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Tina v. Countrywide Home Loans

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


January 5, 2009

ROSARIO TINA AND JESUS G. TINA, PLAINTIFFS,
v.
COUNTRYWIDE HOME LOANS, INC., AMERICA'S WHOLESALE LENDER, RECONTRUST COMPANY, DEFENDANTS.

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

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS (Doc. No. 13)

Plaintiffs Rosario Tina and Jesus G. Tina, proceeding pro se, filed this action on July 10, 2008 against mortgage lender Countrywide Home Loans, Inc. ("Countrywide"), which does business as America's Wholesale Lender, and Countrywide's trustee for foreclosure servicing, ReconTrust Company ("ReconTrust"). (Doc. No. 1.) Concurrently, Plaintiffs filed an ex parte application for a temporary restraining order ("TRO") and preliminary injunction to stay the foreclosure of their property scheduled for July 11, 2008. (Doc. No. 3.) The court denied the TRO request on August 5, 2008. (Doc. No. 12.) Defendants moved to dismiss the complaint under Fed. R. Civ. Pro. 12(b)(6), and, in the alternative, for a more definite statement under Rule 12(e). (Doc. No. 13.) On October 30, 2008 the court granted in part and denied in part the motion to dismiss, granted the motion for a more definite statement on the remaining claims, and gave Plaintiffs 45 days leave to file a First Amended Complaint. (Doc. No. 22.)

On December 22, 2008, Plaintiffs attempted to file a document entitled "First Amended Complaint." The document was rejected as untimely, having been filed beyond the 45-day leave granted by the court. (Doc. No. 24.) In addition, the court rejects the document for failure of service as the accompanying certificate of service was unsigned, and is therefore invalid, and it appears the document was never served on the defendants in this case. Further, although the court provided specific guidance as to the required content of a First Amended Complaint, Plaintiffs' submission generally reiterates the allegations of the original Complaint and cures none of the deficiencies outlined by in the court's October 30 order. For these reasons, Plaintiffs' First Amended Complaint is REJECTED for filing.

IT IS SO ORDERED.

20090105

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