege her claim concerning the wrongful assignment, she must provide the legal 6 authority upon which she is relying in making said allegation. 7 Plaintiff also includes alleged violations of the Truth in Lending Act, 15 U.S.C. 8 § 1601, et seq. (“TILA”). Plaintiff contends that defendants violated TILA because she was not 9 given notice of subsequent assignments of the loan. 10 The declared purpose of TILA is "to assure a meaningful disclosure of credit 11 terms so that the consumer will be able to compare more readily the various credit terms 12 available to him and avoid the uninformed use of credit, and to protect the consumer against 13 inaccurate and unfair credit billing and credit card practices." 15 U.S.C. § 1601(a). 14 Consequently, TILA mandates that creditors provide borrowers with clear and accurate 15 disclosures of borrowers' rights, finance charges, the amount financed, and the annual percentage 16 rate. See, e.g., U.S.C. §§ 1632, 1635, 1638. 17 As noted by defendant, plaintiff was given notice in the deed of trust that the note 18 might be sold and there could be a change of loan servicer. (Document 31 at 37, ¶ 20.) Although 19 plaintiff alleges that TILA required she be given notice of any subsequent assignment, defendant 20 contends it is aware of no such provision, and plaintiff did not recite the particular code section 21 upon which she relies to make this allegation. As presently written, the first amended complaint 22 fails to state a cognizable TILA claim. 23 Finally, plaintiff has alleged a violation of the Real Estate Settlement Procedures 24 Act, 12 U.S.C. § 2601, et seq. (“RESPA”). Plaintiff contends that defendants violated RESPA 25 because they failed to respond to an alleged qualified written request. (Opp’n at 3.) As 26 defendant points out, however, such a request is required to be sent to the servicer of the loan. 12 3 1 U.S.C. § 2605. Exhibits to plaintiff’s amended complaint demonstrate that plaintiff mailed her 2 qualified written request to the trustee of the deed of trust rather than the loan servicer. 3 (Document 31 at 60.) Thus, the first amended complaint fails to state a cognizable RESPA 4 claim. 5 In light of the above, the court will vacate the June 17, 2009 findings and 6 recommendations. Defendants’ motions to dismiss will be denied without prejudice, and 7 plaintiff’s first amended complaint will be dismissed with leave to file a second amended 8 complaint. 9 If plaintiff chooses to file a second amended complaint, plaintiff must set forth the 10 jurisdictional grounds upon which the court’s jurisdiction depends. Federal Rule of Civil 11 Procedure 8(a). Further, plaintiff must demonstrate how the conduct complained of has resulted 12 in a deprivation of plaintiff's federal rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). 13 In addition, plaintiff is informed that the court cannot refer to a prior pleading in 14 order to make plaintiff's second amended complaint complete. Local Rule 15-220 requires that 15 an amended complaint be complete in itself without reference to any prior pleading. This is 16 because, as a general rule, an amended complaint supersedes the original complaint. See Loux v. 17 Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files a second amended complaint, the 18 original pleading no longer serves any function in the case. Therefore, in a second amended 19 complaint, as in an original complaint, each claim and the involvement of each defendant must 20 be sufficiently alleged. Plaintiff may request that earlier-submitted exhibits be re-appended to 21 the second amended complaint so they are not duplicated in the record. 22 Plaintiff is cautioned that she should not include any allegation concerning a 23 requirement that defendants produce a promissory note or an original note in any second 24 amended complaint. Failure to timely file a second amended complaint will result in a 25 recommendation that this action be dismissed. 26 ///// 4 1 On November 2, 2009, plaintiff filed a motion for re-hearing on the motion to 2 dismiss. Plaintiff claims she was confused as to the status of her case but did not intend to fail to 3 appear at the October 15, 2009 hearing. In light of the above, no re-hearing is necessary, and 4 plaintiff’s motion will be denied. 5 Accordingly, IT IS ORDERED that: 6 1. The June 17, 2009 findings and recommendations (#20) are vacated. 7 2. Defendant’s April 15, 2009 motion to dismiss (#14) is denied without 8 prejudice. 9 10 3. Defendant’s August 11, 2009 motion to dismiss (#29) is denied without prejudice. 11 4. Plaintiff’s complaint (#1) is dismissed. 12 5. Plaintiff’s first amended complaint, appended to her September 30, 2009 13 opposition (#31), is dismissed with leave to amend. Plaintiff is granted thirty days from the date 14 of service of this order to file a second amended complaint that complies with the requirements 15 of the Federal Rules of Civil Procedure, and the Local Rules of Practice; the amended complaint 16 must bear the docket number assigned this case and must be labeled "Second Amended 17 Complaint"; plaintiff must file an original and two copies of the second amended complaint; 18 failure to file a second amended complaint in accordance with this order will result in a 19 recommendation that this action be dismissed. 20 21 6. Plaintiff’s November 2, 2009 motion for re-hearing is denied. DATED: November 12, 2009. 22 23 24 25 /001; wong.vac 26 5
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
