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Duran v. Aurora Loan Services

April 23, 2009

JOHN DURAN, PLAINTIFF,
v.
AURORA LOAN SERVICES; QUALITY LOAN SERVICE CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

FINDINGS AND RECOMMENDATION REGARDING DISMISSAL OF CLAIMS AGAINST QUALITY LOAN SERVICE CORPORATION

Plaintiff John Duran ("Plaintiff"), appearing pro se and proceeding in forma pauperis, filed an initial complaint in this matter on January 22, 2009, naming Aurora Loan Services and Quality Loan Service Corporation as Defendants.

On January 30, 2009, the Court dismissed Plaintiff's complaint with leave to amend. The Court explained the legal standards for Plaintiff's alleged claims and provided instruction for filing an amended complaint. The Court explained the elements of a Fair Debt Collection Practices action against a debt collector as well as the limited jurisdiction of this Court. The Court gave Plaintiff thirty (30) days to amend his complaint and reminded Plaintiff that an amended complaint supercedes the original complaint and must be complete in itself.

Plaintiff requested an extension of time to file an amended complaint, which the Court granted on March 12, 2009. On April 3, 2009, Plaintiff filed a document entitled "Supplemental to Amended Complaint." (Doc. 9). Plaintiff filed an amended complaint on April 6, 2009. (Doc. 10). For the reasons discussed below, the Court recommends that this action be dismissed against Quality Loan Service Corporation without leave to amend. Contemporaneous with this recommendation, the Court has issued an order dismissing the action against Aurora Loan Service with leave to amend.

DISCUSSION

A. Allegations

In his Amended Complaint, Plaintiff names Aurora Loan Services and Quality Loan Service Corporation. Plaintiff alleges that he entered into a Home Retention Program agreement with Aurora Loan Services with the promise that an existing mortgage loan would be modified. Plaintiff asserts that Aurora disposed of the property at auction for a mere $46,000.00 and contends that it was an act of malice and bad faith intent. Plaintiff further alleges that Aurora entered an agreement to modify the loan and defaulted.

As to Quality Loan Services, Plaintiff alleges that it is an agency attempting to collect a debt and is obligated to comply with the mandates of the Fair Debt Collection Practice Act. Plaintiff further alleges that Quality failed to produce the original note to allow the debtor to examine its contents.

Although not entirely clear from the Amended Complaint, Plaintiff also appears to request judicial notice of the following:

"'Four Corners Rule' of any contract for violations of Truth in Lending Act (TILA), Real Estate Settlement Procedures Act (RESPA), Home Ownership and Equity Protection Act (HOEPA), Equal Credit Opportunity Act (ECOA), Breach of Contract, Real Party in Interest, Unconscionabiltiy [sic] and Failure to Establish Conditions Precedent...."

Amended Complaint, p. 3-4. Plaintiff contends that Defendants caused a monetary loss for foreclosing on Plaintiff's investment by "bad faith" collections practices. Plaintiff explains that the only remedy he is seeking "is to return the property for a sales price of $40,000.00, via their original bank of origin...." Amended Complaint, p. 5.

B. Screening Standard

Pursuant to 28 U.S.C. § 1915(e)(2), the court must conduct an initial review of the complaint for sufficiency to state a claim. The court must dismiss a complaint or portion thereof if the court determines that the action is legally "frivolous or malicious," fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). If the court determines that the complaint fails to state a claim, leave to amend may be granted to the extent that the deficiencies of the complaint can be cured by amendment.

In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts ...


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