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Izenberg v. ETS Services

December 8, 2008

LARRY IZENBERG, AMY IZENBERG, AND ELAINE FREEDBERG, PLAINTIFFS,
v.
ETS SERVICES, LLC, DOE 1, AND DOES 2-50, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Margaret M. Morrow, District Judge

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

On August 8, 2008, plaintiffs Larry Izenberg, Amy Izenberg and Elaine Freedberg commenced this action against Executive Trustee Services, LLC ("ETS"), erroneously sued as ETS Services, LLC, and various unnamed defendants in the Los Angeles Superior Court. On October 20, 2008, ETS removed the case to federal court. Seven days later, it filed a motion to dismiss plaintiffs' complaint for failure to state a claim on which relief could be granted.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Plaintiffs' Allegations

Plaintiffs alleges that they are the owners of real property located at 20236 Clark Street, Woodland Hills, California 91367.*fn1 They assert that ETS is "proceeding toward a Trustee's sale" of the property,*fn2 purportedly at the direction of an unnamed individual or entity identified as "Doe 1." *fn3 Plaintiffs contend that Doe 1 is not the holder of the note secured by a deed of trust on the property,*fn4 and that he does not have a legal right to foreclose.*fn5 Plaintiffs have allegedly notified ETS of their view that Doe 1 has no right to foreclose, and have requested that ETS suspend the foreclosure sale "unless and until it has obtained proof that Doe 1 actually has in its possession the original note properly endorsed to it or assigned to it as of a date preceding the notice of default recorded by ETS." *fn6 ETS has not suspended its foreclosure activities or provided plaintiffs with the requested proof.*fn7

Plaintiffs assert that they have demanded that ETS provide "proof of [its] right to proceed [with the] foreclosure in writing," as well as "a detailed accounting of how the stated amount necessary to be paid to redeem the property from foreclosure has been calculated so that [p]laintiff[s] could adequately evaluate [their] rights under the law [to exercise their] presale right of redemption." *fn8 The complaint alleges that ETS's response to these requests has been inadequate.*fn9

Plaintiffs also allege in conclusory fashion that ETS's conduct in this case is part of a "pattern and practice" of such activity. They state that "the [d]efendants and each of them, in so acting in this case and with respect to many other mortgage or trust deed security instruments engage in a pattern and practice of utilizing the non-judicial foreclosure procedures of this State to foreclose on properties when they do not, in fact, have the right to do so"; *fn10 that "[i]n all the wrongful acts alleged in this complaint, the [d]efendants and each of them have utilized the United States mail in furtherance of their conspiracy"; *fn11 and finally that "[d]efendants, and each of them, in committing the acts alleged in this and in other cases are engaging in a pattern of unlawful activity." *fn12

Plaintiffs' complaint pleads claims under the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq.; the Rosenthal Fair Debt Collection Practices Act ("RFDCPA"), California Civil Code § 1788 et seq; the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2601 et seq.; the Home Ownership and Equity Protection Act ("HOEPA"), 15 U.S.C. § 1639; the Truth in Lending Act ("TILA"), 15 U.S.C. § 1601; the Federal Trade Commission Act ("FTC Act"), 15 U.S.C. § 41 et seq; and the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq.

B. ETS's Motion to Dismiss

On October 27, 2008, ETS filed a motion to dismiss plaintiffs' complaint. ETS argues that the complaint fails to state a claim against it on which relief may be granted. It further argues that plaintiffs' fraud-based allegations are not pled with particularity as required by Rule 9(b) of the Federal Rules of Civil Procedure. The court issued an order setting a briefing schedule on ETS's motion, which required that plaintiffs file opposition by November 17, 2008. As of the date of this order, plaintiffs have not opposed ETS's motion.

II. DISCUSSION

A. Plaintiff's Failure to File Opposition

Local Rule 7-12 provides that "[t]he failure to file any required paper, or the failure to file it within the deadline, may be deemed consent to the granting or denial of the motion." CA CD L.R. 7-12. As noted, plaintiffs failed to file opposition by the date set forth in the court's briefing schedule order. Under Rule 7-12, the court could grant the motion on this basis alone. See Cortez v. Hubbard, No. CV 07-4556-GHK (MAN), 2008 WL 2156733, *1 (C.D.Cal. May 18, 2008) ("Petitioner has not filed an Opposition to the Motion and has not requested any further extension of time to do so. Pursuant to Local Rule 7-12, his failure to do so could be deemed to be consent to a grant of the Motion"); Mack-University LLC v. Halstead, No. SA CV 07-393 DOC (ANx), 2007 WL 4458823, *4 n. 4 (C.D.Cal. Sept. 25, 2007) (where a party "failed to oppose or in any way respond" to a motion, the court held that "[p]ursuant to local Rule 7-12, the Court could grant Plaintiffs' Motion on this ground alone"); Ferrin v. ...


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