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Mahmutovic v. Mortgage Electronic Registration Systems Inc.

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


September 25, 2009

SUVADA MAHMUTOVIC, PLAINTIFF,
v.
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., ET AL., DEFENDANTS.

The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

MEMORANDUM AND ORDER

This wrongful foreclosure case, after a somewhat tortured history, is before this Court on Defendants' Motion to Dismiss Plaintiff's Complaint. In Opposition to Defendants' Motion, Plaintiff's counsel made only vague and hyperbolic accusations after which he stated as to each individual claim, "Plaintiffs [sic] contend that sufficient facts have been alleged in their [instant claim] to state a cause of action for [the claim]." While this Court believes counsel honestly, if unreasonably, considered this response sufficient, it is in practice painfully inadequate.

Moreover, when given a chance at oral argument to explain the inadequacies of the Opposition, counsel argued only that the requisite facts were pled in the Complaint, which is comprised of approximately 377 paragraphs. Nevertheless, when questioned, for example, as to whether his client had alleged as part of her rescission claim any ability and willingness to tender the underlying loan proceeds, counsel admitted Plaintiff had not and acknowledged on the record that such a pleading failure was fatal to Plaintiff's instant claim.

In sum, it is clear to the Court that Plaintiff's counsel opposed Defendants' Motion in form, but not in substance, and it is not for this Court to act for Plaintiff where her counsel has failed her. This Court will not hypothesize as to Plaintiff's available arguments, nor will the Court speculate as to how counsel might have responded had he chosen to make any substantive points.

Accordingly, Defendants' Motion to Dismiss (Docket No. 4) is GRANTED. Nevertheless, with the greatest of reluctance, the Court will permit Plaintiff one opportunity to amend. Plaintiff may (but is not required to) file an amended complaint, not later than twenty (20) days after the date this Memorandum and Order is filed electronically.

Nevertheless, if no amended complaint is filed within said twenty (20)-day period, without further notice, those causes of action hereby dismissed will be deemed to have been dismissed with prejudice.

IT IS SO ORDERED.

20090925

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