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Cleveland v. Deutsche Bank National Trust Co.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


August 11, 2008

JOSEPHINE CLEVELAND, PLAINTIFF,
v.
DEUTSCHE BANK NATIONAL TRUST COMPANY, TRUSTEE FOR NEW CENTURY, NEW CENTURY MORTGAGE CORP., CHASE HOME FINANCE LLC, DEFENDANTS.

The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge

ORDER GRANTING MOTION TO DISMISS; GRANTING LEAVE TO AMEND

Defendants Deutsche Bank National Trust Company, Trustee for New Century, and Chase Home Finance LLC move to dismiss the Truth in Lending Act ("TILA") complaint filed by Plaintiff Josephine Cleveland. The complaint, filed on May 1, 2008, alleges two claims: one for rescission for failure to provide the right of rescission notice required by 15 U.S.C. §1635(a) and the other for failure to make the disclosures required by 15 U.S.C. §1638 and Regulation Z. On May 16, 2008 the court denied Plaintiff's motion for a temporary restraining order on the ground that she failed to show any likelihood of success on the merits as her TILA claims were barred by the statute of limitations. (Order Denying Temporary Restraining Order, May 16, 2008 ("Order")).

Among other things, the present motion to dismiss raises the statute of limitations as a bar to the TILA claims and Plaintiff concedes that she cannot maintain a TILA claim against Chase. For the reasons set forth in this court's prior Order, the motion to dismiss is granted without prejudice and with leave to amend.

In her opposition, Plaintiff requests leave to amend to state a claim for, among other things, what she characterizes as "wrongful foreclosure." (Oppo. at p.3:17-19). As leave to amend is to be freely given, Fed.R.Civ.P. 15(a), the court grants Plaintiff 20 days leave to amend from the date of entry of this order.

Finally, as an administrative matter, the Clerk of Court is instructed to deny Plaintiff's motion to amend as moot, (Docket No. 27), as Plaintiff has obtained the relief requested.

IT IS SO ORDERED.

20080811

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